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i. that the plaintiff was given possession of the suit property pursuant to an agreement of sale; ii. The" plaintiff has paid the amount of the agreed consideration substantially; iii. The defendant has not executed sale-deed in favour of the plaintiff; iv. The plaintiff continues to be in possession of the land though there is no sale deed in his favour, v. The plaintiff filed a civil suit seeking a decree of perpetual injunction against the defendant, who is transferor, restraining him from disturbing the possession of the plaintiff; 6. Section 53-A of the Act, which falls for consideration reads as under:-- 53-A. Part performance.-- Where any person contracts to transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, JUDGMENT D.K. Deshmukh, J. 1. The Hon'ble the Chief Justice has constituted this Bench for consideration and decision of the following point. "Whether a suit simplicitor for injunction which is filed seeking protection under Section 53-A of the Transfer of Property Act is maintainable". 2. The facts giving rise to the reference are, one Eknath Pandharinath Nangude, present respondent, filed a civil suit seeking a decree of perpetual injunction restraining the defendant, present Appellant, from disturbing the possession of the plaintiff of two acres of land out of Gat No. 102 situated at village Gorhe Khurd, Taluka; Haveli, District; Pune. The case of the plaintiff is that on 20-2-1975 an agreement of sale was entered into between the plaintiff and the defendant for sale of two acres of land from Gat No. 102 situated at village Gorhe Khurd, Taluka; Haveli, District; Pune (hereinafter referred to as the "suit land") for consideration of Rs. 9,000/-. On the date of the agreement an amount of Rs. 5000/- out of the agreed consideration was paid by the plaintiff to the defendant and the defendant placed the plaintiff in possession of the land. According to the plaintiff on 25-2-1977 he paid further amount of Rs. 3000/- to the defendant. According to the plaintiff, the defendant did not execute the sale deed. According to the plaintiff on 2-7-1992 the defendant and the members of his family obstructed the plaintiff from cultivating the suit land. He, therefore, filed the suit seeking a decree of perpetual injunction restraining the defendant from disturbing the possession of the plaintiff of the suit land. He claimed that he is in possession of the land pursuant to the agreement dated 20-2-1975 as a prospective purchaser. In this suit on an objection being raised by the defendant preliminary issue was framed to the effect "whether a suit simplicitor for injunction seeking protection under Section 53-A of the Transfer of Property Act is maintainable?" The trial Court decided the issue and held that such suit is not maintainable and dismissed the suit. The order of the trial Court was challenged in appeal. The Appellate Court, however, came to the conclusion that such a suit is maintainable and therefore remanded the suit back for trial to the trial Court. It is against this order of the Appellate Court that Appeal From Order No. 1119 of 1995 was filed before this Court. This appeal was heard by the learned Single Judge. The learned Single Judge found that two learned Single Judges of this Court have held that a suit simplicitor for injunction for protection of the rights of the plaintiff under Section 53-A of the Transfer of Property Act is not maintainable. The two Judgments were, one in the case of Hussain Khan s/o Sawarkhan Pathan v. Shaikh Ahmed s/o Shaikh Lal, reported in 1988 Mh.L.J. 55 and the other in the case of Mathurabai K. Koli v. Roopchand L. Koli . The learned single Judge also found that another learned single Judge of this Court by judgment in the case of Mahadeo Nathuji Patil v. Surjabai Khushalchajid Lakkad and Ors. reported in 1994 Mh.LJ. 1145 has on the contrary held that such a suit is maintainable. The learned single Judge finding a clear conflict of opinion referred the matter to Hon'ble the Chief Justice for referring the issue either to the Division Bench or to the Full Bench. The Hon'ble the Chief Justice, therefore, constituted this Bench for consideration of the aforesaid issue. 3. The learned Counsel appearing for the Appellant submits that the judgment of the learned Single Judge in the case of Hussain Khan referred to above holding that such a suit is not maintainable relies on a judgment of the Privy Council in the case of Probodh Kumar Das and Ors. v. Dantmara and Company Ltd. , and therefore in the submission of the learned Counsel, the learned Single Judge who decided Dharmaji's case was not justified in taking a different view. The learned Counsel further submits that the learned Single Judge in the judgment in the case of Mathurabai K. Koli for taking the same view apart from relying on the judgment of the learned Single Judge in Hussain Khan's case also relied on the judgment of the Division Bench of this Court in the case of Yeshwantrao Martandrao Mukane v. Khushal R. Bhatia, 1986 Mh.LJ. 659 : 1986 (1) BCR 533 and has reached the same conclusion. According to the learned Counsel, therefore, the learned single Judge who decided Dharmaji's case was not justified in holding that a suit of such a nature is maintainable. The learned Counsel submits that Section 53-A of Transfer of Property Act by itself does not create any right in the prospective purchaser who is in possession pursuant to an agreement to sell. It only creates an equity in favour of such a prospective purchaser that he is entitled to raise the defence based on the provisions of Section 53-A of the Transfer of Property Act to protect his possession in a suit which is filed against him. According to the learned Counsel the protection under Section 53-A of the Transfer of Property Act can be claimed by the prospective purchaser in possession only as a defendant and not as a plaintiff. 4. On behalf of the respondent, on the other hand, it is submitted that Section 53-A has been enacted to put restriction on the right of the owner of the property who has entered into agreement to sell the property and has delivered possession of that property to the prospective purchaser. According to the learned Counsel, thus, Section 53-A of the Act has been enacted for the benefit of the prospective purchaser who is in possession pursuant to an agreement for sale. Section 53-A thus confers a right on the prospective purchaser to continue in possession of the property which he had agreed to purchase. This right is given by the statute to the prospective purchaser to defend his possession. He can defend that possession in case it is threatened by the owner even by instituting a suit himself. He can also raise it as a defence in case the owner files a suit against him. The learned Counsel relies on a judgment of the Supreme Court in the case of Patel Natwarlal Rupji v. Kondh Group Kheti Vishayak and Anr., and submits that the Supreme Court has held that Section 53-A confers a right on the transferee to the extent that it imposes a bar on the transferor, to protect the transferee's right to retain possession of the property under the contract. The learned Counsel also relies on the judgment of the Supreme Court in the case of Biswabani Pvt. Ltd. v. Santosh Kumar Dutta and Ors., , specially observations in paragraph 9 of that judgment. The learned Counsel also relies on the judgment of the Supreme Court in the case of Delhi Motor Co. and Ors. v. U. A. Basrurkar and Ors., . 5. For the purpose of deciding this reference we are taking following as admitted position: and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract: Provided that nothing in this Section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof. Section 53-A did not find place in the Transfer of Property Act. It was inserted by Act 20 of 1929. The Supreme Court in its judgment in the case of Shrimant Shamrao Suryavanshi and Anr. v. Pralhad Bhairoba Suryavanshi (dead) by Lrs. and Ors., has considered the circumstance in which it became necessary for the Government to set up a Special Committee for making recommendation whether the British equitable doctrine of part-performance be extended to India also. The Supreme Court in paragraph 15 of its judgment in the case of Shrimant Suryavanshi referred to above has referred to the aims and object of the Amending Act, 1929 insofar as provisions of Section 53-A are concerned and has observed that the purpose behind enacting Section 53-A was to provide protection to a transferee who in part performance of the contract has taken possession of the property even after limitation to bring a suit for specific performance has expired. Perusal of the provisions of Section 53-A shows that before the transferee becomes entitled to claim protection of the provisions of Section 53-A of the Transfer of Property Act, he has to satisfy certain conditions. Those conditions are (i) there must be a contract for transfer for consideration of any immoveable property; (ii) the contract must be in writing, signed by the transferor, or by someone on his behalf; (iii) the writing must be in such words from which the terms necessary to construe the transfer can be ascertained; (iv) the transferee must in part-performance of the contract take possession of the property, or of any part thereof; (v) the transferee must have done some act in furtherance of the contract; and (vi) the transferee must have performed or be willing to perform his part of the contract; 7. For the purpose of deciding this reference we are proceeding on the basis that the plaintiff, transferee, has complied with all these conditions which are necessary to be complied with in terms of the provisions of Section 53-A of the Transfer of Property Act for the transferee to be entitled to claim the equity under Section 53-A of the Act to protect his possession of the suit property. 8. Therefore, the only controversy to be considered is whether the transferee is entitled to maintain the suit seeking a decree of perpetual injunction restraining the transferor from disturbing his possession. 9. Perusal of the above quoted Section 53-A shows that the provision does confer right on the transferee if the conditions of that Section are fulfilled. The right that is conferred on such a transferee is to have the transferor or any person claiming under him barred from enforcing against the transferee and person claiming under him any right in respect of the property of which the transferee has taken or continued in possession. Thus the right that is conferred on the transferee is that as against the transferor or any person claiming under him the transferee can protect his possession. The purpose behind Section 53-A is thus to provide a shield of protection to the proposed transferee to remain in possession against the original owner who has agreed to sell the land to the transferee if the proposed transferee satisfies other conditions of Section 53-A. That protection is available to the transferee as a shield against the transferor and would disentitle the transferor from disturbing the possession of the proposed transferee who is put in possession pursuant to such agreement. But this has nothing to do with the ownership of the proposed transferor who remains full owner of the land till it is legally conveyed by sale-deed to the proposed transferee. In other words on the basis of the provisions of Section 53-A, the proposed transferee, who is in possession, cannot claim title. On the basis of Section 53-A the transferee in possession cannot institute a suit for declaring himself as the owner of the land. 10. So far as the judgment of the learned Single Judge in Hussain Khan's case is concerned, the learned Single Judge has relied on the judgment of the Privy Council in the case of Probodh Kumar Das and Ors. v. Dantmara and Company Ltd. It appears that that judgment has been considered by the Division Bench of Allahabad High Court in the case of Pandit Ram Chander v. Pandit Maharaj Kunwar and Ors. , and the Division Bench has observed thus :-- It was contended for the plaintiff that in the present suit he was merely seeking the remedy which Section 53-A, T. P. Act, afforded debar the defendants from enforcing against him a right in respect of the property of which he had taken possession. It was maintained for the respondents on the other hand that the benefits of the provisions of Section 53-A were only available to a party in litigation who was a defendant. In support of this contention learned counsel for the respondents referred to the case in 41 C W N 54. This decision clearly supports the defendants' contention. The case is however distinguishable from the present because there the transferee sought a direct relief in support of his title. The decision appears to have been based upon certain observations of Lord Macmillan in the Privy Council case in 1934 ALJ 912. At page 916 of the judgment of the Board it is observed : It remains to take note of the fact that since the present suit was brought the law in India has been altered by the Transfer of Property (Amendment) Act 20 of 1929 which has inserted a new Section 53-A in the principal Act, whereby a defendant in an action of ejectment may, in certain circumstances, effectively plead possession under an unregistered contract of sale in defence to the action. Their Lordships' views, as expressed in the present case, must therefore be understood to be referable to the state of law before this partial importation into India of the English equitable doctrine of part performance. Learned Counsel for the defendants-respondents founded particularly upon the words whereby a defendant in an action of ejectment may, in certain circumstances, effectively plead possession under an unregistered contract of sale in defence to the action. In the first place it is to be noted that the above observations of the Board are obiter, and, secondly, it does not at all follow from these observations that their Lordships intended to lay down that the only remedy which was open to a transferee under Section 53-A, T. P. Act, was to plead as a defendant in possession under an unregistered or invalid document. We would note further that the above observation concludes with the statement that the views of the Board, as expressed in the case, must be understood to be referable to the state of law before the introduction of Section 53-A, into the T. P. Act in 1929. In our judgment, that part of Section 53-A, T. P. Act, under consideration presents little difficulty. The words appear to us to be perfectly simple and straightforward. Where a person has been party to a transfer which is invalid because the formalities of the law have not been complied with, then that person is to be debarred from enforcing, as against his transferee, any right in respect of the property of which the transferee has taken or continued in possession. In other words, the intention of the Legislature plainly was that the transferor was not to be entitled merely because the transfer was invalid as the result of a non-compliance with the formalities of the law to enforce, as against the transferee, a right which the deed of transfer was intended to convey. It is clear from the above observations that in the case that was considered by the Privy Council the proposed transferee in possession had instituted a suit seeking transfer of title in his favour and in those circumstances the Privy Council observed that the proposed transferee in possession can only take benefit of the provisions of Section 53-A to protect his possession. 11. In our opinion, in view of the judgment of the Supreme Court in the case of Patel Natwarlal Rupji (supra) really speaking the question that has been referred stands answered. The Supreme Court in that case was considering the rights that are conferred on the proposed transferee in possession by the provisions of Section 53-A of the Act. The observations of the Supreme Court in paragraphs 6 and 7 of that judgment, in our opinion, are relevant. They read as under :-- 6. Though the doctrine of part performance embodied in Section 53-A of the Act is part of equitable doctrine in English law. Section 53-A gives statutory right which is available to the transferee for consideration in possession of the property had under the contract. In terms of the section, so long as the transferee has done and is willing to perform his part of the contract or, in other words, is always ready to abide by the terms of the contract and has performed or is always ready and willing to perform his part of the contract, the transferee is entitled to avail of this statutory right to protect his possession as a shield but not as a sword. The right to retain possession of the property rests on the express provisions 6f the Act and on his compliance thereof. A person who pleads equity must come to the Court with clean hands and he alone is entitled to the benefit of this section. The section does not create a right or title in the defendant. It merely operates as a bar to the plaintiff to assert his title. The transferor is barred from enforcing his rights other than those expressly provided by the contract. The section, therefore, imposes a bar on the transferor, when the conditions mentioned in the section are fulfilled by the transferee, and the section also bars the transferor to enforce his rights against such transferee or person deriving right, title and interest from such transferee. It would, therefore, be clear that Section 53-A confers a right on the transferee, to the extent it imposes a bar on the transferor, to protect the transferee's right to retain possession of the property had under the contract. It would thus be clear that Section 53-A confers no title on the transferee but imposes a statutory bar on the transferor to seek possession of the immovable property from the transferee. Equally, Section 53-A does not confer any title on the defendant in possession or can he maintain a suit on title, 7. In Ram Gopal Reddy v. Addl. Custodian Evacuee Property, a Constitution Bench of this Court had held that the benefit of Section 53-A cannot be taken aid of by the plaintiff to establish his right as owner of the property. Therefore, Section 53-A can be used as a shield but not as an independent claim either as a plaintiff or as a defendant. In Delhi Motor Co. v. U.A. Basrurkar, a Bench of three Judges had held that Section 53-A is meant only to bring out a bar against the enforcement of a right by a lessor in respect of the property of which the lessee had already taken possession but does not give any right to the lessee to claim possession or to claim any other right on the basis of an unregistered lease. Section 53-A is available only as a defence to a lessee and not as conferring a right on the basis of which the lessee can claim rights against the lessor. In that case the appellants had put forward certain documents as a lease which was admittedly beyond 11 months and, therefore, It was held that the company was not entitled to avail of the statutory right under Section 53-A. In Sardar Govindrao Mahadik v. Devi Sahai, this Court had held that the Court would look at the writing that is offered as a contract for transfer for consideration of any immovable property, then examine the acts said to have been done in furtherance of the contract, and find out whether there is a real nexus between the contract and the acts pleaded as a part performance so that to advantage or benefit of the contract, backs out and pleads nonregistration as a defence, a defence analogous to Section 4 of the Statute of Frauds. In that case it was held that the mortgagee in possession was not entitled to claim title of ownership against suit of mortgagor for redemption. Therefore, the doctrine of part performance in Section 58(3) was held not available to establish title to the property. In Sheth Maneklal Mansukhbhai v. Hormusji Jamshedji Ginwalla and Sons, this Court had held that Section 53-A of the Act is only a partial importation of English doctrine of part performance. It is clear from the observations of the Supreme Court quoted above that Section 53-A of the Act imposes a statutory bar on the transferor to seek possession ok the immovable property from the transferee in possession. In other words, therefore, it disentitles the transferor from seeking possession from the proposed transferee in possession. Therefore, if the transferor, though he has been denied that right by Section 53-A, tries to take possession forcibly, the proposed transferee in possession would be entitled to institute a suit to enforce the bar of Section 53-A against the transferor. In such a situation, when the proposed transferee in possession comes to the Court seeking a decree of perpetual injunction restraining the transferor from disturbing his possession, he does not come to the Court for enforcement of any rights conferred on him, but he comes to the Court for enforcement of the bar created by Section 53-A against the transferor. If the proposed transferee in possession is denied the right to institute a suit for enforcing the bar against the transferor enacted by Section 53-A so as to protect his possession, then the proposed transferee in possession would be rendered remedyless. In our opinion from the observations of the Supreme Court quoted above it is clear that when it is said that the proposed transferee in possession can use Section 53-A as a shield, but not as a sword, it means that he can use Section 53-A either as a plaintiff or as a defendant to protect his possession, but he cannot use Section 53-A either for getting title or for getting possession if he is not actually in possession. To put it in other words, when the transferee in possession comes to the Court as a plaintiff seeking a decree of perpetual injunction against the transferor he is using Section 53-A as a shield to protect his possession. It is thus clear that the proposed transferee in possession cannot use Section 53-A to sue the transferor for a declaration of title, but he can avail of benefits of Section 53-A as a shield to retain his possession. 12. Insofar as the judgment of the Supreme Court in the case of Delhi Motor Co, referred to above is concerned, it becomes clear from the observations of the Supreme Court in paragraph 7 of that judgment that the Supreme Court has referred to the judgment of the Allahabad High Court in the case of Ram Chander v. Maharaj Kunwar, as also the judgment of the Privy Council in the case of Probodhkumar Das. It is clear from those observations that the Supreme Court has also read the judgment of the Privy Council referred to above in Probodhkumar Das's case to lay down the law that the proposed transferee in possession, on the basis of the provisions of Section 53-A cannot claim title or any other right. So far as the judgment of the Division Bench in the case of Yashwantrao Mukane is concerned, perusal of that judgment shows that there was a dispute in that case in relation to nature of possession of the plaintiff. In fact, in paragraph 9 a finding has been recorded that the plaintiff did not enter into possession in part performance of the agreement of sale. Thus the controversy that was decided by the Division Bench was totally different. 13. The question whether a suit of particular nature is maintainable or not has to be decided with reference to the provisions of Section 9 of the Code of Civil Procedure. Section 9 of Civil Procedure Code reads as under:-- 9. Courts to try all civil suits unless barred.-- The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. Explanation (I).-- A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies. Explanation (II).-- For the purposes of this section, it is immaterial whether or not any fees are attached to the office referred to in Explanation I or whether or not such office is attached to a particular place. Thus, the Civil Court has jurisdiction to try all suits except where the jurisdiction of the Civil Court to entertain a particular type of suit is either expressly barred by law or it is barred by necessary implications. Insofar as the judgments of the learned Single Judges, who decided the Hussain Khan's case as also the Mathurabai Koli 's case, we do not find any reference made to the provisions of Section 9 of Civil Procedure Code, in order to hold that a suit filed by the prospective purchaser in possession claiming a decree of perpetual injunction restraining the transferor from disturbing his possession, relying on the provisions of Section 53-A of T. P. Act, is not maintainable. We will have to find whether there is any law by which the jurisdiction of the Civil Court to take cognizance of such a suit is either expressly barred or it is barred by necessary implications. No provision of any law is pointed out to us which expressly bars the jurisdiction of the Civil Court to entertain such a suit. Perusal of the judgment of the learned Single Judge in Mathurabai Koli's case shows that in that case agreement was entered into on 1-11-1978, possession of the property was handed over to the prospective purchaser, the entire consideration was also paid, but the sale-deed was not executed, because it was to be executed after obtaining permission from the Revenue authorities. The learned Single Judge found that no steps were taken by the plaintiff in that case to get the sale-deed executed, the plaintiff did not institute a suit for specific performance of the contract and then the learned Single Judge observed in paragraph 4 of the judgment as follows :-- 4. No doubt, the present plaintiff/respondent No. 1 has obtained the possession of the suit land by way of a part performance of an agreement on 1-11-1978 and that the amount of consideration has been paid by the plaintiff. However, the sale deed was to be executed after obtaining the necessary permission from the revenue authorities for executing the said sale deed as per the agreement to sell. These facts point out that since 1978 if the plaintiff/respondent No. 1 is in possession of the land, as to why the permission was not obtained for a period of ten years and if there was avoidance on the part of the defendants to get such a permission. The plaintiff/respondent No. 1 should have insisted for the performance of the said contract. It appears that till 1988 no progress was made. And the averments in respect of this aspect have not been made. However, the moment the plaintiffs possession was questioned in 1988, in fact, that amounted to denial of and/or breach of the agreement to sell and, therefore, the cause of action which takes place on such a occasion is not a cause of action simpliciter for suit of injunction, but a cause of action for filing the suit for specific performance and, therefore, such a plaintiff is supposed to file a suit for specific performance and perpetual injunction. It is very difficult to digest that there will be a separate cause of action for the purpose of suit of injunction and for suit of specific performance of contract. If the cause of action in that eventuality is one and the same, namely, the denial of agreement or violation of breach of agreement, then to permit the filing of two suits on the same cause of action is against the principles of the Code of Civil Procedure, "because the law requires that all those reliefs based on same cause of action should be pleaded and claimed in the same suit and shall not be claimed by separate suit. One more aspect is that Section 41(h) of the Specific Relief Act, states that the Court shall not grant perpetual injunction when there is an equally efficacious remedy available to a party. Equally efficacious remedy in which the injunction can be claimed is a full-fledged suit for specific performance with perpetual injunction. This Court in 1986 Mh.LJ. 659 : 1986(1) BCR 533 (supra) has observed thus: "Clause (e) of Section 41 of the Specific Relief Act is relevant to the extent and in the context of the provisions of Section 53-A of the Transfer of Property Act, which requires the plaintiff to satisfy that he was ready and willing to perform his part of the contract. It is only when such readiness and willingness is there that the contract or agreement for sale can be specifically enforced. If this basic readiness and willingness is not established, then the performance could not be specifically enforced. It follows, therefore, that by reason of the principle underlying Section 41(e) of the Specific Relief Act, when the plaintiff seeks injunction so as to prevent breach of a contract whose performance cannot be specifically enforced, such an application has to be refused. Similarly, when a suitor of such a type would have equally efficacious relief available so as to enforce the contract by taking appropriate remedy, without recourse to it, it would be indeed difficult to extend the discretionary relief of permanent injunction. It is not as if that in a suit to enforce the agreement itself, such a relief is sought. On the other hand, although the plaintiff came to the Court with the allegation that the other party has repudiated the agreement for sale, he has omitted to seek its enforcement and is trying to hold the property obviously without seeking to complete his title by enforcing the agreement for sale. To such a case, the principle underlying Clause (h) of Section 41 of the Specific Relief Act can be extended so as to refuse such an ancillary relief." The above referred judgment has been followed by the Single Judge of this Court in 1988(4) BCR 60 : 1988 Mh.LJ. 55 (supra), wherein it has been observed that the suit filed simpliciter for injunction where the claim is founded purely to claim the protection under Section 53-A of the Transfer of Property Act is not maintainable. Such a suitor is not entitled to claim relief in view of the provisions of Section 41(h) of the Specific Relief Act. In our opinion, even it is assumed that the cause of action for instituting a suit for a decree of specific performance had accrued and the plaintiff in that case omitted to institute the suit for specific performance, then also by virtue of the provisions of Order 2, Rule 2 of Civil Procedure Code the suit of the plaintiff for a decree of specific performance would be barred, but his suit for a decree of perpetual injunction for protecting his possession would not be barred. Insofar as the reference to the provisions of Section 41 of the Specific Relief Act is concerned, it does not operate on the jurisdiction of the Court to entertain a suit, but it relates to the exercise of that jurisdiction. Grant of relief of injunction is in the discretion of the Court and Section 41 lays down as to how that discretion is to be exercised. The learned Single Judge has relied on the judgment of the Division Bench in the case of Yeshwantrao v. Khushal referred to above. But perusal of that judgment as also the observations which have been quoted by the learned Single Judge in paragraph 4 of his Judgment shows that the Division Bench does not hold that because of the provisions of Section 41 of the Specific Relief Act such a suit is not maintainable. The Division Bench says that in such a situation the Court will not grant ancillary relief of injunction in favour of the plaintiff. In our opinion, occasion for a prospective purchaser in possession to institute a suit for perpetual injunction for protecting his possession may arise even when the cause of action for instituting the suit for specific performance has not arisen or where it is barred by the law of limitation. For example, there may be an agreement which allows time to the prospective purchaser, who has been placed in possession, to pay the balance amount of consideration if the possession of such a person is threatened even before the time that is allowed to him for paying the balance amount of consideration is over, in our opinion, he can institute a suit even though the cause of action for instituting a suit for specific performance has not arisen. The Full Bench of this Court in the case of Mahadeo Nathuji Patil v. Surjabai Khushalchand Lakkad and Ors., 1994 Mh.LJ. 1145 has held that the equity under Section 53-A is available to the prospective purchaser even after the period of limitation for instituting a suit for specific performance has expired. We find that the view taken by the Full Bench in Mahadeo Patil's case has been approved by the Supreme Court in its judgment in the case of Shrimant Shamrao Suryavanshi (supra). Paragraphs 20 and 21 of that judgment of the Supreme Court are relevant. They read as under:-- 20. It is, therefore, manifest that the Limitation Act does not extinguish a defence, but only bars the remedy. Since the period of limitation bars a suit for specific performance of a contract, if brought after the period of limitation, it is open to a defendant in a suit for recovery of possession brought by a transferor to take a plea in defence of part-performance of the contract to protect his possession, though he may not be able to enforce that right through a suit or action. 21. In the present case, it is not disputed that the transferee has taken possession over the property in part-performance of the contract. It is also not disputed that the transferee has not brought any suit for specific performance of the agreement to sell within the period of limitation. It is also not disputed that the transferee was always and is still ready and willing to perform his part of the contract. Further, the view taken by the High Court in judgment under appeal was overruled by the Full Bench of the Bombay High Court in the case of Mahadeo Nathuji Patil v. Surjabai Khushalchand Lakkad which, according to our view, lays down the correct view of law. In that view of the matter these appeals deserve to be allowed. It is thus clear that in such a situation where a suit for a decree for specific performance is barred by the Law of Limitation, the prospective purchaser in possession would not be in a position to institute a suit for decree of specific performance, but Section 53-A creates an equity in his favour, as a result of which he is entitled to continue in possession. If it is held that though his possession is protected, he cannot institute a suit in case he finds that his possession has been threatened would amount to denying a remedy for enforcing the equity which is created in his favour by Section 53-A. In a case where the prospective purchaser has a live cause of action for instituting a suit for specific performance, he omits to institute such a suit, and instead files a suit only for perpetual injunction for protection of his possession, in that situation it is for the Court to consider whether to grant him a decree of perpetual injunction or not But that will be in the realm of exercise of the jurisdiction. It will not be a case of absence of jurisdiction to entertain the suit. Therefore, we find that there is nothing in Specific Relief Act also which can be said to have barred the jurisdiction of the Civil Court to take cognizance of such a suit even by necessary implications. 14. From what has been observed above, it becomes clear that in view of the judgment of the Supreme Court now there can be no doubt that a proposed transferee in possession can institute a suit for protection of his possession, which is^ threatened. 15. We answer the reference accordingly.

Author: D Deshmukh

Sadashiv Chander Bhamgare vs Eknath Pandharinath Nangude on 16 April, 2004

Bombay High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 1306 of 2009(E) 1. GLADIS.K.J. M/S.GENERAL SHIPPING & ... Petitioner Vs 1. THE COMMISSIONER OOF CUSTOMS, ... Respondent 2. THE ASSISTANT COMMISSIONER OF CUSTOMS For Petitioner :SRI.SAIGI JACOB PALATTY For Respondent :SRI.TOJAN J.VATHIKULAM,SC,C.B. EXCISE The Hon'ble MR. Justice ANTONY DOMINIC Dated :21/01/2009 O R D E R ANTONY DOMINIC, J. ----------------------------- W.P.(C) No. 1306 of 2009 -------------------------------------- Dated this the 21st day of January, 2009 JUDGMENT Heard both sides. 2. The prayer in this writ petition is to direct the respondents to permit the petitioner to appear for the ensuing oral examination for appointment as Custom House Agent. As per Regulation (8) of the Customs House Agents Licensing Regulations, a candidate who has passed the written examination should pass oral examination within two years. In so far the petitioner is concerned, she had appeared for the written examination and passed the same and result was declared on 22/03/2007. By Exhibit P1, petitioner requested the first respondent to permit her to appear for the next oral examination which is stated to be scheduled to March, 2009. However, she apprehends that she will not be permitted, for the reason that by March, 2009, the two year period specified in the regulation is over. 3. However, learned counsel for the petitioner has produced a judgment of this court W.P(C) No.36476 of 2008 as Exhibit P2, where  W.P.(C) No. 1306 /2009 2 it has been held that the two year period specified in the regulation shall be construed with reference to the date of publication of the results. Since the result of the written examination in which the petitioner appeared was declared on 22/03/2007, if the oral examination is held before 22/03/2009, the petitioner is entitled to appear for the same. Therefore, writ petition is disposed of directing the responds to permit the petitioner to appear for the oral examination for appointment as Custom House Agent, provided the same is held before 23/03/2009. ANTONY DOMINIC, JUDGE scm 

Gladis.K.J. M/S.General ... vs The Commissioner Oof Customs on 21 January, 2009

Kerala High Court

Gujarat High Court Case Information System Print FA/876/1985 2/ 2 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 876 of 1985 ========================================= MAHOMED EJAZ MAHOMED YUSUF SHAIKH - Appellant(s) Versus GOPALBHAI PURSHOTTAMBHAI CHAUHAN & 2 - Defendant(s) ========================================= Appearance : UNSERVED-EXPIRED (N) for Appellant(s) : 1,FRESH NOTICE REQD(N) for Appellant(s) : 1, NOTICE SERVED for Defendant(s) : 1, MS MANISHA NARSINGHANI, AGP for Defendant(s) : 2, MR RAJNI H MEHTA for Defendant(s) : 3, ========================================= CORAM : HONOURABLE MR.JUSTICE RAVI R.TRIPATHI Date : 27/08/2010 ORAL ORDER1. The present First Appeal is filed by one Shri Mahomed Ejaz Mahomed Yusuf Shaikh being aggrieved by judgment and award dated 18.06.1984 passed by the MACT (Main), Narol, Ahmedabad. A common judgment and award was passed by the Tribunal, whereby the Tribunal was pleased to dispose of MACP Nos.789, 7890, 690 and 219 of 1982. In MACP No.790 of 1982, the Tribunal was pleased to pass the following order:- Applicant to recover Rs.25,750/- from all the opponents together with interest thereon at the rate of 6 percent per annum from the date of the filing of the application till payment or realization with proportionate costs. (2) Out of the aforesaid sub of Rs.15,000/- be placed in F.D.Account with any Nationalized Bank for a period of 61 months or for a period of 6 years in National Saving Certificate whichever is beneficial to the applicant. Till then, the applicant is at liberty to receive interest out of the aforesaid amount sum. Rest of the amount be paid in cash to the applicant. (3) F.D.receipt be certified from the Tribunal after investing the above sum with any Nationalized Bank failing which the applicant will be exposed to contempt of proceedings. (4) Deficit Court Fees be recovered from the amount deposited or recovered. (5) Award accordingly. 2. The First Appeal was filed by learned Advocate Mr.A.K.Shah on 13.09.1984, claiming additional amount of Rs.74,250/-. 3. On sad demise of the learned Advocate, notice was issued by this Court to the appellant, which has returned unserved with an endorsement that, the appellant has expired . 4. In light of that, the present appeal abates and the same is disposed of accordingly. (Ravi R.Tripathi, J.) *Shitole     Top

Author: Ravi R.Tripathi,&Nbsp;

Mahomed vs Gopalbhai on 27 August, 2010

Gujarat High Court

> Title : Need to issue directions to bank officers in distribution of package to farmers in Vidarbha, Maharashtra. श्री सुरेश वाघमारे (वर्धा) : उपाध्यक्ष महोदय, माननीयप्रधान मंत्री जी ने विदर्भ के पैकेज में किसानों को ऋण के ब्याज की माफी की घोषणा की, किन्तु ब्याज माफी के निर्देशों में स्पष्टता न होने के कारण आज भी किसानों को समस्याओं से जूझना पड़ रहा है, जैसे किसानों के कर्ज वसूली के लिए जिन किसानों परन्यायालय में मुकदमा चल रहा है, उन्हें आज भी ऋण नहीं मिल पा रहा है। जिन किसानों ने सिंचन व्यवस्था के लिए कर्ज लिया, ट्रैक्टर के लिए कर्ज लिया, जिन किसानों की वस्तु जब्ती में गई, उन किसानों के लिए आज भी कोई स्पष्ट नीति दिखाई नहीं दे रही है जिस कारण बैंक अधिकारी भी असमंजस में हैं। एक सर्वे में देखा गया था कि जिन किसानों ने खेती के साथ पूरक व्यवसाय जोड़े, जैसे दूध का उत्पादन और अन्य कोई व्यवसाय, उन किसानों ने आत्महत्याएं नहीं कीं। ऐसी स्थिति में पैकेज में दूध पैदा करने वाले जानवरों जैसे गाय और भैंस के लिए ७५ प्रतिशत का ऐलान पैकेज में किया गया, लेकिन अधिकारियों की मनमानी के चलते किसानों की लूट हो रही है। इस पर सरकार का कोई नियंत्रण या ध्यान नहीं है। ऐसा कहा गया था कि इस बारे में सरकार की ओर से पूरा ध्यान दिया जाएगा, लेकिन प्रधान मंत्री के पैकेज के बारे में बोलने के बावजूद भी कुछ नहीं हो पा रहा है। इसलिए मैं सरकार से अनुरोध करता हूं कि विदर्भ के पैकेज के लिए जो घोषणा की गई थी, उसे तत्परता से लागू किया जाए।

Need To Issue Directions To Bank Officers In Distribution Of Package ... on 2 August, 2006

Lok Sabha Debates

Gujarat High Court Case Information System Print CA/15706/2010 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL APPLICATION - FOR DIRECTION No. 15706 of 2010 In FIRST APPEAL No. 2468 of 2010 ========================================================= JAYANTIBHAI KESHABHAI PATEL - Petitioner(s) Versus DINESHKUMAR RAMANLAL PATEL & 1 - Respondent(s) ========================================================= Appearance : MR.HIREN M MODI for Petitioner(s) : 1, None for Respondent(s) : 1, MR KK NAIR for Respondent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 23/12/2010 ORAL ORDER In view of the order passed in the application for stay filed by respondent no.2-Insurance Company today, no orders are required to be passed in this application. Hence, the application stands disposed of. [K. S. JHAVERI, J.] Pravin/*     Top

Author: Ks Jhaveri,&Nbsp;

Jayantibhai vs Dineshkumar on 23 December, 2010

Gujarat High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.19862 of 2010 SRI K.K.CHAUBEY Versus HIGH COURT OF JUDICATURE AT PA ----------- 2 8-12-2010 This writ petition is admitted for hearing along with C.W.J.C. No. 10185 of 2010 because according to learned counsel for the High Court other writ petition raises similar issue. Since the High Court and the State of Bihar are already represented no notice need be issued. ( Shiva Kirti Singh, J.) ( Dr. Ravi Ranjan,J) Naresh

Sri K.K.Chaubey vs High Court Of Judicature At Pa on 8 December, 2010

Patna High Court - Orders

Court No. - 19 Case :- FIRST APPEAL FROM ORDER No. -- 3466 of 2009 Petitioner :- Santosh Kumar Respondent :- Sulkhan Singh (Now Dead) & Others Petitioner Counsel :- Shreeprakash Singh,SInt. Archana Singh Hon'ble Sanjay Misra,J. In View of the office report dated 30.1.2010 learned counsel for the appellant prays for and is granted two weeks time to take fresh steps by registered post AD for service of notice on the respondents. Order Date :- 1.2.2010 Pravin

Santosh Kumar vs Sulkhan Singh (Now Dead) & Others on 1 February, 2010

Allahabad High Court

[Section 29] [Complete Act]

Central Government Act

IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.31138 of 2011 Rajo Choudhary Versus The State Of Bihar ------------------ AKV/- (Hemant Kumar Srivastava,J.) 3 13-10-2011 It is pointed out by learned counsel for the petitioner that in the order dated 29-09-2011, in place of Chandradip P.S. Case No. 44 of 2011, it has inadvertently been typed as Chandradip P.S. Case No. 44 of 2010. Let the order dated 29-09-2011 be modified to the extent that Chandradip P.S. Case No. 44 of 2010 mentioned in the order be read as Chandradip P.S. Case No. 44 of 2011. Let the order be communicated to the court of Chief Judicial Magistrate, Jamui in connection with Chandradip P.S. Case No. 44 of 2011 through fax at the cost of the petitioner.

Rajo Choudhary vs The State Of Bihar on 13 October, 2011

Patna High Court - Orders

dsUnzh; lwpuk vk;ksx Central Information Commission ***** Dated: 30.1.2009 ORDER in Case No. CIC/AT/A /2008/00445 Appellant Shri Sanmati Kumar Jain Vs. Respondents Geological Survey of India Hearing held on 20.1.2009 The order of the Commission is as follows: "This matter was taken up for hearing on 20.1.2009. Appellant was absent, while the respondents were present through Shri C.P. Dusad, Deputy Director General (D) & CPIO. 2. During the hearing, the respondent-CPIO, Shri Dusad admitted that there was a delay of 242 days in replying to the appellant's RTI-application dated 12.9.2007. However, Shri Dusad urged that the CPIO dealing with the RTI-petition was not he, but one, Shri Suresh Srivastava, who has since retired. 3. It is found that no useful purpose would be served in prolonging this matter still further, considering specially the fact that the person in whose tenure as CPIO the delay occurred, is now no more in the service of the public authority, viz. Geological Survey of India, having superannuated. 4. Matter is accordingly directed to be closed." (A. N. Tiwari) Information Commissioner Authenticated by Sd/- (D.C. Singh) Assistant Registrar

Shri Sanmati Kumar Jain vs Geological Survey Of India on 30 January, 2009

Central Information Commission

IN THE HIGH COURT OF KERALA AT ERNAKULAM Bail Appl No. 5947 of 2007() 1. P.L.PRINCE,S/O.LONAPPAN, 32 YEARS, ... Petitioner Vs 1. STATE OF KERALA,REPRESENTED BY THE ... Respondent For Petitioner :SRI.SARVOTHAMAN For Respondent : No Appearance The Hon'ble MR. Justice R.BASANT Dated :04/10/2007 O R D E R R.BASANT, J ------------------------------------ B.A.No.5947 of 2007 ------------------------------------- Dated this the 4th day of October, 2007 ORDER Application for anticipatory bail. The petitioner faces allegations under Section 377 I.P.C. The alleged incident took place in 2001. Crime was registered then. Investigation is complete. Final report has been filed. The case was registered as C.C.No.883 of 2004. The petitioner has not appeared before the learned Magistrate so far. Coercive processes have been issued against the petitioner. The petitioner finds a warrant of arrest issued by the learned Magistrate chasing him. 2. According to the petitioner, he is absolutely innocent. He contends that the allegations, even if accepted, cannot amount to an offence punishable under Section 377 I.P.C. The petitioner is willing to surrender before the learned Magistrate and seek regular bail. But the petitioner apprehends that his application for regular bail may not be considered by the learned Magistrate on merits, in accordance with law and expeditiously. He hence prays that direction under Section 438 and/or 482 Cr.P.C may be issued in his favour. 3. The learned Public Prosecutor opposes the application. The learned Public Prosecutor submits that it is for the petitioner to surrender before the learned Magistrate and seek regular bail in the ordinary course. There are no circumstances justifying the invocation of the extraordinary equitable/inherent discretion/jurisdiction under Sections 438/482 Cr.P.C. B.A.No.5947 of 2007 2 4. I have considered all the relevant inputs. After the decision in Bharat Chaudhary v. State of Bihar [A.I.R 2003 S.C 4662], it is well settled that powers under Section 438 Cr.P.C can be invoked even in favour of an accused who apprehends arrest in execution of a non bailable warrant issued in a pending proceedings. But even for that, sufficient and satisfactory reasons must be shown to exist to justify the invocation of the extraordinary equitable discretion under Section 438 Cr.P.C. I do not find any such reasons in this case. 5. It is for the petitioner to appear before the learned Magistrate and seek regular bail. The petitioner can raise his contention including the contention that the allegation will not constitute an offence under Section 377 I.P.C before the learned Magistrate. I find no features in this case which would justify the invocation of the discretion under Section 438 Cr.P.C. I agree with the learned Public Prosecutor, that it is for the petitioner to surrender before the learned Magistrate and seek regular bail. 6. This application is, in these circumstances, dismissed, but with the specific observation that if the petitioner appears before the learned Magistrate and applies for bail after giving sufficient prior notice to the Prosecutor in charge of the case, the learned Magistrate must proceed to pass appropriate orders on merits and expeditiously - on the date of surrender itself. (R.BASANT, JUDGE) rtr/-

P.L.Prince vs State Of Kerala on 4 October, 2007

Kerala High Court

JUDGMENT 1. This appeal has been filed by the third respondent in M.A.C.T.O.P. No. 39 of 1971, in the court of the Motor Accidents Claims Tribunal, North Arcot at Vellore On 24-5-1971 at about 3-50 p.m. one Jeevaratna Mudaliar was run over by a Willy's jeep van belonging to the Malaria Eradication and Maintenance department of the Government of Tamil Nadu. The vehicle was driven by one Annamalai, who is the third respondent in the O.P. It was going on the Bangalore-Madras trunk road and at place near the Shenbakkam cross road, very close to the Vellore town, the accident occurred. The widow of the deceased Jeevaratna Mudaliar and her two daughters filed the O.P. claiming compensation of Rs. 15000. There are three respondents; the first is the State Government; the second is the driver and the third is the Officer who was travelling in the said vehicle at the time of the accident. Some time before the accident occurred, the second respondent had complained of chest pail and therefore, he handed over the vehicle with the third respondent, who had a driving licence and who was also authorised to drive the vehicle in case of necessity. Thus, at the time when the accident occurred, it was the third respondent who was actually at the steering. The allegation of the petitioner was that the death of Jeevaratna Mudaliar was the direct result of the rash and negligent act on the part of the second and third respondents who are employees of the first respondent. The first respondent resisted the petition contending that the death of the victim was not due to any rash and negligent driving; that it was entirely due to the imprudent act on the part of the deceased, viz., in darting across the road in the cycle that was coming behind; that the police who had registered a case in this behalf, had 'referred' the matter and that the State could not be vicariously liable as the third respondent was not acting in accordance with the authority conferred on him. The third respondent in his counter disputed the allegation that he was driving the vehicle in a rash and negligent manner. According to him, he was driving the vehicle only at 15 to 20 miles per hour. Since there was heavy traffic on the road, he had kept himself to the extreme left. At the time of the accident, a lorry was coming opposite to him when Jeevaratna Mudaliar tried to dart across the road. Finding the lorry coming on the opposite direction, the victim got panicky and dropped the cycle on the middle of road and dashed across the road obviously to avoid being knocked down by the lorry. It was, therefore, submitted that he was not at all liable. 2. The Tribunal framed the following two substantial issues or points for consideration, viz.--(1) Whether the accident was due to the rash and negligent act on the part of the third respondent; (2) and if the accident is due to the rash and negligent driving of the third respondent, whether the first respondent was not liable for the tortious act of the third respondent. 3. On this point, it was held that the accident has occurred on account of the rash and negligent act of the third respondent and that both the first and third respondents would be liable for compensation. The compensation was fixed at Rs. 7500. The second respondent was exonerated as he was not driving the vehicle, and the first and third respondents had to pay the compensation as fixed by the Tribunal. The third respondent has alone filed this appeal. 4. Learned counsel for the appellant submitted that the Tribunal was wrong in proceeding as if there was any rash and negligent act on the part of the third respondent. According to the learned counsel, the vehicle was proceeding only at a moderate speed and it was the negligence of the deceased that brought about the accident and loss of life. The Tribunal has discussed this aspect in paras 7 and 8 of its judgment. This is a case of the victim dying on account of running over of the jeep. The victim proceeding towards Vellore on his cycle on the northernmost portion of the road when the vehicle driven by the third respondent knocked him down. There was no suggestion to P.W. 2, who was the only witness examined on behalf of the claimant and that the victim darted across the road, got panicky over the lorry coming from the opposite side and was rushing towards the other side after leaving his cycle in the middle of the road. P.W. 2 is a third party and an eye-witness to the occurrence. There is no reason to doubt his evidence which was to the effect that there was some negligence or rashness on the part of the third respondent, the appellant before me. After considering his evidence, I am not at all satisfied that the plea that the third respondent (appellant) was not negligent, can be accepted. 5. The next contention urged before me was that the appellant ought not to be made personally liable and that as he was driving the vehicle in the course of his duty, the liability was only that of the first respondent, the State. On this point, the decision of the Delhi High Court in the case of P. N. Khanna v. Balbir Singh Kohli, 1972 ACJ 148 was cited before me. That case has considered some of the earlier pronouncements on the same point. In Vanguard Fire and General Insurance Co. Ltd. v. Sarala Devi, ; a Division Bench of the Punjab High Court, enunciated the principles regarding the master's liability for a tort committed by a servant in the following terms:-- "It is well established that the master is bound by the acts of the servant even if the act was unauthorised or prohibited provided the act was within the scope of the service or employment. The principle is that when a servant does any act which he is authorised by his employment to do under certain circumstances and conditions and does it in a manner which is unauthorised and improper even then the employer is liable for the wrongful act of his servant." This decision of the Punjab High Court is itself based on an earlier decision in Bayley v. Manchester Sheffield and Lincolnshire Railway Co. (1873) 8 CP 148. In that case the principle laid down was that:-- "Where a servant is acting within the scope of his employment, and in so acting does something negligent or wrongful, the employer is liable even though the acts done may be the very reverse of that which the servant was actually directed to do". These cases were followed in Vimal Rai v. Gurcharan Singh, 1967 ACJ 115 (Delhi) and also in the case in P. N. Khanna v. Balbir Singh Kohli, 1972 ACJ 148 (Delhi) cited by the learned counsel for the appellant. In fact, there is an earlier decision of the Supreme Court on this point in Sitaram Motilal Kalal v. Santanu Prasad Jaishanker Bhatt, 1966 ACJ 89. In the majority judgment in that case, the following passage occurs-- "A master is vicariously liable for the acts of his servant acting in the course of his employment. For the master's liability to arise, the act must be a wrongful act authorised by the master of a wrongful and unauthorised mode of doing some act authorised by the master. The driver of a car taking the car on the master's business makes him vicariously liable if he commits an accident, is not acting within the course of his employment but is doing something for himself the master is not liable. There is a presumption that a vehicle is driven on the master's business and by his authorised agent or servant but the presumption can be met". Thus, the principle is clear that where a servant is acting within the scope of his employment and in so acting, does something negligent or wrongful, the employer is liable even though the acts done may be the very reverse of that which the servant was actually directed to do. In the present case, the third respondent was travelling in the jeep in the course of his duties for the purpose of delivering certain medicines. The driver suddenly took ill an the problem was either to stop the vehicle and make some arrangement for transport or to take the medicines and deliver them at their destination. The third respondent had a licence to drive the vehicle and he had also been authorised to drive the Government's vehicle in case of necessity. If in the present circumstances, he considered that he had exercised his authority to drive, I do not consider that there is anything unreasonable on his part. It may be that on account of some negligence on his part, he ran over the deceased. But, that he was acting within the scope of the authority cannot be in dispute here. It would, therefore, follow that he had committed a tort in the course of his employment. By the decisions already mentioned, the vicarious liability of the master is clearly applicable. He had to drive, in order to ensure the medicines reaching their destination. His driving was not by choice but by necessity. To make him personally liable in such a situation would be manifestly unjust. Consequently, I consider that in the present case, it is enough to pass the decree against the only first respondent and not as against the third respondent. The decree is accordingly modified. The appeal is allowed and there will be no order as to costs. 6. Appeal allowed.

Annamalai vs Abithakujambal And Ors. on 15 June, 1978

Madras High Court

JUDGMENT D.N. Baruah, J. 1. In this reference under Section 256(1) of the Income-tax Act, 1961 (for short "the Act"), the following three questions have been referred by the Income-tax Appellate Tribunal for the opinion of this court : "1. Whether the Tribunal did not err in facts as well as in law in holding that Rule 6AA which was made effective from August 1, 1981, and which was held to be substantive law by the Tribunal itself, would be applicable in respect of pending assessments as on August 1, 1981 ?" 2. Whether the Tribunal did not err in facts as well as in law in holding that Rule 6AA which was stated to be substantive law and which was brought into the statute with effect from August 1, 1981, would apply in respect of expenses incurred on or before June 30, 1980 ? 3. Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the assessee is entitled to weighted deduction under Section 35(1)(b)(iv) as well as under Section 35(1)(b)(ix) ?" 2. The assessee is a company incorporated under the Companies Act, having tea estates in various places with its registered office at Talap in the District of Tinsukia. The Assessing Officer made the assessment under Section 143(3)/263/251 of the Act for the relevant assessment year 1981-82. The accounting year was 1979-80. While making the assessment in respect of the relevant assessment year, the Assessing Officer found that the assessee claimed Rs. 49,10,069 relating to account sale charges out of which an amount of Rs. 28,41,431 was towards the expenditure on maintaining warehouses in foreign countries for which it claimed weighted deduction under Section 35B of the Act. According to the Assessing Officer, the maintenance of warehouses in foreign countries was not qualified for weighted deduction under the said provisions of Section 35B(1)(b)(iv) of the Act, and as such, he disallowed the same. He also held that the benefit of weighted deduction under Rule 6AA of the Income-tax Rules, 1962 (for short "the Rules"), read with Section 35B(1)(b)(ix) could not be given to the assessee since the said rule came into effect only from August 1, 1981. 3. Being aggrieved, the assessee preferred an appeal before the Commissioner of Income-tax (Appeals). However, the Commissioner of Income-tax (Appeals) allowed the claim of the assessee under Section 35B(1)(b)(iv) because, according to him, the assessee did not maintain any warehouse of its own or together with some other parties, but the expenses on account of hiring of warehouses were incurred by its agent in London and the assessee reimbursed the said expenses to the agent and in that view of the matter, he reversed the order of the Assessing Officer and allowed the deduction. 4. Against the said order passed by the Commissioner of Income-tax (Appeals), the Revenue preferred an appeal before the Income-tax Appellate Tribunal (for short "the Tribunal"). The Tribunal by order dated August 20, 1991, sustained the order of the Commissioner of Income-tax (Appeals) holding that the appellant was entitled to the benefit of deduction under Section 35B(1)(b)(iv) of the Act. That apart, the Tribunal also considered the benefit of Rule 6AA of the Rules which came into effect from August 1, 1981, specifically making provision to allow weighted deduction in connection with the expenditure on maintenance of warehouses outside India. The Tribunal further held that since the entire assessment year was yet to come to an end, the benefit of deduction was available to the assessee and accordingly confirmed the order of the Commissioner of Income-tax (Appeals) and dismissed the appeal of the Revenue. Hence, the present reference. 5. We have heard Mr. G. K. Joshi, learned senior standing counsel appearing on behalf of the Revenue, and Dr. A. K. Saraf, learned counsel appearing on behalf of the assessee. 6. Rule GAA of the Rules was introduced by the Income-tax (Eighth Amendment) Rules, 1981, with effect from August 1, 1981. As per the said Rules, in order to give effect to Sub-clause (ix) of Clause (b) of Sub-section (1) of Section 35B other activities for the promotion of the sale outside India of goods, services or facilities which the assessee deals in or provides for in the course of his business shall be as follows : (a) conducting of pre-investment surveys or the preparation of feasibility studies or project reports : Provided that the pre-investment surveys are conducted or the feasibility studies are made or the project reports are prepared on the request in writing made by the Central Government or a foreign party to whom such goods, services or facilities are likely to be sold or provided by the assessee ; (b) maintenance outside India of a warehouse for the promotion of the sale outside India of such goods ; 7. Undoubtedly this provision is a substantive law. Therefore, there is no indication from the rule-making authority that it will have retrospective effect. 8. In this connection, reference can be made to Maxwell on the Interpre-tation of Statutes, Eleventh edition, page 204, wherein it has been observed as under : " Upon the presumption that the Legislature does not intend what is unjust rests the leaning against giving certain statutes a. fetrospective operation. Nova constitutio futuris formam imponere, debet, non 'praeteritis. They are construed as operating only in cases or on facts which come into existence after the statutes were passed unless a retrospective effect be clearly intended. It is a fundamental rule of English law that no statute shall be construed to have a retrospective operation unless such a construction appears very clearly in the terms of the Act, or arises by necessary and distinct implication." 9. Mr. Joshi has drawn our attention to a decision of the Calcutta High Court in CIT v. Bishnauth Tea Co. Ltd. reported in [1992] 197 ITR 150. In the said decision, the Calcutta High Court had the occasion to deal with the provision of Rule 6AA of the Rules with reference to Section 35B(1)(b)(iv) of the Income-tax Act, 1961, which provides that weighted deduction will be allowed also on such other activities for the promotion of the sale outside India of such goods, services or facilities as may be prescribed. By Rule 6AA of the Income-tax Rules, 1962, which was introduced only with effect from August 1, 1981, the other activities as mentioned in Section 35B(1)(b)(iv) have been prescribed. This rule does not have any retrospective operation in respect of the assessment year 1980-81, although the assessment for the assessment year in question was completed after Rule 6AA came into force. 10. The facts of the present case are entirely similar with that case and, therefore, we fully agree with the decision and conclusions arrived at by the Calcutta High Court and hold that Rule 6AA does not have any retrospective effect and its operation is prospective with effect from August 1, 1981. In view of the above, we answer questions Nos. 1 and 2 in the negative and in favour of the Revenue and against the assessee. 11. As regards question No. 3 learned counsel for the assessee has contended that it is not necessary that the assessee should maintain an office or branch. For claiming the benefit of Section 35B(1)(b)(iv) of the Act, even if the expenditure is incurred by an agent, the assessee can claim deduction of the same. In this connection, Dr. Saraf has placed reliance on a decision of the Calcutta High Court in CIT v. Usha Telehoist Ltd. [1995] 212 ITR 177, wherein the Calcutta High Court held as under (at page 182) : " The word 'agency' used in the section has acquired a clear and definite meaning both under law and in trade. The same meaning shall be attributed to the word in the section and not the meaning suggested by counsel for the Revenue. It is all the more so because the Legislature has deliberately used the disjunctive expression 'or' denoting that the meaning of the words 'branch', 'office' or 'agency' cannot be the same." 12. The High Court further observed as under (at page 183) ; "It is not necessary that the assessee should maintain an office or branch. The question is whether the assessee appointed an agent for the purpose of promotion of sales. The agreement in this case indicates without any doubt, that the agent was appointed for sales promotion and commission was paid. For such promotion payment has been made to the foreign agent with the approval of the Reserve Bank of India." 13. Dr. Saraf has further drawn our attention to a decision in CIT v. Usha Telehoist Ltd. [1995] 212 ITR 177 (Cal). In the said decision the Calcutta High Court held as under (headnote) : " Sub-clause (iv) of Section 35B(1)(b) of the Income-tax Act, 1961, permits a deduction in respect of expenditure incurred wholly and exclusively on maintenance outside India of a branch, office or agency. Agency is an expression of which the content has nothing to do with the preceding words 'office or branch'. As a matter of fact, if the assessee has an agency abroad, that agency cannot refer to any independant establishment of the assessee being maintained abroad because agency always connotes the independence of the agent. An agent is a total master of himself. Hence, it cannot be said that Section 35B(1)(b)(iv) enjoins that the assessee himself has to maintain an office or agency outside India. He can operate through a foreign agent. While the Legislature requires that an agency shall have to be maintained abroad, the requirement is sufficiently satisfied if there is an agent outside who promotes the sales of the asses-see's exports." 14. Reliance has also been placed by learned counsel of the assessee on a decision reported in CIT v. Asiatic Sea Foods [1986] 160 ITR 869, wherein the Kerala High Court held as under (at page 871) : "The expenditure incurred wholly and exclusively for distribution and supply outside India of the goods would qualify for weighted deduction so long as such expenditure does not form part of that incurred on the carriage of goods to a destination outside India. When the goods are stored in the foreign agent's cold storage, the expenditure incurred as storage and handling charges would be expenses on distribution and supply of goods outside India qualifying for weighted deduction." 15. In view of the above, we answer question No. 3 so far as Section 35B(1)(b)(iv) is concerned in the affirmative, in favour of the assessee and against the Revenue. So far as Section 35B(1)(b)(iv) is concerned, we answer the question in the negative, i.e., in favour of the Revenue and against the assessee.

Author: D Baruah

Commissioner Of Income-Tax vs Assam Frontier Tea Ltd. on 19 August, 1996

Gauhati High Court

Chief Justice's Court Case :- SPECIAL APPEAL No. - 420 of 2010 Petitioner :- Asha Devi D/O Babban Prasad Misra ( S/S 1717/2009 ) Respondent :- State Of U.P. Thru Secretary Basic Education Petitioner Counsel :- Dr. L.P. Mishra Respondent Counsel :- Cs.C..,Jyotinjay Verma,Surya Narayan Mishra Hon'ble Ferdino Inacio Rebello,Chief Justice Hon'ble Devi Prasad Singh,J. List in the next cause list. Order Date :- 20.7.2010 RKK/-

Asha Devi D/O Babban Prasad Misra ( ... vs State Of U.P. Thru Secretary Basic ... on 20 July, 2010

Allahabad High Court

Central Information Commission 2nd Floor, August Kranti Bhawan, Bhikaji Cama Place, New Delhi - 110 066 Website: www.cic.gov.in Decision No.5534/IC(A)/2010 F. Nos.CIC/MA/A/2010/000205 CIC/MA/A/2010/000206 Dated, the 9th June, 2010 Name of the Appellant: Shri. Rama Krishna Name of the Public Authority: Visvesvaraya Iron & Steel Plant Facts: i 1. The appellant, an employee of the respondent, has grievances regarding service matters. Through separate applications, he has questioned the action taken by the respondent against the appellant. The CPIO and the Appellate Authority have replied and furnished the information on the basis of available records. Being dissatisfied with the responses, the appellant has submitted two separate appeals which are examined together. 2. The appeals were heard on 9/6/2010 in absence of the appellant. 3. The representatives of the respondent stated that the information as per available records have already been furnished and the appellant has also been invited to inspect the relevant documents so that the desired information could be furnished to him. The appellant or his nominee has, however, not availed of the opportunity of inspection of records. 4. It also emerged during the hearing that the appellant and his associates mainly the family members, have been misusing the provisions of the Act for harassing the officials of the respondent. The appellant has submitted a large number of RTI applications and representations to various bodies for redressal of his grievances regarding service matters. Even though an appropriate action has been taken as per the service rules, the appellant is not satisfied. The appellant has been misusing the provisions of the RTI Act for harassing the officials of the respondent and other public authorities for promotion of his personal interests. i "If you don't ask, you don't get." - Mahatma Gandhi 1 Decision: 5. The CPIO has furnished the information asked for on the basis of available records. In the garb of seeking information, the appellant has indeed been misusing the provisions of the Act for harassing the officials of the respondent as well as causing wastage of time and resources of this Commission. As a responsible public servant, the appellant is expected to seek redressal of his grievances as per the established rules and procedures, rather than raising fingers against his superior officers or employer, as such actions tantamount to insubordination. 6. The evidence on record show that the appellant has been habitually submitting RTI applications on issues which have already been clarified by the respondent and that there are no denial of information as per section 8(1) of the Act. The RTI applications submitted by him are treated frivolous. It is unfortunate that the appellant has been misusing the provisions of the RTI Act for promotion of personal interest at the costs of public resources. 7. The respondent's MD is therefore directed to instruct the appellant to refrain from misuse of the provisions of the RTI Act for promotion of personal interest. If necessary, an appropriate disciplinary action against the appellant should also be initiated under the relevant service rules so as to ensure that the misuse of the provisions of the Act by the appellant is minimized. 8. A compliance report should be submitted within three months from the date of issue of this decision. 9. With these observations, the appeal is disposed of. Sd/- (Prof. M.M. Ansari) Central Information Commissionerii Authenticated true copy: (M.C. Sharma) Deputy Registrar Name & address of Parties: 1. Shri. Rama Krishna, MIG - 41/MSB, Gopishettykoppa, Gopala, Shimoga - 2. Shri. M. Balakrishna Shetty, CPIO, SAIL, Visvesvaraya Iron & Steel Plant, Bhadravati - 577 301. 3. Shri. P. Sahay, Appellate Authority, SAIL, Visvesvaraya Iron & Steel Plant, Bhadravati - 577 301. 4. The Managing Director, SAIL, Visvesvaraya Iron & Steel Plant, Bhadravati - 577 301.

Shri. Rama Krishna vs Steel Authority Of India Ltd. ... on 9 June, 2010

Central Information Commission

IN THE HIGH COURT OF KERALA AT ERNAKULAM Bail Appl..No. 5392 of 2010() 1. AMEER,AGED 20 YEARS, ... Petitioner 2. SAKKIR,AGED 21 YEARS,S/O.USMAN, Vs 1. STATE OF KERALA REP.BY S.I.OF POLIC4, ... Respondent For Petitioner :SRI.K.P.MADHU For Respondent :PUBLIC PROSECUTOR The Hon'ble MR. Justice V.RAMKUMAR Dated :13/09/2010 O R D E R V. RAMKUMAR, J. * * * * * * * * * * * * * * * B.A. No.5392 of 2010 * * * * * * * * * * * * * * * * * * * Dated: 13th day of September, 2010 ORDER Petitioners, who are accused Nos.2 and 3 in Crime No.251/2010 of Vadakkekad Police Station for offences punishable under Sections 323, 324 and 308 read with 34 I.P.C., seek anticipatory bail. 2. The learned Public Prosecutor opposed the application. 3. Anticipatory bail cannot be granted in a case of this nature. But at the same time, I am inclined to permit the petitioners to surrender before the Investigating Officer for the purpose of interrogation and then to have their application for bail considered by the Magistrate having jurisdiction. Accordingly, the petitioners shall surrender before the investigating officer on 23.9.2010 or 24.9.2010 for the purpose of interrogation and recovery of incriminating material, if any. The petitioners shall thereafter be produced before the Magistrate concerned and file an application for regular bail. On being convinced that the petitioners have been interrogated by the police, the Magistrate shall preferably on the same date on which the application is filed, release the petitioners on bail on each of the petitioners executing a bond for Rs.15,000/- (Rupees fifteen thousand only) with two solvent sureties each for the like amount to the satisfaction of the Magistrate and subject to the following conditions:- B.A. No.5392 of 2010 2 1. The petitioners shall report before the Investigating Officer between 9 a.m. and 11 a.m. on all Wednesdays. 2. The petitioners shall make themselves available for interrogation including custodial interrogation as and when required by the Investigating Officer. 3. Petitioners shall not influence or intimidate the prosecution witnesses nor shall they attempt to tamper with the evidence for the prosecution. 4. Petitioners shall not commit any offence while on bail. 5. If the petitioners commit breach of any of the above conditions, the bail granted to them shall be liable to be cancelled. This petition is disposed of as above. V.RAMKUMAR, JUDGE dmb 

Ameer vs State Of Kerala Rep.By S.I.Of ... on 13 September, 2010

Kerala High Court

ORDER Abdul Hadi, J. 1. This Civil Revision Petition is against the order in I.A.No. 2763 of 1982 refusing to excuse the delay of 9 months and 20 days in filing the interlocutory application under Section 9 of the City Tenants Protection Act for the purchase of the suit land. The ground alleged for the said delay is illness of the petitioner and the medical certificate produced says that the petitioner was suffering from "Hemiplegia Rtsid" and was under the doctor's treatment from 3.2.80 to 15.1.81. The suit was filed in 1977 itself against the petitioner-tenant and the abovesaid petition under section 9 of the said Act is said to have been filed on 23.1.81. (The order of the Court below says that it was filed in the year 1982. The petition is no doubt 23.1.1981). The Court below has dismissed the abovesaid petition for excusing the delay on the ground that application under Section 9 (1) (a) (i) of the Tamil Nadu City Tenants Protection Act, by the tenant for the purchase of the suit site must be filed within one month from the date of service of summons in the suit, but that it has not been filed so, that the medical certificate only showed the illness of the petitioner from 3.2.80 to 15.1.81 and that the delay prior to 3.2.80 right from the date of service of summons in the suit was not explained all. 2. But, the contention of the learned Counsel for the petitioner is that under the very same Section, viz., Section 9 (1) (a) (i) of the Act, an alternate time limit apart from one month from the date of service of summons has also been prescribed, viz., one month from the date of publication of the Tamil Nadu City Tenants Protection Amendment Act, 1979 (Act 2 of 1980) viz., 3.3.80 and that hence the petitioner need not explain the alleged delay prior to the expiry of the said alternate period prescribed under the very same Section. This contention is no doubt correct and the Court below has no doubt erred in not taking into account the alternative period prescribed by the very same Section. He also relied on the decision reported in Appa Rao Bahadur v. Senthilnathan (1988)I M.L.J. 252. However, I do not see any merit in the present revision for the following other reasons: The affidavit in support of the application for excusing the delay does not at all give out the nature of the alleged illness. The relevant allegation in the affidavit, in support of the application is as follows: I respectfully state that I was not aware of the Amending Act 2 of 1980 and its publication on 3.3.80. I was also not in the city for some months and I was ill and laid up in my village. When I came to Madras and contacted my Advocate, he informed me about the publication of the said Act.... Here too, it is not stated first of all when actually he came to Madras and when actually he was informed about the abovesaid publication. Further, it is also not stated for how long actually he was not in the city and what was his nature of illness and how long the said illness lasted. Further the medical certificate also only simply says that he was suffering from "Hemiplegia Rtsid". Whenever an illness is alleged, mere certificate of a medical man is not admissible unless it is proved by the evidence of person giving it or at least his affidavit: (Vide Sarada v, Devaki A.I.R.1935, Mad. 659 (D.B.); T.N. Govindarajulu v. Laxmi ) No doubt a departure is made to the above Ruling in the Explanation to Order 26, Rule 1, C.P.C. But that explanation will apply only for the purpose of the said Rule, which provides for examination of witnesses on commission when the witness is unable to attend Court due to sickness. That cannot have a general application. In the present case, there is no explanation anywhere as to what is this "Hemiplegia Rtsid". No oral evidence or other documentary evidence is there to show the nature of illness. No doubt, it is stated that the said medical certificate was marked by consent. The consent given by a party for marking a document does not dispense with either the proof of the contents of the document or the truth or otherwise of the contents. Vide Karuppanna Thevar v. Rajagopala Thevar and Palaniappa v. Bombay Life Assurance Co. A.I.R. 1948 Mad. 298 (D.B.) In Karuppanna Thevar v. Rajagopala Thevar referred to above, this Court observed as follows: This Court held in Palaniappa v. Bombay Life Assurance Co. A.I.R. 1948 Mad. 298 (D.B.) that permitting a document to be marked by consent only means that the party consenting is willing to waive his rights to have the document in question proved, that is the plaintiff was prepared to admit that the documents were that they purported to be namely a certificate given by the doctor and sent to the defendant and a reply given by the doctor to the questionnaire sent by the company. But agreeing to the document being marked by consent did not mean that the plaintiff accepted the correctness of every statement made by the doctor in those two documents. The correctness of the allegations contained in the certificate given by the doctor and in his reply would have to be proved only in the recognised ways as contained in the Evidence Act. Further, the medical certificate only says that the petitioner was under the doctor's treatment upto 15.1.81. There is no explanation for the subsequent period from 15.1.81 to 23.1.81, the date alleged as the date of filing the above said application for excusing the delay. The delay is also very much inordinate. 3. In view, of the above factors, I see no reason to interfere, with the order of the Court below in the exercise of the discretionary revisional jurisdiction under Section 115, C.P.C. Hence, I dismiss this Civil Revision Petition, No costs.

Author: A Hadi

R. Soundarapandian vs Santhanadevan on 22 January, 1990

Madras High Court

IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Civil Writ Petition No.15565 of 1989 Date of Decision: October 24, 2009 Ram Piara Sandhu .....PETITIONER(S) VERSUS State of Punjab & Others .....RESPONDENT(S) . . . CORAM: HON'BLE MR. JUSTICE AJAI LAMBA PRESENT: - None for the petitioner. (AJAI LAMBA) October 24, 2009 JUDGE avin Ms. Charu Tuli, Senior Deputy Advocate General, Punjab, for respondent Nos.1 and 2. None for respondent Nos.3 to 13. . . . AJAI LAMBA, J (Oral) The matter was admitted for final adjudication at a time when even written statement had not been filed. The claim made in the petition is for quashing orders of promotion of respondent Nos.3 to 13 (Annexure P-4 to P-10) and for expunging adverse entries in the Annual Confidential Report of the petitioner, Annexure P-11, for the year 1987-88. The petition further prays for issuance of a writ in the nature of mandamus directing respondent Nos.1 and 2 to CWP No.15565 of 1989 [2] promote the petitioner on the post of Deputy Director Industries at Roster Point 22 in accordance with Instructions dated 4.5.1974 w.e.f. 17.4.1985. Learned counsel for the respondent- State contends that reply was filed subsequent to the admission of the petition. Perusal of the contents of written statement indicates that the matter has been rendered infructuous. In response to Para 6 to 23, the following is the stand of the respondents:- The petition is disposed of as infructuous on the statement of learned counsel for the respondent-State.1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest?

Ram Piara Sandhu vs State Of Punjab & Others on 24 October, 2009

Punjab-Haryana High Court

Court No. - 4 Case :- WRIT - C No. - 68424 of 2009 Petitioner :- Smt. Neena Kapoor Respondent :- Dinesh Bharadwaj & Ors. Petitioner Counsel :- Amit Saxena Respondent Counsel :- Nipun Singh Hon'ble Krishna Murari, J. Heard learned counsel for the petitioner and Sri Nipun Singh, who has put in appearance on behalf of respondent no. 1. It is contended that without deciding the objection filed by them under Section 47 of the Code of Civil Procedure by means of impugned order writ of possession has been issued. Sri Nipun Singh appearing for the respondent states that he does not propose to file counter affidavit and the petition may be disposed of with direction to the executing court to decide the objection. In view of the facts and circumstances and the concession made on behalf of the respondent, this petition stands finally disposed of with direction to the Civil Judge (Senior Division), Ghaziabad to decide the objection filed by the petitioner under Section 47 C. P. C. in Execution Case No. 19 of 2008 in accordance with law after notice and opportunity of hearing to all concern with a period of two months from the date of presentation of a certified copy of this order before him. Till the disposal of the objection, as directed aforesaid, the effect and operation of the order dated 15.10.2009 passed by Civil Judge (Senior Division), Ghaziabad in Execution Case No. 19 of 2008, Dinesh Bharadwaj Vs. Jeevan Beema Rashtriya Sahkari Awas Samiti Limited shall be kept in abeyance. Order Date :- 29.1.2010 Dcs

Smt. Neena Kapoor vs Dinesh Bharadwaj & Ors. on 29 January, 2010

Allahabad High Court

-1- IN THE HIGH COURT OF KARNATAKA AT BAHGALORE DATED THIS THE 277*' DAY OF MAY R PRESENT THE HOWELE MR. 9.13. nINAxA1?.A1%;--t:r;I§5:F_;.itjé:*r1§:Ei'.~ AND ' ' THE rmxvrnna MR.Jt:s9r{'¢:e%'v.é;ag.B;;A:I£'hV"'% wan PETITION No.4o44522oes;§M~MMfs1 mB._...'.Ef.§.';_\£v'.E__l3'«.,£§.; SHRESADASHIVA =: 3/0 HANMANTH ,.,riT'r1:';j ~ « AGE: :32 YEARS occ; AGRIi3{§Lff'UREig R/0 LONi(3".._:<.}¢ ' ' TQ: {NDI ' _ $3133"; BiJAPUR.=--.._' - . \ ., ._ .PE'§'ITE(}NER 1{§3?"3R1;"'m§zA'RESg_ S Rcigiki; AEJVOCATE) Mg) "; - ...__.__.-...u.... A i. --m:«: 15'iRE'¢'foé 4_1*;..§:1:>*1', OFMNES Am GEOLOGY * "::112%.z.::,JA BHAVAN 'B}«'{i%E(}A1:.GRE. '" SENIOR GEGLOGIST 'MUNESHWAR NAGAR -«. D'EF""f'. 01:' MINES AND GEQLGGY '.MA:s:GAL VEZDE BUILDERS SINEHGI ROAD BIJAPUR. 3. THE QEPUTY COMMESSICINER BIJAPUR. ;.REspamIIs {BY SR1: BASAVARAJ KARREDDY, Gov*f;.VAfi§AV'<jcA*;*I;' ;) , " THIS WRIT PETITION IS F'ILI:..§=I;NDIa:'I2VAI2TII:1LE$3"22::;é Am)" ' 22? OF THE CONST§'FU'£'IC)N OF INI:"mx?RAYING Ti) QUEASH THE ITEM No.50, 51 AND 52 IN__RE'.SPE.C3F_"{)F"--.BLOCK~4.,A 'z.*ANI3 3 IN TEZNEER NO'I'I}?*'ICAT§ON I:-A"-man ;'1?;9'g..:g30{)8, ISSUES BY THE RESPONBEN'? No.2 FI)GNCvs .'I'§~'{E i."I3A"i*§: AUCTION cm 6.10.2068 IN NQ.GHA-BHURE; HI-+.BH--{i-EZ_§K) ' BJPfSA- MA] HA,' PRA,' 2008-2(}{L}9 DAT;¥:;'fi- 1;'? /9[;2_Q0s. VIEQEE ANNEXURE~E. THIS WEI? I:-.Ie";*'IVjI'I'I?:f»';~:--. J'c:m}III4':c3rLIP FOR PRELIMINARY HEARING f.;"}'ii\I"Iv..'1ff§-?§S "I":a:\Y;--._'*--z'II:§ "'x3oUm* SELIVERED THE F'OLLOWINCf:-- _ _ * » . j A ' '--:..A'e_.§_4I"_i;'.;3_.;_'t:f.V":'£'IT:fl"'.EH'l' _ (fjc§\Ie1'e& P:£)IDmakaran, Cd.) ' _ §d€i¥,iti't>.§Ier sééks to quash the notification dated 17 §:§j;Ip§5sIi::1g;.:~'rt:~a11ctioI:iI':g of sand quarry located at { "'B3ock I§It:t_S.43_v'f3, and 3 of Dhuikhed v:IIage, Incii'1'a1ui<; and " ;IfTLDiI§t:>itk:t on 6. 30.2008 on the graund that he was the «_ "'h4i:g1I<:I§§t'»E".~:£€ider for Iiflzing the sand in respect of the in;Ipug1ed in the auction heid on 6.10.2008. 1?)/"_,..,,.w.»i;3,,.gA_1\\ I = J r ; 2. When the matter came up for ac¥1nis$i'Qf1*._Vor1 1.10.2088 this Court ganted a Conditienai stay _ "Issac: emergent notice to resp<311c'£e:»:n f$.. E _ In addiiian ta that, Goverfunant Advocate .,§:1{?§Z(i*;3ti"S respondents N0.1%:ou3. K .' Learned c0un$r%§"f0r is fiiiected 11:3 serve a cepy of $ "V:"}3'e1;ir;_ii:;:fi:».V"'fg;}V<}1'3g Wfih amiexures Q13. f;i";._:-; S£a}{¢..'€1i1a53Li:;pei>.%a;?:§t;:}f a_11:fi exéiiution of the": ;§f7';"}:'2"§GO8 fixing {he ciaze sf a%;a.C€.i:3i.i $0 far as it reiatas E0 fiiock ?*$sf::$.4, '?- 'lfriuikhed for a perisci of tw'Q-week§'s_f1bjéCt in ébnditiafi that the petitionar d.§:;30sTif"'*------a'" sum of Rs.1'7,28,746/~ ' ;{I?S,S:s;fsz<?nt.:éi'@n_ iakhs t'W€¥1t§9' eight thousand and anci forty six) in regpsct 0f Biock .E'§af4 Es.:2?3',A?G,499/~ (Rs.'1"we:1t ysix lakhs sevamy thou'::§é_i1;d ané fan: hundreti ans} ninetfa {zine} in n nrés-pecfs sf Bicsck 549.7 and }'€s.2(},§?,499/~ '7.{§si.*I'"'we1";ty Eakhs rzéxzety sewn thoasanci and €013' = ..-Tmxzidreéi anti nimety fiififi in respaafr, of Bizmk $30.8 ii": 3.3 tetailixzg §S.€3"3'1~,§*6,?44§--~ (Rs. $i§{€_'y'-f§i§Uf ,.»««'=' iaiqhs z:;.2in€t:j; six {h<>usamd anti sewn Eluzidredfi fQE"":1f»E faur} ifififilii} a perieii sf £631 {£3313 A' if the {:0:'";r:%.%.1:i;:a:'1a§ iilterirzl artist is not wig": :x::::~:i;'1 Ear; daygs from tod.fay;" the A by this Court stands vacatad §2%iti2{)T;;§; if OI'd€3I'$. " 3. Hawever, it is ,'v'.iearI}e&VV"G€2§zemment Advocate that the said conc§ifibi;aE',"_S£§iy gitampfied with. 4. That ggetitioner claims that he is the higf1'est*-- Ttai:;1c1Ve:§;% the: bid is ccnfiimed in his favcur, he hafVS.;1c€;V the ba}ar1<:e bid amount apart frag} the time of participating in the ai;1z;tio}zi;ia:1civ_as5 '$11631, We éo mat see any filegaiity in noiifyirag :fe~aucti0'r1§:1g'c3§Lj£12§é sand quarry by the impugned notificaiion _&§}a':eh<:1 17 On the other hand, the pefitianer by filing :aE§o§Ve..wI'i£ petiticm, for no justified masons has created a ~Vs§aieI;i.ate in the auctian procaedizlgs and also has resuiteé in to the revenue of the: State. Therefsre, the above writ ,, K, flu,'

Author: P.D.Dinakaran(Cj) & V.G.Sabhahit

Sadashiva vs Director & Others on 27 May, 2009

Karnataka High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 17711 of 2008(H) 1. SAMSOM PHILIP, S/O.THOMSON PHILIP, ... Petitioner 2. RACHEL JAMES, D/O.JAMES, AGED 29 Vs 1. STATE OF KERALA, REPRESENTED BY ... Respondent 2. THE MARRIAGE REGISTRAR/SUB REGISTRAR, For Petitioner :SRI.V.V.NANDAGOPAL NAMBIAR For Respondent : No Appearance The Hon'ble MR. Justice S.SIRI JAGAN Dated :13/06/2008 O R D E R S.SIRI JAGAN, J = = = = = = = = = = = = = = = = W.P.(C).No. 17711 OF 2008 = = = = = = = = = = = = = Dated this the 13th day of June, 2008. J U D G M E N T Government Pleader takes notice. The petitioners' complaint in this writ petition is that although the petitioners have submitted Ext.P3 notice of marriage under the Cochin Christian Civil Marriage Act, the same is not being accepted and processed in accordance with the Act. This court has already held that persons residing within the limits of erstwhile Cochin State are entitled to benefit of the Cochin Christian Civil Marriage Act even now. In the above circumstances, the 2nd respondent has a duty to accept and process the original of Ext.P3 notice in accordance with the said Act. 2. Learned Government Pleader submits that the person designated as the marriage officer has been transferred. The Act provides that the Sub Divisional Magistrate can act as the marriage officer in the absence of the marriage officer.  W.P.(C).No. 17711 OF 2008 2 In the above circumstances, I dispose of this writ petition with a direction to the 2nd respondent or the Sub Divisional Magistrate who is in charge of the marriage officer to accept Ext.P3 notice of marriage and process the same in accordance with the Cochin Christian Civil Marriage Act, as expeditiously as possible at any rate within 7 days from the date of receipt of a copy of this judgment. S.SIRI JAGAN, JUDGE bkn/-

Samsom Philip vs State Of Kerala on 13 June, 2008

Kerala High Court

SCA/6513/2011 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 6513 of 2011 ======================================================= CHETANKUMAR BIPINLAL GOLWALA & 1 - Petitioner(s) Versus STATE OF GUJARAT THROUGH CHIEF TOWN PLANNER & 3 - Respondent(s) ======================================================= Appearance : MR HR PRAJAPATI for Petitioner(s) : 1 - 2. GOVERNMENT PLEADER for Respondent(s) : 1, None for Respondent(s) : 2 - 4. ======================================================= CORAM : HONOURABLE MR.JUSTICE RAJESH H.SHUKLA Date : 13/05/2011 ORAL ORDER Notice to the respondents returnable on 30 th June, 2011. Status quo as on today to continue till then. Direct service is permitted. (RAJESH H.SHUKLA, J.) /patil

Chetankumar vs Through on 13 May, 2011

Gujarat High Court

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 11/02/2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU S.A.(MD)NO.597 of 2009 AND S.A.(MD)NO1179 OF 2009 W.P.(MD)NoS.12434 OF 2009, 7013 and 13120 of 2010 and M.P.(MD)Nos.4,1 and 2 OF 2009, 1,1,2 and 1 of 2010 S.A.(MD)No.597 of 2009 S.K.Mohammed Kasim (deceased) 1.Smt.Ayesha Amma 2.Zakir Hussain 3.Syed Kadar Saleem 4.Sabir Salik .. Appellants Vs 1.Kadar Ibrahim Rowther & Sons, rep by its Partner, Sherfuddin, 22,Palakkarai, Tiruchirappalli. 2.M.A.M.Bus Service, rep by its Partner Sherfuddin, 39,Sathyamoorthy Road, Pudukkottai. 3.Shefuddin 4.S.K.Roadways 5.Hafeez Motor Transports, having office at 39,Sathyamoorthy Road, Pudukkottai. 6.Al Hafeez Motor Transport, having office at 39,Sathyamoorthy Road, Pudukkottai. .. Respondents2.Sharfudeen .. Appellants Vs 1.Aisma Ammal 2.Zakir Hussain 3.Syed Kadar Saleem 4.Sabir Salik 5.Kader Ibrahim Rowther & Sons, a registered firm represented by its Partner Sherfudeen, S/o.Khader Ibrahim, 22,Palakkarai, Tiruchirappalli-620 008. 6.S.K.Roadways a firm of Partnership represented by its Partner Sherfudeen, 91,Heber Road, Trichy-1 7.Hafeez Motor Transport, 39,Sathyamurthy Road, Pudukkottai. 8.Al Hafeez Motor Transport, 39,Sathyamurthy Road, Pudukkottai. (RR 6 to 8 given up as no claim made against them in this appeal) 3.The Regional Transport Authority, Tiruchirappalli. .. Respondents in W.P.(MD)No.12434 of 2009 1.Mrs.Ayesha Amma 2.Secretary, Regional Transport Authority, Pudukkottai. 3.The Regional Transport Authority, Pudukkottai. .. Respondents in W.P.(MD)No.7013 of 2009 W.P.(MD)No.13120 of 2010 Mohideen Andavar Motor Services, rep by its Managing Partner S.K.Sherfudeen 9,Sathiamurthy Road, Pudukkottai. .. Petitioner Vs 1.S.K.M.Sabir Salik, 2.The Registering Authority and RTO Tiruchirappalli District, Tiruchirappalli. .. Respondents S.A.(MD)No.1179 of 2009 1.M.A.M.Service a registered firm of Partnership, represented by its Partner, Sharfudeen, 39,Sathyamurthy Road, Pudukkottai. (R5 exparte in the first appellate court) .. Respondents W.P.(MD)Nos.12434 of 2009 and 7013 of 2009 S.K.Sharfudeen Managing Partner Mohideen Andavar Motor Service, 9,Sathyamoorthy Road, Pudukkottai. .. Petitioner in both writ petitions vs 1.Mrs.Ayesha Amma 2.Secretary, Regional Transport Authority, Tiruchirappalli.S.A.(MD)No.597 of 2009 has been preferred under Section 100 CPC against the judgment and decree dated 15.04.2009 in A.S.No.237 of 2005 on the file of the II Additional Subordinate Judge, Tiruchirappalli confirming the judgment and decree dated 13.6.2005 in O.S.No.2637 of 2004 on the file of the Principal District Munsif, Tiruchirappalli. S.A.(MD)No.1179 of 2009 has been preferred under Section 100 CPC against the judgment and decree dated 15.04.2009 in A.S.No.30 of 2006 on the file of the II Additional Subordinate Judge, Tiruchirappalli confirming the judgment and decree dated 13.6.2005 in O.S.No.2637 of 2004 on the file of the Principal District Munsif, Tiruchirappalli. W.P.(MD)No.12434 of 2009 has been preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorari to call for the records of the second respondent made in R.No.44909/A2, dated 23.11.2009 to consider the application of the first respondent, dated 3.6.2009 which pertains to the transfer of permit in respect of the vehicle bearing Registration No.TN55 R0760 plying on the route Srirangam to Keeranur and to quash the same. W.P.(MD)No.7013 of 2010 has been preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorari to call for the records of the second respondent made in R.No.47808/A2/2009, dated 13.5.2010 pertaining to the transfer of permit in respect of the vehicle bearing registration No.TN 55 S4800(3800) plying on the route Trichy to Pudukkottai and to quash the same. W.P.(MD)No.13120 of 2010 has been preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records of the second respondent made in R.No.87306/A2/2010, dated 19.10.2010 in returning the application for grant of renewal of fitness certificate in respect of the state carriage bearing Registration No.TN 55 R0760 plying on the route Srirangam to Keeranur, quash the same and to consequently to direct the second respondent to receive the application filed by the petitioner for renewal of fitness certificate dated 19.10.2010 in respect of stage carriage bearing Regn. No.TN 55 R 0760 plying on the route Srirangam to Keeranur and direct the second respondent to grant renewal of fitness for the above said vehicle. !For Appellants ... Mr.AR.L.Sundaresan, SC for Ms.AL.Gandhimathi in S.A.(MD)No.597 of 2009 Ms.Krishnaveni in SA(MD)No.1179/2009 For Petitioners ... Mr.M.Palani in all writ petitions For Respondents ... Ms.N.Krishnaveni in SA(MD)No.597 of 2009 Mr.AR.L.Sundaresan, SC for Ms.AL.Gandhimathi for R1 in all writ petitions Mr.S.C.Herold Singh, GA for RR2 and 3 in W.P.(MD)No.12434 of 2009, 7013/2010 and for R-2 in W.P.(MD)No.13120 of 2010 - - - - :COMMON ORDER W.P.(MD)No.12434 of 2009 was filed by S.K.Sarfuddin, Managing Partner of Mohideen Andavar Motor Service, Pudukkottai, seeking to challenge an order passed by the Regional Transport Authority, Tiruchirappalli, dated 23.11.2009, by which an application was made by the first respondent Mrs.Ayisha Amma, dated 3.6.2009 pertaining to transfer of permit in respect of the vehicle bearing Registration No.TN55/R 0760 plying from Srirangam to Keeranur and seeks to set aside the same. 2.When that writ petition came up on 30.11.2009, this court held that considering Rule 208 of the Motor Vehicles Rules by which transfer of permit can be considered only on the joint application and in the present case, it was filed by the Widow (R-1) in her individual capacity and also that the permit belonging to a firm and since the petition filed was to come up for hearing, an interim stay was granted. Notice was ordered to the parties. On receiving notice, the first respondent filed M.P.(MD)No.2 of 2009, seeking to vacate the interim stay together with supporting counter affidavit, dated 7.12.2009. 3.Thereafter, the same petitioner filed W.P.(MD)No.7013 of 2010, seeking to challenge an order, dated 13.5.2010 passed by the first respondent Regional Transport Authority, Pudukkottai pertaining to transfer of permit in respect of a vehicle bearing Registration No.TN 55/S 4800 plying on the route from Trichy to Pudukkottai and for quashing the same. The said writ petition came up on 27.5.2010. Notice was taken by the first respondent. But, in view of the stay granted in the earlier writ petition, an interim stay was also granted in this writ petition initially for a limited period. Thereafter, it was extended from time to time. The contesting respondent Mrs.Ayisha Amma had filed a vacate stay petition in M.P.(MD)No.2 of 2010 together with supporting counter affidavit, dated 2.6.2010 and also a typed set of documents in support of her case. 4.Thereafter, W.P.(MD)No.13120 of 2010 came to be filed by the same S.K.Sarfuddin in the capacity of Managing Partner of Mohideen Andavar Motor Service. When that writ petition came up on 27.10.2010, this court ordered notice of motion and respondents were directed to be served privately. In that case, the respondent was one S.K.M.Sabir Salik. The petitioner sought to quash the order of the Regional Transport Authority, Tiruchirappalli, dated 19.10.2010 returning an application for grant of renewal of Fitness Certificate in respect of a stage carriage bearing registration No.TN55/R 0760 plying from Srirangam to Keeranur and after setting aside the same, seeks for a consequential direction to the Regional Transport Authority to renew his Fitness Certificate. 5.When these matters were grouped together, the counsel for both sides informed that there was a family dispute among the partners of the Bus Transport which had resulted in a suit being filed by one party against the other party. The suit had finally reached this court by way of two Second Appeals, i.e. S.A.(MD)Nos.597 and 1179 of 2009. If they were heard and disposed of, that will solve the issue pending in the writ petitions. Therefore, with the consent of both parties, those second appeals were also directed to be posted along with these writ petitions. Accordingly, they were also posted after obtaining orders from the Administrative Judge. 6.In S.A.(MD)No.597 of 2009, the appellant is Mrs.Ayisha Amma who is the wife of late Mohammed Kasim. She filed the appeal along with three sons of late Mohammed Kasim. The defendants are Kader Ibrahim Rowthar and Sons represented by its partner Sarfuddin and M.A.M.Bus Service represented by its partner Sarfuddin and also Sarfuddin, S/o.Kader Ibrahim. In that case, an original suit was filed in O.S.No.937 of 1993 by the late husband of Mrs.Ayisha Amma, seeking for the grant of decree dissolving defendants 1,2,4,5 and 6 and also to direct the third defendant Sarfuddin to render accounts in respect of the income and expenditure, profits, acquisitions, estates and liability of 2nd, 4th, 5th and 6th defendants and also to direct the 5th and 6th defendants to render accounts showing the origination of routes, income and expenditure, estate and liability and profit and loss account. 7.On notice from the Sub Court, Tiruchirappalli, a written statement was filed by the third defendant Sarfuddin. The same was adopted by the second and fourth defendants. The fifth defendant had filed an independent written statement. Thereafter, the suit was transferred to be tried by the Principal District Munsif, Tiruchirappalli and was renumbered as O.S.No.2637 of 2004. After the suit was taken up, the sixth defendant had filed a written statement. An additional written statement was filed by the third and fourth defendants, to which the plaintiff Mohammed Kasim filed a reply statement. 8.Before the trial court, on the side of the plaintiff, 34 documents were filed and marked as Exs.P.1 to P.34. The plaintiff examined himself as P.W.1. On the side of the defendants, 66 documents were filed and marked as Exs.D.1 to D.66 and three witnesses were examined as D.W.1 to D.W.3. D.W.1 was the third defendant Sarfuddin. The trial court framed nine issues, which reads as follows: 1)Whether the suit was filed against proper parties? 2)Whether an oral partition in the year 1976 between the third defendant and his sister was true? 3)Whether the plaintiff was running the first defendant firm in his individual capacity? 4)Whether the second defendant firm went to the third defendant on partition? 5)Whether in the fourth defendant firm, the plaintiff was added as a partner? 6)Whether the partnership firm is liable to be dissolved? 7)Whether the defendants 3,5 and 6 have submitted the statement of account to the plaintiff? 8)Whether the prayer of the petitioner can be granted by the court? 9)To what relief the plaintiff is entitled to? Further, the following additional issue came to be framed : 10)Whether the suit was barred by limitation? 9.The trial court on the basis of the evidence (both oral and documentary), in respect of issue Nos.2,3 and 4 found that the third defendant had failed to prove that the plaintiff, third defendant and their sister had any oral partition in 1976. The plaintiff did not conduct the first defendant's firm in his individual capacity. Only as a managing partner, he was conducting the firm of the first defendant. Likewise, the second defendant's firm was not given to the third defendant on partition. Till date by giving any paper advertisement or notice, the two partners have not resigned from the partnership and no intimation was given to the Registrar. As per the records, they continue to be partners. On the side of any third party if any demand is placed on the firm, the duty to solve that demand vests both on the plaintiff and the third defendant either on the basis of managing responsibility or on their personal capacity till such time they are alive. Therefore, it cannot be said that the firm is a private property of any person. 10.In respect of issue Nos.5 and 6, it cannot be said that defendants 5 and 6 are no way responsible to the plaintiff and they have no connection whatsoever with the plaintiff. There was no necessity for defendants 5 and 6 to submit their statement of income. But the third defendant is actually a partner of the second defendant. Therefore, being another partner of the said firm, the third defendant is bound to submit the accounts to the plaintiff. He is also responsible for giving account to loan obtained by him and also to pay back the loan for purchasing of bus for the fourth defendant from the joint family business. 11.In respect of issue No.1, the trial court found that the plaintiff had mis-jointed forth and sixth defendants and also others are made as parties who have no connection with the joint family firm. He had also not impleaded all necessary partners of those firm. Hence the suit suffered from non joinder of parties. 12.In respect of the additional issue, it found that the suit was not barred by limitation. So long as no legal steps were taken to bring the partnership to an end and to deny the right of an another partner expressly and remove the partner from the firm, it has to be presumed that the right of one of the partner cannot be time barred. It has to be presumed that the other partner continues to be running the firm as a managing partner and also an agent of the other partner. 13.In respect of issue Nos.8 and 9, the finding was that in respect of first and second defendants establishment, the plaintiff is entitled to get a relief as against the third defendant. Hence the suit was decreed and a preliminary decree was passed against the third defendant. But with reference to fourth and sixth defendants, no relief can be claimed and the suit was dismissed as against them. With reference to rendition of accounts, a separate action will have to be taken by the plaintiff. 14.As against the judgment and decree of the trial court, i.e. Principal District Munsif, an appeal was filed by the original plaintiff Mohammed Kasim in A.S.No.286 of 2005 and a cross appeal by the second defendant M.A.M.Service, a registered firm of partnership represented by its partner Sarfuddin and also by Sarfuddin (D-3) being A.S.No.33 of 2006 before the Principal District Court. These two appeals were entrusted for disposal by the II Additional Subordinate Judge, Tiruchirappalli and were accordingly renumbered as A.S.No.237 of 2005 and A.S.No.30 of 2006 respectively. 15.The lower appellate court tried both appeals together and passed a common judgment and decree on 15.4.2009. In A.S.No.30 of 2006, the appellants M.A.M.Service and Sarfuddin had filed I.A.No.733A of 2008 for filing an additional written statement. That was allowed by the court on 21.11.2008. In the additional written statement, it was stated that in the oral partition pleaded of the year 1976, certain properties were listed. In that oral partition, the second defendant firm was given to the third defendant exclusively. Therefore, the plaintiff was estopped from contending to the contrary. Hence the suit in its entirety must be rejected. The original plaintiff being the respondent in that appeal had filed a counter statement. He had stated that the contentions raised by defendants 2 and 3 are not maintainable. It is an afterthought. The earlier suit filed between the parties in OS.No.1185 of 1964 was transferred to the Fast Track Court and renumbered as O.S.No.4 of 2004. In that written statement, the second defendant firm was described as joint family firm and sisters were informed that they are not entitled for any share in the joint management. The defendant had filed a written statement in 1989. In the present suit, he had contradicted the oral partition in the first time in the written statement. Therefore, having took up a contention in the year 1989 and thereafter 13 years after, he has no right to raise any objection. The motor transport firm was started in the year 1972 and not in the year 1976. Likewise, the plaintiff/appellant in A.S.No.237 of 2005 filed I.A.No.736(A) of 2008 and prayed for marking of additional documents. That application was allowed and documents Nos.35 and 36 were marked as Exs.A.35 and A.36. In the light of the additional pleadings and reply, an additional issue was framed, i.e. Whether the plaintiff was estopped in filing the suit in O.S.No.2637 of 2004? 16.On the basis of these pleadings and additional pleadings, the lower appellate court found that the findings rendered by the trial court was proper. Hence both appeals were dismissed and the judgment and decree passed by the trial court was affirmed. With reference to the additional issue framed regarding oral partition that took place in the year 1976, the lower appellate court held that the said pleading was made by the defendant only in the written statement. Therefore, there was no impediment for the suit being conducted by the plaintiff. Further though the defendant had pleaded that partition took place in the year 1976, the trial court rejected the same as not being proved by the third defendant. The lower appellate court agreed with the said finding held that the additional issue framed on behalf of the third defendant has to be answered against the third defendant and there is no estoppal against the plaintiff. 17.Aggrieved by the judgment and decree, dated 15.4.2009 passed by the II Additional Sub Judge, Tiruchirappalli, both sides have filed Second Appeals. S.A.(MD)No.597 of 2009 was filed by Smt.Ayeshamma and others as by then, the original plaintiff Mohammed Kasim died. Being the wife and sons of late Mohammed Kasim, they have come on record to pursue the second appeal. 18.When S.A.(MD)No.597 of 2009 came up for admission on 20.08.2009, this court framed the following two questions of law : 1.Whether the Courts below erred in granting a decree only in favour of the 3rd defendant when it is clearly proved that the defendants 4 to 6 are also the firms which were formed from and out of the income earned from the 1st defendant firm and 2nd defendant firm? 2.Whether the Courts below erred in dismissing the suit in respect of other defendants when the oral partition pleaded by the 3rd defendant has been rejected? 19.Likewise, the defendants 2 and 3 filed S.A.(MD)No.1179 of 2009. When that second appeal came up for admission, this court framed the following three questions of law on 18.12.2009, which reads as follows: "(a)Is the learned Subordinate Judge right in decreeing the suit for dissolution of first and second defendants firms and for accounts when it has been clearly admitted by the plaintiff that both the first and second defendants firms had been in exclusive and individual management of the plaintiff and the third defendant respectively for a very long time? (b)Is the learned Subordinate Judge correct in rejecting the plea of oral partition when the plaintiff himself has admitted the exclusive management of the first defendant and second defendants firm by plaintiff and the third defendant respectively? (c)When the third defendant has specifically pleaded for accounts of first defendant firm in case of passing a decree for the dissolution of the first defendant firm, is the learned Subordinate Judge correct in not granting the relief of accounting by the plaintiff in respect of the first defendant firm when the learned Subordinate Judge has directed for accounting by the third defendant with respect to the second defendant firm?" 20.It was thereafter both parties have entered appearance. By the order of the Administrative Judge on 20.1.2009, all matters were grouped together and directed to be posted before this court. 21.In S.A.(MD)No.597 of 2009, the contention of the appellants was that the court below ought to have found that the plaintiff and the third defendant were doing business in partnership and that defendants 1 and 2 are partnership firm in which originally the plaintiff and the third defendant are partners. Once it is found that there was no partition between the plaintiff and the third defendant as pleaded by the third defendant in the year 1976, then the suit ought to have been decreed as prayed for. It must have been noted that defendants 4 to 6 were formed only from the income generated from and out of the second defendant firm. It was a partnership firm being run by the plaintiff and the third defendant. Defendants 4 to 6 are also partnership firm so that the plaintiff is entitled to share in those firms. It was further argued that all permits which were owned by the fifth defendant are initially owned by the plaintiff. The theory of oral partition if not accepted, then it should have been held that the transfer of route permit and buses in favour of the fifth respondent by the plaintiff was only by way of efficient management. The amounts were paid out of the second defendant firm for running the firm was also proved. The defendants themselves had stated before the Regional Transport Officer that the transfer was only for effective supervision. There were joint applications filed by the plaintiff and the fifth defendant. Therefore, an absolute transfer in favour of the fifth defendant of all permits and buses had really divested the plaintiff of its right. 22.The contention of the defendant in accepting the transfer of amount from the first defendant firm for acquiring route permit and buses from one Veerappan is a clear case of admission of fact. They were not considered by the court below. It is also stated that the first defendant firm in acquiring routes and buses and for their maintenance till formation of fourth defendant was not specifically denied by the defendants. The investment for the fourth defendant firm has been made by the third defendant by getting money from the first defendant. It was found by the court below that it was only borrowed. To record such a finding, there was no pleading. The account books produced in respect of the fourth defendant will show that none of the partners had invested any money for acquisition of route permits and buses. The partners taken by the third defendant were only working partners. The acquisition of route permit in favour of the fourth defendant went out only from the first defendant firm and that the third defendant had changed the constitution of partnership without notice to the original plaintiff. Since partners of defendants 4 to 6 were only close relatives of the third defendant and that it was established only for the purpose of getting grant from the Regional Transport Officer on an understanding between the plaintiff and the third defendant. The defendants 4 to 6 though are having different names, they are not an independent firm and they were controlled by the second defendant. Even though these facts were stated by D.W.3, the sixth defendant was bifurcated from the fifth defendant. 23.After the suit for partition was filed by one of the sister of the plaintiff in the year 1984, the third defendant himself in his written statement in that suit in the year 1989 had put forth a case of partnership firm between the plaintiff and himself in respect of defendants 1 and 2. The third defendant's wife though was a partner of other firm and had filed a written statement did not enter into box, but had examined her son on her behalf who was a minor and hardly 4 to 5 years old at the time when the defendant firm was established. The properties including bus route standing in the name of defendants 4 to 6 were all properties and asset of defendants 1 and 2 which were later transferred by third defendant was not noted by the court below. It was also not noted that the original transport business was done by he father. After his father, plaintiff and the third defendant were carrying on the business in partnership. It was specifically the case of the third defendant that on oral partition, the first defendant was given to the plaintiff and that the second defendant was given to the third defendant. Since this was not accepted by the court below, then they should have decreed the suit as prayed for. If the plea of original joint family business was accepted, then the plea of oral partition was to be rejected and that the suit ought to have been decreed as originally prayed for. The documents and account books filed by the parties clearly show that defendants 1 and 2, defendants 4 to 6 were all partnership firm belonging to the plaintiff and the third defendant. 24.Per contra, it was argued by the respondents who are defendants, that the court below had failed to note that there was oral partition in the year 1976. This was pleaded specifically. Due to oral partition, the first defendant was allotted to the plaintiff and the second defendant was allotted to the third defendant. Since there was no denial by any reply which fact should have been found in favour of defendants. The family partition was done at the intervention of the respective elders of the family as suggested by the plaintiff himself. This fact was not denied. The plaintiff himself in his plaint had stated that he was looking after first defendant firm individually and exclusively. Since the totality of evidence show that the first defendant was taken care of by the plaintiff and the second defendant was taken care of by the third defendant itself will prove that it was pursuant to the oral partition. If there was no oral partition, then each one of them had participated in the other ones business. There was no intervention by either of them in the others business and that they are distinct and separate entities. The court below was erroneous in stating that the third defendant did not plead in the earlier suit in O.S.No.1185 of 1984 about the oral partition. Therefore, his statement was unbelievable and does not by itself will prove that there was oral partition. The court below did not appreciate the evidentiary value of Exs.B.17, B.4, B.5, B.18 to B.23 to prove that there was an oral partition. In Ex.B.8, the plaintiff himself had signed the transfer of bus route in favour of third defendant's wife. If there was no oral partition, the question of transfer will not arise. 25.It is in this context, one has to see whether the judgment and decree passed by the court below is liable to be interfered with at the instance of one or the other side? 26.Mr.AR.L.Sundaresan, the learned Senior Counsel leading for Ms.AL.Gandhimathi, appearing for the appellant in S.A.(MD)No.597 of 2009 contended that if there are only two partners constituting a partnership firm and on the death of one of them, the firm is deemed to be dissolved. In case of death of one of the partners of the firm, an obligation is upon the legal representative of the deceased partner to continue the partnership if any. If the legal representatives of the deceased partner were not at all interested in continuing the firm or constituting a fresh firm, they cannot be asked to continue the partnership as there is no legal obligation upon them to do so. The partnership is not a matter of heritable status, but purely one of contract. For this purpose, he relied upon a judgment of the Supreme Court in Mohammad Laiquiddin and another Vs. Kamala Devi Misra (dead) by LRs and others reported in 2010 (2) SCC 407. 27.In this context, the trial court had found that defendants 1 and 2 firm were continued to be partnership firm and only the management of each firm were separately attended to. Even if one partner is managing the firm of the other partner who does not take any role in the management by itself will not become a separate property. It has to be taken only as a firm property. The partner who is managing the firm is the manager even in respect of the other partner, who is not having any role. Since the oral partition that took place in the year 1976 was not proved by the third defendant, it has to be presumed that the plaintiff was not conducting the first defendant on exclusive basis and even the second defendant was not given to the third defendant. 28.The lower appellate court in paragraphs 25 and 26 had clearly given a finding that there was no oral partition and the evidence of D.W.2 to that effect could not be proved as the third defendant never made any statement in the written statement. For the first time only during the trial, this theory was brought in. Therefore, there was no evidence to show that there was separate allotment of business of the first defendant to the plaintiff and the second defendant to the third defendant. Since both the courts on the basis of appreciation of evidence came to this conclusion, this court is not inclined to interfere with the said findings. Therefore, the two questions of law framed in S.A.(MD)No.597 of 2009 do not merit any attention. 29.Similarly, in the second appeal in S.A.(MD)No.1179 of 2009, Mrs.N.Krishnaveni, learned counsel appearing for the appellants contended that the oral partition pleaded in the year 1976 should have been accepted by the court below. In such matter, technical consideration should give way to peace and harmony in the enforcement of family arrangement or settlement. For this purpose, reliance was placed upon a judgment of the Supreme Court in Hari Shankar Singhania and others Vs. Gaur Hari Singhania and others reported in 2006 (4) SCC 658. The learned counsel also referred to the very same judgment in Mohammad Laiquiddin's case (cited supra) for the purpose of contending that dissolution of partnership firm on account of death of one of the partner is subject to contract entered into between the parties. Then, the learned counsel contended that decreeing the suit for dissolving the firm of defendants 1 and 2 and for rendition of account was incorrect, since it was established that defendants 1 and 2 were in exclusive possession. She had also contended that since the third defendant had pleaded for accounts of the first defendant's firm in case of passing decree for dissolution of the first defendant firm, the lower appellate court's direction to rendition of accounts by the third defendant in respect of second defendant's firm is erroneous. 30.With reference to oral partition, already the case of the defendants has been rejected by this court. It is found from paragraph 46 of the judgment of the lower appellate court that the plaintiff had filed a suit that both defendants 1 and 2 were under the management of the third defendant. Only on that basis, the defendants 1,2 and 4 to 6 should render accounts. But in his evidence, he had stated that the first defendant firm was under his control. Therefore, he could not have claimed any relief against himself. But the third defendant had at no point of time claimed any relief in respect of the first defendant's account. The findings of the trial court in this regard was upheld. Therefore, the questions of law in S.A.(MD)No.1179 of 2009 in respect of issue No.3 does not merit any attention. Further sitting in the jurisdiction under Section 100 of C.P.C., this court is not inclined to interfere with the well reasoned order of the courts below. The questions of law framed have been squarely answered by the courts below. Hence both the second appeals are liable to be dismissed. 31.In view of the dismissal of the second appeals, it has to be seen whether there are any merit in the writ petitions filed by the third defendant in W.P.(MD)Nos.12434 of 2009 and 7013 of 2010 and the second defendant in W.P.(MD)No.13120 of 2010? 32.During the pendency of proceedings, Mr.M.Palani, the learned counsel appearing for the petitioner in all writ petitions brought to the notice of this court that an order passed by the Regional Transport Authority, Pudukkottai stating that the permit for the vehicle bearing registration No.TN55/S 4800 cannot be used beyond 31.7.2010. He had also brought to the notice a subsequent notice given on 4.8.2010 asking the parties to appear for an hearing of dispute regarding transfer of permit in view of the stay granted by this court. Though on behalf of the son of S.K.Mohammed Kasim, a counter affidavit in W.P.(MD)No.13120 of 2010 was filed stating that in view of the death of his father, the partnership was automatically dissolved and therefore, the second defendant firm should not be allowed to be operated, already this Court has upheld the judgment and decree of the lower appellate court, wherein dissolution of defendants 1 and 2 has been ordered. In respect of second defendant, the third respondent was directed to submit profit and loss account. With reference to rendition of account, the plaintiff can take an appropriate action, but the claim as against defendants 4 to 6 was rejected. Therefore, the authorities will have to abide by the order passed by this court in the two second appeals. The parties are allowed to work out their rights in terms of the judgment and decree passed in O.S.No.2637 of 2004, dated 13.6.2005. 33.In view of the above, both the second appeals will stand dismissed and three writ petitions also will stand dismissed. However, the parties are allowed to bear their own costs. Consequently, connected miscellaneous petitions stand closed. vvk To 1.Secretary, Regional Transport Authority, Tiruchirappalli. 2.The Regional Transport Authority, Tiruchirappalli. 3.Secretary, Regional Transport Authority, Pudukkottai. 4.The Regional Transport Authority, Pudukkottai. 5.The II Additional Subordinate Judge, Tiruchirappalli. 6.The Principal District Munsif, Tiruchirappalli. 

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Madras High Court

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Smt Narun @ Narunissa vs Irshaad on 22 March, 2017

Madhya Pradesh High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM Crl MC No. 3142 of 2007() 1. ABDUL BASHEER.M ... Petitioner Vs 1. THE SUB INSPECTOR OF POLICE ... Respondent 2. STATE OF KERALA REP. BY For Petitioner :SRI.T.G.RAJENDRAN For Respondent : No Appearance The Hon'ble MR. Justice R.BASANT Dated :11/10/2007 O R D E R R.BASANT, J ------------------------------------ Crl.M.C.No.3142 of 2007 ------------------------------------- Dated this the 11th day of October, 2007 O R D E R The petitioner faces indictment in a prosecution for offences punishable under Section 353 I.P.C. Final report has been filed. Cognizance has been taken. The petitioner has not been enlarged on bail at any stage. Consequent to non appearance of the petitioner, the case against him has been transferred to the list of Long Pending Cases. Coercive processes have been issued against the petitioner. The petitioner finds such processes chasing him. 2. According to the petitioner, he is absolutely innocent. His absence earlier was not wilful or deliberate. He is willing to surrender before the learned Magistrate. But he apprehends that his application for regular bail may not be considered by the learned Magistrate on merits, in accordance with law and expeditiously. It is therefore prayed that directions under Section 482 Cr.P.C may be issued in favour of the petitioner. 3. It is for the petitioner to appear before the learned Magistrate and explain to the learned Magistrate the circumstances under which he could not earlier appear before the learned Magistrate. I have no reason to assume that the learned Magistrate would not  Crl.M.C.No.3142 of 2007 2 consider such application on merits, in accordance with law and expeditiously. Every court must do the same. No special or specific direction appears to be necessary. Sufficient general directions have already been issued in Alice George v. The Deputy Superintendent of Police [2003(1) KLT 339]. 4. This Crl.M.C is, in these circumstances, dismissed, but with the specific observation that if the petitioner appears before the learned Magistrate and applies for bail after giving sufficient prior notice to the Prosecutor in charge of the case, the learned Magistrate must proceed to pass appropriate orders on merits and expeditiously - on the date of surrender itself. Hand over a copy of this order to the learned counsel for the petitioner. (R.BASANT, JUDGE) rtr/- Crl.M.C.No.3142 of 2007 3

Abdul Basheer.M vs The Sub Inspector Of Police on 11 October, 2007

Kerala High Court

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Writ Petition No.2130/2004 Banshi Lal Ramnath Agrawal School, Ajmer Vs. State of Rajasthan and Others Date of Order ::: 23.11.2010 Present Hon'ble Mr. Justice Mohammad Rafiq Shri Virendra Lodha with Shri Vinod Goyal, Counsel for petitioner Shri S.D. Khaspuria, Additional Government Counsel for respondents #### By the Court:-This writ petition has been filed by petitioner with prayer that in so far as selection scale and gratuity is concerned, which has been ordered to be paid to retired employee i.e. respondent no.2, a larger bench of this court in S.R. Higher Secondary School Vs. Rajasthan Non-Government Educational Institutions Tribunal Jaipur and Others RLW 2003 (1) Raj. 530, has categorically held that government is liable to pay to non-government educational institutions proportionate grant-in-aid towards payment of selection scale regarding gratuity. Supreme Court in Rajasthan Welfare Society Vs. State of Rajasthan (2005) 5 SCC 275, has held that aided non-government educational institution concerned shall be free to make a representation to government and in case of filing of such representations by such institution, the State Government would consider sympathetically question of gratuity amount payable to employees being taken into consideration for purpose of computing amount of grant-in-aid. Petitioner may not be saddled with such liability of payment. Petitioner although may be required to make such payment to retired teacher but if she was working on a post against which grant-in-aid was being received, government is liable to pay proportionate amount to such institution. Shri S.D. Khaspuria, Additional Government Counsel appearing on behalf of respondent State, has opposed writ petition and submitted that as far as gratuity is concerned, Supreme Court in Rajasthan Welfare Society's case (supra) merely directed that educational institution would be free to make representation and government would consider the same sympathetically. Having regard to facts of present case and submissions of respective parties, this writ petition is disposed of requiring petitioner to make a representation to government for making payment of selection scale in terms of larger bench decision of this court in S.R. Hr. Sec. School (supra), wherein this court has categorically held that government would be under an obligation to pay grant-in-aid towards payment of selection scale to retired employee of such institution which shall form part of salary as defined in 2(r) of Rajasthan Non-Government Education Institutions (Recognition, Grant in Aid and Service Conditions etc.) Rules, 1993. So far gratuity is concerned, Supreme Court in Para 17 of judgment in Rajasthan Welfare Society (supra), held as under:- 17. Before parting, we wish to note that if representations are made by aided non-government educational institutions, the State Government would consider sympathetically the question of the gratuity amount payable to the employees being taken into consideration for the purpose of computing the amount of grant-in-aid. We, however, clarify that pending making of such representation and its consideration, the payment of gratuity to the employees shall not be delayed. In view of above, petitioner is directed to make representation to government. In case such representation is made, same shall be decided within a period of three months from the date of its making. (Mohammad Rafiq) J. //Jaiman//

Banshi Lal Ramnath Agrawal vs State Of Raj & Ors on 23 November, 2010

Rajasthan High Court

Gujarat High Court Case Information System Print OJA/42/2010 2/ 2 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD O.J.APPEAL No. 42 of 2010 In COMPANY PETITION No. 150 of 1996 With CIVIL APPLICATION No. 246 of 2010 In O.J.APPEAL No. 42 of 2010 ====================================== SUZUKI PARASRAMPURIA SUITINGS PRIVATE LIMITED Versus OFFICIAL LIQUIDATOR APPOINTED FOR MAHENDRA SUITINGS LIMITED & OTHERS ====================================== Appearance : Mr MAULIK G NANAVATI for the Appellant Mr Roshan Desai for the Official Liquidator None for Opponent(s) : 2 - 7. ====================================== CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date : 14/06/2010 ORAL ORDER(Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) O.J.APPEAL No. 42 of 2010 Notice returnable on 5th July 2010. CIVIL APPLICATION No. 246 of 2010 Notice returnable on 5th July 2010. In the meanwhile, effect and operation of the order of the learned Company Judge is stayed. Mr Roshan Desai, learned advocate for the Official Liquidator waives service of notice for the Official Liquidator. (Bhagwati Prasad, J.) (J.C.Upadhyaya, J.) *mohd     Top

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

Appearance : vs Unknown on 14 June, 2010

Gujarat High Court

JUDGMENT Anil Kumar, J. 1. The petitioner has sought quashing of termination of contract by letter dated 7th August, 2006 and for handing over the peaceful and vacant possession of the contract site for permitting the petitioner to execute the work under the contract dated 29th July, 2006 and a restraint against respondents from awarding/permitting any other person or organization from working at the site under the contract which was awarded to the petitioner. The petitioner has also prayed for a declaratory decree that the agreement dated 29th July, 2006 is subsisting, valid and binding on the respondents. 2. The petitioner contended that respondent gets its office maintenance and cleaning work done from the private firms and persons by placing orders on them and for that purpose floats tenders. It was contended that respondent is guilty of committing breach of contract and playing fraud since inception, as initially a tender which was issued earlier, the bid of the petitioner was not opened and on account of intervention by the concerned authorities, the said earlier tender was recalled. 'Subsequently', again the tender was floated and the petitioner was awarded the tender and letter of intent was issued to the petitioner on 17th June, 2005. The bank guarantee which was submitted by the petitioner required some modification which was done by the petitioner, however, there seem to be dispute about the bank guarantee which was sent by the petitioner after modification. As according to the petitioner the bank guarantee which was sent was not accepted by the respondent. Ultimately the petitioner received a letter from the respondent on 28th July, 2006 and an agreement was executed on 29th July, 2006. 3. At the time of signing of the agreement, there was hooliganism by old employees which was communicated by the petitioner to the DGM of the respondent. The petitioner, it seems, also issued appointment letters to some of the existing workers to avoid disputes. The appointment letter issued by the petitioner to some of the workers were received however some other workers refused to accept the appointment letters. 4. On account of disturbances caused by some of the workers, the petitioner filed a complaint of man-handling and threat of life to the his employees working in the office of the respondent with the SHO, Police Station, Parliament Street, New Delhi. On account of disturbances, the work could not be commenced entailing filing of a suit for permanent injunction and mandatory injunction by the petitioner against the respondent and against Delhi Multi- Story Employees' Congress seeking decree of permanent injunction. The petitioner also sought restraint against the defendants in that suit from preventing the plaintiff and his employees from entering the property and an injunction against the respondent from allowing other workers to enter into office and from availing the maintenance service from other defendants and a decree of mandatory injunction to direct the respondent to issue gate passes to the employees of the plaintiff. 5. On account of these problems regarding the contract for everyday cleaning of the offices of the respondent because of which the petitioner could not commence the work of cleaning as per the contract agreement dated 29th July, 2006, by letter dated 7th August, 2006 the respondent terminated the contract with immediate effect and forfeited the security deposit and encashed the bank guarantee submitted by the petitioner. The respondent has also claimed damages with interest @ 17% per annum. In these circumstances, the petitioner has filed the above petition seeking the prayers as detailed hereinbefore. 6. The petitioner has relied on Harbanslal Sahnia and Anr. v. Indian Oil Corporation Ltd. and Ors. , Ashish Gupta v. IBP Co. Ltd. and Anr; Vinay Construction Co. and Ors. v. Municipal Corporation of Delhi and Anr. ; , Allied Motors Ltd. v. Bharat Petroleum Corporation Ltd.; , SPS Engineering Ltd. v. Indian Oil Corporation Ltd. , Bharat Filling Station and Anr. v. Indian Oil Corporation Ltd. and , Ajay Jadeja v. Union of India and Ors. to contend that the writ petition is maintainable and this Court must exercise its discretion under Article 226 of the Constitution of India. 7. I have heard the learned Senior counsel for the petitioner at length. He insists that this Court must exercise jurisdiction under Article 226 of the Constitution relying on various decision cited by him. 8. The cases relied on by the petitioner are clearly distinguishable and does not lay down that in every case jurisdiction must be exercised even if it is in domain on contractual matters. To exercise the discretion to interfere under Article 226 of the Constitution of India even in contractual matter is with the Court, however, the petitioner can not insist that the Court must exercise its discretion under Article 226 of the Constitution of India. 9. The decisions relied on by the petitioner are distinguishable and on the basis of same, the petitioner can not insist that the Court must exercise its discretion. A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it. The ratio of any decision must be understood in the background of the facts of that case. It has been said long time ago that a case is only an authority for what it actually decides, and not what logically follows from it. It is well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision. The Supreme Court in Bharat Petroleum Corporation Ltd and Anr. v. N.R.Vairamani and Anr. AIR 2004 SC 778 had observed: Court should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes. The following words of Lord Denning in the matter of applying precedents have become locus classicus: Each case depends on its own facts and a close similarity between one case and Anr. is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases (as said by Cordozo) by matching the colour of one case against the colour of Anr.... To decide therefore, on which side of the line a case falls, the broad resemblance to Anr. case is not at all decisive. With these proposition lets consider the precedents relied on by the petitioner and whether these precedents mandate this Court to exercise its jurisdiction under Article 226 of the Constitution of India in the contractual matter of the petitioner under which he entered into a cleaning and office maintenance agreement of the respondent's offices and could not carry out cleaning and maintenance work for various reasons entailing cancellation of his contract. 10. In Harbanslal Sahnia (supra) relied on by the petitioner, the dealer of petroleum products had approached the court in a petition under Article 226 of Constitution of India against the order of termination of his dealership. The cancellation of the dealership was based on failure of dealer sample. The plea of non-cooperation and discourteous behavior of the dealer had also been alleged in a general way without specifying what was non-cooperation and what was discourteous shown to the officers of the Corporation. These grounds formed the subject matter of an earlier show cause notice which was not pressed and it was held that the order of termination was not founded on these ground except that the dealer sample had failed. There was an arbitration agreement also between the dealer and Indian Oil Corporation and in these circumstances, it was held that the rule of exclusion of writ jurisdiction will not be applicable according to the discretion of the Court where the petitioner seeks enforcement of fundamental right or where there is violation of principle of natural justice or where the orders or proceedings are wholly without jurisdiction. In the said case, since the issue involved enforcement of the fundamental rights of the petitioner and there was a violation of principle of natural justice the court had exercised its discretion under Article 226 and the Court held that since the dealership which was bread and butter of the dealer was sought to be terminated for irrelevant and non-existing causes, as a discretion, High Court ought to have exercised its jurisdiction under Article 226 of the Constitution of India. The Apex Court however, did not held that in every case where there is an arbitration agreement and agreement has allegedly been terminated without giving notice the discretion must be exercised by exercising jurisdiction under Article 226 of the Constitution of India. 11. In Ashish Gupta (supra), the petitioner had not claimed damages or adjudication of contractual disputes between the parties. In contradistinction to the relief prayed by the petitioner for restoration of possession and a declaratory writ or any other appropriate writ, order or direction that the agreement dated 29th July, 2006 is subsisting, valid and binding on the respondent and that the agreement is still subsisting and no other person should execute any work of cleaning in the office of the respondent, in the case relied on by the petitioner the disputes involved the simplicitor termination of dealership. While deciding the case Ashish Gupta (supra) the learned single Judge had noticed Indian Oil Corporation Ltd. v. Amritsar Gas Company holding that validity of award ought to be decided on the principles of private law and the law of contracts and not on the touchstone of Constitutional limitations of a State or its instrumentality. The said case was distinguished on the ground by the learned single judge as petitioner had not claimed in Ashish Gupta (supra) damages or an adjudication of the contractual disputes between the parties. The relevant observation of the learned single judge is as under. 9. In my view it would not be proper to lose sight of the main grievance in the petition. It is that the principles of natural justice have deliberately been ignored; that no Show Cause Notice was issued to the petitioner and he was not granted an opportunity of remonstrating against the intended decision of terminating his Dealership. The petitioner does not claim damages or an adjudication of the contractual disputes between the parties. In my view that is the distinguishing feature between the facts of the present case and the observations of the Supreme Court in Amritsar Gas Service where the Court had before it proceedings initiated through a suit and an Award passed thereafter. Therefore the case of Ashish Gupta (supra) relied by the petitioner is apparently distinguishable as he is claiming a declaratory decree, recovery of possession of the premises to execute his contract and a prohibitory injunction that the respondent should not award the work to any other person or company. In this case the single Judge had also held that the question whether the contract can be specifically enforced or not must be left to the arbitrator to adjudicate upon and decide. 12. The matter pertaining to Vinay Construction Company (supra) was regarding black-listing six concerns and delisting them from the list of contractors whereas in Allied Motors (supra), the petition was filed against the letter seeking cancellation of license for running petroleum pump and for direction to handover possession of the petrol pump and had sought that the Oil company must not violate and act contrary to the guidelines framed to facilitate uniform practice and in absence of a show cause notice canceling the petroleum pump and recovering the possession from the petitioner was quashed. The case of the petitioner is not of discrimination in applying the guidelines. The petitioner had entered into a contract for cleaning and maintenance of the offices of the respondent and could not carry out the work of cleaning and maintenance which is so essential in everyday life because of various reasons entailing in cancellation of the agreement. The petitioner, however, wants to enforce an agreement which is not enforceable under the provisions of Specific Relief Act on the ground that the termination is not valid. The petitioner also wants a prohibitory injunction and a declaratory decree. 13. Even if the agreement of the petitioner was not determinable before the expiry of its term and could not be terminated without notice of month, perusal of Sections 14 and 41 of Specific Relief Act reflect that a contract cannot be specifically enforced which in its nature is determinable and injunctions are not to be granted on breach of contract, nonperformance of which could not be specifically enforced and/or when a party has an equally efficacious remedy available to him under civil law. Under Section 14(1)(a) of the Specific Relief Act, the specific performance of an agreement can not be granted, breach of which can be compensated by money. The petitioner has impugned the action of the respondents in terminating the contract by communication dated 7th August,2006 before the expiry of the term of the contract. Perusal of the agreement between the parties, it is apparent that the agreement was determinable and has been determined by the respondent. Even if the inference is that the agreement between the parties was not terminated validly and could not be terminated, then the petitioner shall only be entitled for damages and the petitioner will not be entitled for specific performance of this agreement. Section 14(1)(c) of the Specific Relief Act also prohibits specific performance of an agreement which by its nature is determinable. Even injunction can not be granted under Section 41 of the Specific Relief Act to prevent the breach of contract performance of which cannot be specifically enforced especially in the case of the petitioner who had not even been handed over the site for cleaning and maintenance as the petitioner is claiming possession of the premises to execute his contract for cleaning and maintenance. 14. The petitioner has contended that a notice has not been given before terminating the agreement for cleaning the offices of the respondent entered between petitioner and respondent. While considering whether principle of natural justice has been violated or not, it has also to be considered whether the observance of principle of natural justice can be dispensed with in general public interest. Whether the immediate action had to be taken keeping in view of serious consequences following non execution of contract by the petitioner. What also has to be considered is, whether the observance of principle of natural justice will be so time consuming that it may defeat the very purpose for which the immediate action is required in a given case. Whether the principle of natural justice can be dispensed with in certain immediate situations' The apex Court in 1986 (Supp) SCC 617, Shiv Sagar Tiwari v. Union of India, had held that the Court would not compel observance of rules with natural justice in the following cases: i. where giving of notice would obstruct taking of prompt action and the matter is urgent and requires prompt action. Inaction or delay would paralyze the administrative process/machinery. ii. where on indisputable or admitted facts, only one conclusion was possible and it would be futile to issue a writ or compel observance of principles of natural justice. iii. where observance of principles of natural justice is excluded by express provisions of statute or by implication. The offices of the respondent require everyday cleaning and maintenance. For various reasons the petitioner could not carry on the work for cleaning and maintenance of the offices despite the suit for injunction filed by the petitioner against the respondent and other persons. Whether the termination of contract was on account of lapses and breaches on the part of the petitioner or respondent would require detailed trial and adjudication of respective pleas after evidence which may be led by the parties. Merely on the basis of pleadings it may not be possible to ascertain who had breached the agreement. 15. As far as other judgments relied on by the petitioner are concerned, in Allied Motors Limited (supra) in view of peculiar circumstances, the order of termination of the dealership was not sustained and was quashed. In SPS Engineering Ltd. (supra) the petitioner was black-listed for three years without providing any opportunity of hearing to the petitioner whereas in Bharat Filling Station and Anr. (supra), it was held that for termination of the dealership principle of natural justice were required to be followed and consequently the order terminating the dealership was not sustained. 16.It is also no more res integra that a writ of mandamus to enforce contractual liability can be issued when the action is without jurisdiction or in excess of jurisdiction or when the action is without complying with the principle of natural justice or when the action infringes Article 14 or Article 21 of the constitution of India or when the action is so unreasonable (Wednesbury principle) that it shocks the conscience of the Court and is manifestly wrong or perverse on the fact of the record. 17. Considering the contract between the petitioner and the respondent, it cannot be inferred that it was a statutory contract. The apex Court in Kerala State Electricity and Anr. v. Kurian K. Kalathi and Ors. had held that interpretation and implementation of a clause in the contract can not be the subject matter of a writ petition and if a term of the contract is violated ordinarily, the remedy is not the writ petition under Article 226 of the Constitution of India. The observance of the apex Court are as under: 10. We find that there is a merit in the first contention of Mr Raval. learned Counsel has rightly questioned the maintainability of the writ petition. The interpretation and implementation of a clause in a contract cannot be the subject-matter of a writ petition. Whether the contract envisages actual payment or not is a question of construction of contract. If a term of a contract is violated, ordinarily the remedy is not the writ petition under Article 226. We are also unable to agree with the observations of the High Court that the contractor was seeking enforcement of a statutory contract. A contract would not become statutory simply because it is for construction of a public utility and it has been awarded by a statutory body. We are also unable to agree with the observation of the High Court that since the obligations imposed by the contract on the contracting parties come within the purview of the Contract Act, that would not make the contract statutory. Clearly, the High Court fell into an error in coming to the conclusion that the contract in question was statutory in nature. 11. A statute may expressly or impliedly confer power on a statutory body to enter into contracts in order to enable it to discharge its functions. Dispute arising out of the terms of such contracts or alleged breaches have to be settled by the ordinary principles of law of contract. The fact that one of the parties to the agreement is a statutory or public body will not by itself affect the principles to be applied. The disputes about the meaning of a covenant in a contract or its enforceability have to be determined according to the usual principles of the Contract Act. Every act of a statutory body need not necessarily involve an exercise of statutory power. Statutory bodies, like private parties, have power to contract or deal with property. Such activities may not raise any issue of public law. In the present case, it has not been shown how the contract is statutory. The contract between the parties is in the realm of private law. It is not a statutory contract. The disputes relating to interpretation of the terms and conditions of such a contract could not have been agitated in a petition under Article 226 of the Constitution of India. That is a matter for adjudication by a civil court or in arbitration if provided for in the contract. Whether any amount is due and if so, how much and refusal of the appellant to pay it is justified or not, are not the matters which could have been agitated and decided in a writ petition. The contractor should have relegated to other remedies. 18. Similarly, in Baraily Development Authority and Anr. v. Ajay Pal Singh and Ors. , it was held that when a State or other authority within the meaning of Article 12 enters into ordinary contract with private persons, parties are governed by the terms of the contract and aggrieved party is not entitled to seek redress under Article 226 for breach of contract. The relevant observation of the Apex Court is as under: 21. This finding, in our view, is not correct in the light of the facts and circumstances of this case because in Ramana Dayaram Shetty case1 there was no concluded contract as in this case. Even conceding that the BDA has the trappings of a State or would be comprehended in 'other authority' for the purpose of Article 12 of the Constitution, while determining price of the houses/flats constructed by it and the rate of monthly installments to be paid, the 'authority' or its agent after entering into the field of ordinary contract acts purely in its executive capacity. Thereafter the relations are no longer governed by the constitutional provisions but by the legally valid contract which determines the rights and obligations of the parties inter se. In this sphere, they can only claim rights conferred upon them by the contract in the absence of any statutory obligations on the part of the authority (i.e. BDA in this case) in the said contractual field. 22. There is a line of decisions where the contract entered into between the State and the persons aggrieved is non-statutory and purely contractual and the rights are governed only by the terms of the contract, no writ or order can be issued under Article 226 of the Constitution of India so as to compel the authorities to remedy a breach of contract pure and simple ' Radhakrishna Agarwal v. State of Bihar2, Premji Bhai Parmar v. Delhi Development Authority3 and DFO v. Biswanath Tea Company Ltd. 23. In view of the authoritative judicial pronouncements of this Court in the series of cases dealing with the scope of interference of a High Court while exercising its writ jurisdiction under Article 226 of the Constitution of India in cases of non-statutory concluded contracts like the one in hand, we are constrained to hold that the High Court in the present case has gone wrong in its finding that there is arbitrariness and unreasonableness on the part of the appellants herein in increasing the cost of the houses/flats and the rate of monthly installments and giving directions in the writ petitions as prayed for. 19. The petitioner is not only seeking annulling the termination of the contract but is also seeking that the possession of the site be handed over to the petitioner in view of the agreement which has already been terminated and is also seeking a prohibitory restraint against the respondent from handing over the site to anyone and a declaration that the agreement dated 29th July, 2006 is subsisting, valid and binding on the respondents. In Orissa State Financial Corporation v. Narsingh Ch. Nayak and Ors. , the apex Court had held that the High Court under Article 226 of the Constitution cannot ignore the scope of a writ petition on the basis of contractual obligation between the parties and issue such directions annulling the existing contract and introducing a fresh contract in place. 20. Dealing with the bids which are voluntarily given in auction with full knowledge of the terms and conditions attaching to the auction, it was held that the debtors cannot be permitted to wriggle out of the contractual obligations arising out of acceptance of the bid. 'In those circumstances, the Supreme Court had held that the writ jurisdiction cannot be invoked to avoid contractual obligation or to enforce contractual obligation in State Bank of Haryana and Ors. v. Jage Ram and Ors. (1980) 2 SCC 599. A Division Bench of this Court in , Niranjan Lal Dalmia v. Union of India, had held that there is a clear distinction between a statutory obligation and a contractual obligation of the Government to pay money to a person. Statute imposes public duties while the duty imposed by a contract is owed by the Government not to the public but to the petitioner individually. Contravention of statutory duty makes action of the Government illegal. The breach of contract is not illegal in the same sense. Direct contravention of statute is illegal but the breach of a contract may be wrongful and it is not a contravention of any statute directly and, therefore, the duty imposed by statute is different from a duty imposed by contract. Therefore, the breach of the first duty amounts to illegality while the breach of the second type of duty amount only to a breach of contract. 21. The contract entered between the petitioner and the respondent is for everyday cleaning and maintenance of the offices of the respondent and for various reason, the contract has not been executed. In such an emergent situation, the termination of contract by the respondent cannot be termed without jurisdiction or in excess of jurisdiction or infringing or violative of Articles 14 or 21 of the Constitution or such termination which is so unreasonable that it shocks the conscience of the Court and is manifestly wrong or perverse. 22. Consequently, considering the facts and circumstances, I decline to exercise discretion to exercise jurisdiction under Article 226 of Constitution of India against the termination of the contract of cleaning and maintenance of the offices of the respondent by letter dated 7th August, 2006 and decline to consider the claim of the petitioner for prohibitory injunction and for a declaration. The writ petition is therefore, dismissed in liming. The petitioner, however, shall be entitled to seek such other civil remedies which may be available to the petitioner in the facts and circumstances.

Author: A Kumar

Everest Enterprises vs Steel Authority Of India Ltd. on 30 August, 2006

Delhi High Court

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 27.02.2007 CORAM THE HON'BLE MR.JUSTICE S.ASHOK KUMAR CRP. PD No. 282 of 2006 and C.M.P. No.2577 Of 2006 & VCMP. No.367 of 2006 P.Subbiah Gounder ... Petitioner Vs 1. Sakthi Gopala Krishnan 2. Jayaraman 3. Mylathal ... Respondents Civil Revision Petition filed under Article 227 of the Constitution of India against the fair and decretal order dated 26.10.2005 made in I.A.No. 963 of 2004 in O.S.No. 401 of 2003 on the file of the learned District Munsif, Pollachi. For Petitioner : Mr.Kannan for M/s. Sampathkumar Associates For Respondents : Mr. K. Selvaraj ORDER As against the the dismissal of the I.A.No:963 of 2004 filed by the revision petitioner/second defendant under Order 7 Rule 11 CPC, to reject the Plaint, this revision has been filed. 2. According to the revision petitioner, there is no proper cause of action for instituting the present suit by the respondent/plaintiff, because in all the earlier proceedings before various forums, the first defendant has has lost his case and now instigated the other plaintiffs to file the present suit. But the learned District Munsif, Pollachi, accepting the averments of the plaintiffs as well as the decisions of the Apex Court, dismissed the said I.A., holding that maintainability of the suit has to be decided on the averments contained in the plaint and any allegation that the earlier decisions will bind the plaintiffs and there is there is no cause of action or the issue of limitation could be determined only after letting in sufficient evidence in that regard during trial. Aggrieved over the same, the present revision has been preferred. 3. Mr.Kannan, Learned Counsel appearing for the revision petitioner would contend that the trial Judge failed to look into the Section 97 of the Indian Succession Act. According to him, as per the Will, the plaintiffs do get any share in the suit properties. Further the sale deed dated 28.10.1972 is not void, but can only be voidable and that a suit for partition will not lie without setting aside the sale. Therefore, the present suit is nothing but sheer abuse of process of law. 4. A perusal of the earlier proceedings between the parties would throw a light for the summary disposal of this CRP. The suit property was owned by one Smt.Krishnammal and she executed a Will dated 18.8.1969, by which she bequeathed her entire property to her daughter Smt.Mylathal, the third respondent herein. Her sons, the respondents 1 and 2 herein have no right, title or interest in the suit property since the language of the WILL is clear and simple. Based on the said Will, Smt.Mylathal sold 4 acres and 56 cents to the revision petitioner by sale deed dated 28.10.1972. A suit for specific performance was fled by the revision petitioner before the Sub Judge, Udumalpet in O.S.No.24 of 1984 and the same was decreed on 30.4.1986. Following the decree, in EPR.No.66 of 1986 the sale deed was executed in favour of Dr.Jayakumar, the nominee/son of the revision petitioner, Subbiah Gounder on 20.8.1987 by the Sub Judge, Udumalpet on behalf of Smt.Mylathal. Smt.Mylathal, the third respondent filed A.S.No:54 of 1987 against O.S.No:24 of 1984. The said appeal was dismissed on 29.7.1989. Against the said judgment and decree passed in A.S.NO:54 of 1987, Smt.Mylathal filed S.A.No.801 of 1991 before this Court which was also dismissed on 10.7.1991. Having lost all the cases before all the courts, the third respondent further instigated her brother Kandasamy to file a suit in O.S.No:394 of 1990 before the Sub Court, Udumalpet for a declaration that he is entitled to share in the suit schedule property and the same was dismissed for default on 15.3.1993. The I.A.No.979 of 1993 filed to restore the said suit was also dismissed for not paying the cost as ordered by the Sub Court, Udumalpet. He also field another suit in O.S.No:278 of 1999 before the same court and in the said suit, the revision petitioner herein filed I.A.No.168 of 2000 for rejection of the plaint and the same was dismissed on 12.6.2000. However, in the CRP.1826 of 2000 filed before this court against the dismissal order in I.A.NO:168 of 2000 was set aside and the CRP was allowed on 15.6.2005 with a direction to reject the plaint in O.S.No:278 of 1999. 5. Yet, again, Smt.Mylathal the third respondent herein filed the present suit in O.S.No:401 of 2003, before the District Munsif Court, Pollachi, through her sons when they have no right at all. The above previous litigation would definitely establish the malafide intention of the third respondent who has instigated her sons and caused them to file the suit when the revision petitioner is having the bona fide title to the suit property as evidenced by the judgment and decrees of the various courts. In fact the legal battle is going on for the past 32 years, yet the revision petitioner is unable to enjoy the fruits of the decrees till date. The recital in the Will would show that Mylathal has been bequeathed with absolute right in the suit schedule property, which has been sold to the revision petitioner. The very same schedule of property has been described in all the earlier suits filed by the respondents. Therefore having lost in the earlier legal battle, the respondents have no manner of right to again an again approaching the court, which is nothing but abuse of process of law. The right or claim made by the respondents/plaintiffs is manifestly false and vexatious. 6. Learned counsel for the revision petitioner also relied upon the judgment of V.R.Krishna Iyer reported in AIR 1977 SC 2421 (Arivanandam Vs. Satyapal), wherein it has been held as follows: "5. We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and unrepentantly resorted to. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now pending before the First Munsif's Court, Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints. The learned Munsif must remember that if on a meaningful-not formal- reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under O.VII R.11, CPC taking care to see that the ground mentioned therein is fulfilled. And, if clear drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under O.X CPC. An activist Judge is the answer to irresponsible law suits. The trial courts would insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage. The Penal Code is also resourceful enough to meet such men (Ch.XI) and must be triggered against them In this case, the learned Judge to his cost realised what George Bernard Shaw remarked on the assassination of mahatma Gandhi "it is dangerous to be too good". 7. The above facts would only go to show that the respondents by playing fraud and misrepresentation have filed the suit. The plaintiffs have not approached the court with clean hands and are guilty of fraud, suppression of facts and misrepresentation and as such they are not entitled for any relief. Fraud is proved when it is shown that a false representation has been made (i) knowingly, or (ii) without belief in its truth, or (iii) recklessly, careless whether it be true or false. Fraud is a conduct either by letter or words, which induces the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letter. Although negligence is not fraud but it can be evidence on fraud. A "fraud" is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is a cheating intended to get an advantage as has been held by the Apex Court in S.P.Chengalvaraya Naidu V. Jagannath reported in 1994 (1) SCC 1. This aspect of the matter has also been considered by the Hon'ble Supreme Court in its decisions in Roshan Deen V. Preeti Lal (2002 (1) SCC 100); Ram Preeti Yadav V. U.P.Board of High School and intermediate Education (2003 (8) SCC 311); Ashok Leyland Ltd. V. State of T.N.(2004 (3) SCC 1); and State of A.P. And another Vs. T.Suryachandra Rao (2005 (6) SCC 149. The Court has the discretion to strike out the pleading on being satisfied of there being no chance of success in the suit. What is required to be disclosed by the plaintiff is a clear right to sue and failure to do so must necessarily entail in rejection of the plaint. In view of the settled legal position of law, the case of the plaintiffs has to be thrown out at the threshold and in this case, it is the duty of the court to reject the Plaint. 8. In the result, the CRP is allowed setting aside the order passed in I.A.No. 963 of 2004 in O.S.No. 401 of 2003 by the learned District Munsif, Pollachi and the learned Judge is directed to reject the Plaint by striking off the same from the suit register. 9. Consequently, CMP.No.2577 of 2006 is closed and VCM P.No.367 of 2006 is dismissed. No costs. gkv Copy to: The District Munsif, Pollachi. [PRV/9685]

P.Subbiah Gounder vs Sakthi Gopala Krishnan on 27 February, 2007

Madras High Court

JUDGMENT 1. This appeal arises out of a suit brought by the plaintiffs who are co-sharers against the defendant (who is the lambardar) for profits. In the events which have happened the only point which we are called upon to decide is 'whether the lower Appellate Court was correct in directing that in estimating what was due to the plaintiffs the sir and khudkasht held by the other co-sharers should be taken into account. The lower Appellate Court held that it should. The defendant contends that it should not. If the sir and khudkasht should be left out of consideration the defendant's appeal should be allowed. If, on the other hand, it should be taken into consideration the appeal should be dismissed. 2. The appellant's contention is that having regard to the ruling in Bishambhar Nath Bhola 12 Ind. Cas. 920 : 8 A L.J. 1245 : 34 A. 98 the Court below was wrong in directing that the sir and khudhasht should be taken into account. In that case it was held that a lambardar could not bring a suit to recover profits due to him and other co-sharers from some of the co-sharers who held sir and khudkasht in excess of their proper shares. The argument is that inasmuch as the lambardar could not sue for the profits of sir and khudkasht he cannot be made liable, and it is sought to extend this doctrine still further by getting the Court to hold that in a suit under Section 164 sir and khudkasht must be totally disregarded. To illustrate the question under consideration we will suppose a case. A the lamhardar has in his hand Rs. 1,000 representing rents which he has collected. He is sued by B, who holds a two-anna share in the mahal, for Rs. 125, out of the Rs. 1,000. The lambardar admits that he has the Rs. 1,000, and admits that the plaintiff has a two-anna share in the mahal, but says that the plaintiff holds sir and khudkasht in excess of the other co-sharers and that he objects to pay the plaintiff his proportionate share in the Rs. 1,000, without taking into consideration the sir and khudkasht which he holds. According to the contention of the appellant on the authority of Bishambhar Nath v. Bhola 12 Ind. Cas. 920 : 8 A.L.J. 1245 : 34 A. 98 the lambardar would have no answer and would be obliged to pay the plaintiff the whole Rs. 125, It is not quite clear that such an inequitable result really follows from the decision of Bishambhar Nath v. Bhola 12 Ind. Cas. 920 : 8 A L.J. 1245 : 34 A. 98. The case was considered in the case of Gulzari Mal v. Jai Ram 24 Ind, Cas. 178 : 36 A. 441 : 12 A.L.J. 606. The argument in Bishambar Nath v. Bhola 12 Ind. Cas. 920 : 8 A L.J. 1245 : 34 A. 98 and the ground upon which the judgment proceeded was that the lambardar was not the agent for the co-sharers so as to enable him without joining the other co-sharers to bring a suit against a co-sharer in respect of the profits of sir and khudkasht. The Court held that he was not the agent for the co-sharers. It seems to us that if the, case of Bishambhar Nath v. Bhola 12 Ind. Cas. 920 : 8 A L.J. 1245 : 34 A. 98 was rightly decided, it follows that the lambardar could not even sue a tenant for rent without joining all other co-sharers. There is no special section in the Tenancy Act which provides for a suit by a lambardar as such against a tenant, and yet we know that it is the regular practice in lambardari villages that the lambardars sue the tenants for rent, and that it is frequently made a ground for making them liable upon the gross rental that they have neglected to bring such suits. If the lambardar is the agent of the co-sharers to bring a suit for rent, he seems to be equally their agent for the purpose of bringing a suit against co-sharers who hold sir and kudkasht in excess and who have refused to allow the sir and khudkasht which they hold to be taken into account. In the case of Gulzari Mal v. Jai Ram 24 Ind Cas. 178 : 36 A. 441 : 12 A.L.J. 606 the learned Judges refer to the definition of "lambardar" in the Land Revenue Act. "Lambardar" in the Tenancy Act is declared to have the same meaning as in the Land Revenue Act. In the Land Revenue Act the expression is defined to mean "a co-sharer of a mahal appointed under this Act to represent all or any of the co-sharers in that mahal." In the lambardari villages in these provinces the duties of the lambardar are fairly well understood and recognised. Beyond all doubt he has the power of collecting rents. The following extract from a judgement of the Board of Revenue in our judgment fairly describes the position of the lambardar in a lambardari village: "Speaking generally the lambardar is the manager of the common lands entitled to collect the rents, settle tenants, eject tenants, procure enhancement of rents, and do all necessary acts relating to the management of the estates for the common benefit." It is contended that the only remedy which the plaintiffs had in a suit like the present was a suit under Section 165 against all the co-sharers for a settlement of accounts, and it is further contended that sir and khudkasht rights can never be satisfactorily taken into account except in such a suit where all the co-sharers are parties. It is to be noticed that Section 165 does not specifically refer to a suit by the lambardar as such. No doubt the lambardar is a co-sharer and would be entitled like any other co-sharer to bring a suit for settlement of accounts. Section 165 does not provide that all the co-sharers must necessarily be parties to the suit, although, no doubt, in very many cases it would be convenient that they were. The objection that may be made as to want of parties is met by this answer that it is open to any party to a litigation in a proper case to ask the Court to add parties. The Court also can do this of its own motion. It has a jurisdiction which the Court ought not to hesitate to exercise in a fit and proper case. 3. We think that the decision of the Court below was correct and should be affirmed. We accordingly dismiss the appeal with costs.

Ganga Singh vs Ram Sarup And Anr. on 31 January, 1916

Allahabad High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.120 of 2010 RAJESH KUMAR ARYA & ORS Versus STATE OF BIHAR & ORS ----------- PNM (Shailesh Kumar Sinha, J.) 2. 6.12.2010 As prayed for on behalf of the State, put up this case after three weeks retaining its position to enable filing of the counter affidavit.

Rajesh Kumar Arya &Amp; Ors vs State Of Bihar &Amp; Ors on 6 December, 2010

Patna High Court - Orders

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 08.06.2010 CORAM: THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.8906 of 2001 1.K.Desikamani (Deceased) 2.Padmavathi 3.Kasthuri 4.Suseela 5.Kumar 6.Sumathi 7.Janagi ... Petitioners (P2 to P7 are proposed petitioners substituted as legal heirs of deceased petitioner as per order dated 11.03.2010 by KCJ in WPMP No.226 of 2010 in W.P.No.8906 of 2001) Vs 1.The Presiding Officer, Labour Court, Vellore. 2.The Management of Tamilnadu Transport Corporation Ltd (Division II) Rangapuram, Vellore. (Formerly known as Pattukottai Alagiri Transport Corporation Ltd.) ...Respondents PRAYER:-Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of certiorarified mandamus, calling for the records pertaining to the impugned Award passed by the first respondent in I.D.No.146/94 dated 20.11.2000 quash the same and consequently direct the second respondent to reinstate the petitioner with backwages and continuity of service. For petitioner : Mr.V.Ajay Khose For Respondents : Ms.Rajeswari for M/s.King and Partridge for R2 O R D E R The original petitioner was a workman in the second respondent state owned Transport Corporation. He has filed the present writ petition, seeking to challenge the Award passed by the first respondent Labour Court, Vellore in I.D.No.146 of 1994 dated 20.11.2000. By the impugned Award, the Labour Court dismissed the Industrial Dispute raised by the workman and refused to grant any relief. 2. The writ petition was admitted on 27.04.2001. During the pendency of the writ petition, the original petitioner died and his legal representatives i.e. by his wife and children have come on record vide WPMP No.226 of 2010. 3. When the matter came up on 29.07.2009, the matter was referred for a settlement before the Lok Adalat. Since the matter could not be settled, once again it was re-posted before this Court. 4. Heard the arguments of Mr.V.Ajay Khose, learned counsel for the petitioner and Ms.Rajeswari, learned counsel representing M/s.King and Partridge for the second respondent. 5. The facts leading to the case are as follows: The original petitioner was appointed as a Driver in the second respondent Corporation on 24.05.1977 and his services were regularised on 25.02.1978. He was given a charge memo on 11.11.1992 alleging that he drove the bus in Route No.7V/A in a rash and negligent manner on 22.10.1992, which caused an accident resulting in the death of a woman pedestrian. On the basis of the report of an officer of the Corporation Sambandamoorthy, who had inspected the place after the accident, the original petitioner was placed under suspension. Though he was not an eye witness to the accident and did not record the statement of persons who witness the accident, his report was the basis for further action. 6. The petitioner gave an explanation dated 20.11.1992 stating that it was the woman pedestrian who suddenly crossed the road from left to right side and on seeing her, in order to avoid the accident, the original petitioner had to turn the bus to the right side with great difficulty and he managed to stop the bus by applying the brake. But however, the said woman dashed against the front exit of the bus and succumbed to injuries. Not satisfied with his explanation, an enquiry was conducted on 02.01.1993. On behalf of the Management, the officer who inspected the place of accident viz., Sambandamoorthy alone was examined as M.W.1 and Exs.M1 to M8 were marked through him. The original petitioner examined himself as W.W.1. However, the Enquiry Officer held that the charges levelled against the petitioner were proved. Thereafter, a second show cause notice dated 13.02.1993 was issued to him. The petitioner gave his further explanation dated 27.02.1993. The second respondent passed the final order dated 06.04.1993 dismissing him from service. 7. Thereafter, the original petitioner raised a dispute before the Labour Officer, Vellore. The conciliation ended in failure and on the strength of the failure report, he filed a claim statement before the first respondent Labour Court. The Labour Court registered the dispute as I.D.No.146 of 1994 and issued notice to the second respondent. The second respondent filed a counter statement. On the side of the second respondent, 9 documents were filed and they were marked as Exs.M1 to M9. In the meanwhile, he criminal case filed against the original petitioner was ended in favour of the petitioner and he filed the judgment of the criminal Court as Ex.W1. 8. The Labour Court on an appreciation of the materials placed before it came to the conclusion that there was no error on the mode of conducting the enquiry. The Labour Court held that there was rash and negligent act on the part of the petitioner atleast to some extent and he had not exercised the required care and caution at the time of accident, which led to the death one person. After referring to EX.M7, the Labour Court observed that he was subjected to punishment, out of which four were for causing accidents, in driving the vehicles. Therefore, it held that the punishment was not excessive. 9. During the pendency of the writ petition, the second petitioner, who was the wife of the first petitioner filed an additional affidavit dated 25.07.2009 stating that her husband, the original petitioner was the only source of income for their family and he died on 24.01.2006 leaving her, four daughters and one son. The son and the last daughter are yet to be married. She had stated that the Labour Court was totally wrong in denying any kind of relief. Since her husband is no more, at least there can be paper reinstatement with continuity of service and attendant benefits, which enables them to get some terminal benefits. This is an alternative plea taken, if this Court views that the termination does not require any reinstatement with backwages. 10. Mr.Ajay Khose, learned counsel for the petitioner contended that the approach of the Labour Court was totally erroneous. The Conductor of the bus who was present at the time of the accident was not examined though he gave a statement which was instrumental in registering the First Information Report and marked as Ex.M4 in the enquiry. While the sketch Ex.M3 drawn by M.W.1 and the F.I.R.(Ex.M4) was relied upon for the purpose of holding the petitioner guilty, the same was not proved through any legal evidence. The finding of the Enquiry Officer was erroneous since it relied upon unsubstantiated legal evidence. 11. In this context, reference was made to the judgment of this Court in Jeeva Transport Corporation Ltd., v. Industrial Tribunal and another reported in 1994 (2) LLJ 350. In that case, this Court held that Conductor of the bus who was present at the spot of the accident was not examined and even the person who gave the first information to the police was also not examined and dismissed the petition filed by the Corporation. Therefore, placing reliance upon the officer of the Corporation, who was not an eye witness who drew inference from the tyremark cannot be a sufficient evidence to dismiss the workman. 12. The learned counsel also placed reliance upon a judgment of the Division Bench in A.Mariasundararaj v. Cheran Transport Corporation Ltd in W.A.No.2238 of 2000 dated 03.10.2007, wherein in paragraph 13, this Court gave several directions to the manner in which the accident cases are to be handled by a State Transport Corporation. In Paragraph 13(ii), it was stated that the statement of the Driver as well as the Conductor in their own handwriting as to the manner in which the accident had taken place with necessary details should be recorded. In paragraph 13.3, it was stated that they should also record the statement of passengers with their own handwriting and the department must also collect independent materials. In the present case, no such enquiry was made. Even though the directions issued therein may not directly apply to the case on hand, but the warning given by the Division Bench in respect of the method and mode of conducting an enquiry in case of an accident should have been kept in mind by the Corporation. 13. Per contra, Ms.Rajeswari, learned counsel for the second respondent Corporation relied upon the judgment of the Supreme Court in Delhi Cloth and General Mills Co. Ltd v. Ludh Budli Singh reported in 1972 (1) L.L.J. 180. Attention of this Court was drawn to Paragraph 61(3) which reads as follows: "61.3.When the management relies on the enquiry conducted by it, and also simultaeneously adduces evidence before the Tribunal, without prejudice to its plea that the enquiry proceedings are proper, it is the duty of the Tribunal, in the first instance, to consider whether the enquiry proceedings conducted by the management are valid and proper. If the Tribunal is satisfied that the enquiry proceedings have been held properly and are valid, the question of considering the evidence adduced before it on merits no longer survives. It is only when the Tribunal holds that the enquiry proceedings have not been properly held, that it derives jurisdiction to deal with the merits of the dispute and in such a case it has to consider the evidence adduced before it by the management and decide the matter on the basis of such evidence." 14. The learned counsel for the Corporation relied upon another judgment of the Supreme Court in Cholan Roadways Ltd. v. G.Thirugnanasambandam reported (2005) 3 SCC 241. In paragraphs 19 to 21, the Supreme Court held as follows: "19. It is further trite that the standard of proof required in a domestic enquiry vis-`-vis a criminal trial is absolutely different. Whereas in the former preponderance of probability would suffice; in the latter, proof beyond all reasonable doubt is imperative. 20. The Tribunal while exercising its jurisdiction under Section 33(2)(b) of the Industrial Disputes Act was required to bear in mind the aforementioned legal principles. Furthermore, in a case of this nature the probative value of the evidence showing the extensive damages caused to the entire left side of the bus; the fact that the bus first hit the branches of a tamarind tree and then stopped at a distance of 81 ft therefrom even after colliding with another bus coming from the front deserved serious consideration at the hands of the Tribunal. The nature of impact clearly demonstrates that the vehicle was being driven rashly or negligently. 21. Res ipsa loquitur is a well-known principle which is applicable in the instant case. Once the said doctrine is found to be applicable the burden of proof would shift on the delinquent. As noticed hereinabove, the enquiry officer has categorically rejected the defence of the respondent that the bus was being driven at a slow speed." After applying the principles of res ipsa loquitor, the Supreme Court in paragraph 26 held that in such cases burden of proof is on the respondent to prove that the vehicle was not being driven by him rashly or negligently. But however both the decisions arose out of decisions rendered on applying the law relating to Section 33(2)(b) of the I.D.Act. 15. In the light of the rival contention, it must be seen whether the impugned Award calls for any interference. 16. It must be noted that the original petitioner himself gave evidence before the enquiry regarding the manner in which the accident had taken place and the Enquiry Officer rejected the evidence on the ground that the original petitioner cannot absolve himself of the liabilities and he alone has to prove. The Labour Court based on the materials placed observed that the left rear wheel ran over the woman pedestrian which shows the careless and rash act on the part of the petitioner. It observed that a child in the day time and in a playful mode can be crushed to death, by the rear-wheels directly but not an adult especially an old one. Therefore, applying the preponderance of probabilities and going by evidence of M.W.1, the Labour Court held that the charge against the petitioner was proved. But with reference to the evidence let in by W.W.1, the original petitioner, the Labour Court did not even taken note of the substance of the evidence. It is true that there need not be any direct evidence, but in the present case, the author of the FIR and the Conductor who gave statement were marked and relied upon by the domestic enquiry officer, but they were not examined for reasons best known to the corporation. 17. In Delhi Cloth and General Mills Co. Ltd.'s case (cited supra), though the Supreme Court has held that the Court must go by the materials available on record. But that is not an authority, to hold in such circumstances, there need not be legal evidence. The Labour Court may be right in stating that it cannot rely upon Ex.W1 , the judgment of the Criminal Court regarding the subsequent acquittal, but at the same time, it is not as if every statement of an officer of the Corporation has to be believed only on the principle of 'res ipsa loquitor'. If material evidence which are not proved was acted as a substantive evidence, the Court can still reject such evidence and decide independently whether the charges have been proved or not. 18. But at the same time, in the present case, nothing prevented the workman to summon the Conductor to examine on his behalf. Under the circumstances though the charge could have been said to be proved whether the original petitioner could have been granted some relief, if not reinstatement could have been considered by the Labour Court having regard to the fact that the workman had put in more than 15 years of service at the time of the accident. No doubt, the materials on record was looked into but nothing prevented the Labour Court to have modified the punishment into another punishment. 19. Alternatively, the wife of the petitioner, namely the second petitioner had stated that her husband could have been granted atleast paper reinstatement without monetary benefits so that they can get certain terminal benefits including pension, provident fund and gratuity. 20. Therefore, considering the overall circumstances of the case, this Court is of the opinion that the dismissal of the original petitioner was excessive and he should have been directed to be reinstated without any monetary benefits. In view of his death during the pendency of the writ petition, there can only be an order of paper re-instatement from the date of his dismissal till the date of his death viz., 24.01.2006. But for that period, he will not be entitled to get any monetary benefits and the period will only be treated as a notional service with due pay fitments in his pay in terms of revision of pay scales which must have occurred during the period. Treating it as a reinstatement up to the date of his death, the second respondent shall pay all the terminal benefits due to the workman including gratuity, provident fund along with the employer's contribution and also other terminal benefits including pension, if any, within a period of 12 weeks from the date of receipt of a copy of this order. 21. The Award of the Labour Court stands modified to the extent indicated above. The writ petition is partly allowed. However, there will be no order as to costs. 08.06.2010 Index: Yes/No Internet :Yes/No svki To 1.The Presiding Officer, Labour Court, Vellore. 2.The Management of Tamilnadu Transport Corporation Ltd (Division II) Rangapuram, Vellore. (Formerly known as Pattukottai Alagiri Transport Corporation Ltd.) K.CHANDRU,J. Svki Pre-Delivery order in W.P.No.8906 of 2001 08.06.2010

K.Desikamani (Deceased) vs The Presiding Officer on 8 June, 2010

Madras High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.37990 of 2010 BINDESHWARI YADAV . Versus STATE OF BIHAR. ----------- (ten thousand) with two sureties of the like amount each to the satisfaction of Chief Judicial DKS/ (Mridula Mishra, J.) 04/ 19.02.2011 As per the allegation in the FIR five years old son of the informant was dashed by the motor cycle of Lalan Yadav @ Subhash Yadav. A panchayati was held in which petitioner agreed to pay the expenses of treatment, when informant and others demanded the money, petitioner was alleged to have assaulted on the head of the informant with Farsa. FIR was registered for offence under Section 307 and other allied sections of the IPC, but later on 302 was added as the injured died. Considering the fact that in the spur of movement occurrence took place without any pre-meditation and that the petitioner is in custody since 15.2.2010, prayer for bail on 2 behalf of petitioner, namely, Bindeshwari Yadav is allowed. He is directed to be released on bail on furnishing bail bond of Rs.10,000/- Magistrate, Araria in connection with Bhargama P.S. Case No. 16 of 2010.

Bindeshwari Yadav vs State Of Bihar on 19 February, 2011

Patna High Court - Orders

Court No. - 18 Case :- WRIT - A No. - 47634 of 2010 Petitioner :- Kedar Nath Singh Respondent :- State Of U.P. And Others Petitioner Counsel :- Anand Swarup Srivastava Respondent Counsel :- C. S. C.,P. K. Bajpai Hon'ble V.K. Shukla,J. Learned standing counsel has accepted notice on behalf of respondent nos. 1,2 and 3. Sri P.K. Bajpai, Advocate has accepted notice on behalf of respondent nos. 4 and 5. Each one of the respondents is granted eight weeks' time for filing counter affidavit. Rejoinder affidavit may be filed within four weeks' thereafter. List thereafter. Order Date :- 11.8.2010 SR

Kedar Nath Singh vs State Of U.P. And Others on 11 August, 2010

Allahabad High Court

JUDGMENT Om Prakash, J. 1. This writ petition arises from the order dated 30.5.1986 passed by the Customs, Excise & Gold (Control) Appellate Tribunal, New Delhi. 2. The Petitioner filed an appeal before the aforesaid Tribunal against he order dated 6.3 1986 of the Additional Collector, Central Excise, Meerut (Annexure '1 'to the petition) imposing a penalty of Rs. 30,000/- on the petitioner under Rule 173Q of the Central Excise Rules, 1944 As the petitioner failed to deposit the duty in cash, the Tribunal directed the petitioner to deposit the same within 8 weeks. petitioner The contention of the petitioner, that a sum of Rs. 1,58,316 71 on account of the duty paid by them on input aluminium claimed to have been used in the manufacture of aluminium strips during the period September 1981 to April 1982 to the Assistant Collector, Meerut on 7.6.1982 refund-able from the Department and, therefore, the amount of duty to be paid with the appeal be adjusted was rejected. Aggrieved, the petitioner has filed this petition against the order dated 30.5.1986 (Annexure '2" to the petition) 3. Upon perusal of the impugned order, it appears that the Tribunal took the view that the issue of refund of the duty did not arise in the appeal filed before the Tribunal and, therefore, the appeal could be admitted only when the petitioner deposited the duty in cash. admitted 4. Counter-affidavit and rejoinder-affidavit have been exchanged and therefore, this petition is disposed of finally. exchanged and, 5. The reasoning given by the Tribunal that the question of refund of Rs. 1,58 316.71 was not involved in the appeal sought to be filed before it, was technically correct. But the proviso of Section 35F of the Central Excises and Salt Act 1944, obligates the Tribunal to consider the circumstances shown by the petitioner causing undue hardship to it and then take a decision as to whether the precedent condition of deposit could have been diluted or-dispensed with a together. The claim of the petitioner was that undue harship was caused to it because a far greater amount to the tune of Rs. 1,58,316.71 was due from the department as refund and that claim was not settled by the Department. This is how the petitioner contended that there was financial stringency and it was difficult to comply with the requirement of deposit. The tribunal ought to have considered this circumstance, shown by the petitioner. Looking at the circumstances, it would be proper if the Tribunal calls upon the petitioner to deposit only 50% of the amount demanded by the order dated 30.5.1986 (Annexure "2" to the petition) within six weeks from today. After the 50% amount is deposited within six weeks from today, the Tribunal will admit and dispose of the appeal according to law. 6. In the result, the petition is allowed in the light of the above observations and the order dated 30.5.1986 (Annexure "2" to the petition) is set aside.

Author: O Prakash

Mitter Sain Industries, Through ... vs Customs, Excise And Gold Control ... on 1 January, 1987

Allahabad High Court

ORDER K.S. Kumaran, J. (Chairperson) 1. Appellant-Union Bank of India (hereinafter referred to as 'the appellant-Bank') filed O.A. 371/98 against 6 defendants who are respondent Nos. 1 to 6 herein (hereinafter referred to as 'the defendant Nos. 1 to 6') for the recovery of Rs. 88,56,535.16 with interest thereon @ 17.34% per annum with quarterly rest's from the date of O.A. till the recovery of the amount. The learned Presiding Officer of the Debts Recovery Tribunal, Jaipur (hereinafter referred to as 'the DRT') by his final order dated 26th July, 2001 ordered that the appellant-Bank is entitled to recover this amount from defendant Nos. 1,4, 5 and 6 with interest @ 6% per annum from the date of filing the O.A. He held that defendant Nos. 2 and 3 are not responsible for this amount. Aggrieved, the appellant-Bank has approached this Tribunal with this appeal with a prayer for directing all the defendant Nos. 1 to 6 to pay the amount with interest @ 17.34% per annum with quarterly rests from the date of O.A. till realisation. The defendant Nos. 1 to 6 did not file any reply to this appeal. The learned Counsel for the defendant Nos. 2 and 3 stated that he will address arguments opposing the appeal. 2. I have heard the Counsel for both the sides, and perused the records. 3. The case of the appellant-Bank, as set out in the O.A., in brief is as follows: Initially defendant Nos. 2 and 3 were the Directors of the 1st defendant-Company, and the defendant Nos. 4 to 6 also became the Directors on 27th August, 1996. 1st defendant-Company approached the appellant-Bank for certain credit facilities. On 25th July, 1995, the loan documents were executed, and the defendant Nos. 2 and 3 gave personal guarantees for the repayment of the credit facilities advanced to the 1st defendant by executing letters of guarantee. The 1st defendant-Company also created a mortgage by depositing the title deeds in respect of the property mentioned in the O.A. Subsequently, on 27th August, 1996, the defendant Nos. 4 to 6 became Directors of the 1st defendant-Company and for the due payment of the amount, apart from executing the loan documents, they also gave their personal guarantee by executing the letter of guarantee in favour of the appellant-Bank. The 1st defendant-Company also agreed to pay minimum interest of 17.5% with quarterly rests. The 1st defendant-Company, which had availed the credit facilities, did not repay the amount in time. 4. That is why O.A. 371/98 was filed before the DRT. The defendants 2 and 3 filed written statement to the O.A. urging as follows: By resolution dated 27th August, 1996, the defendant Nos. 4 to 6 were appointed as Directors. There was a pre-condition that the defendant Nos. 4 to 6 would operate the Bank account, and no other Director would do so. Defendant Nos. 2 and 3 had no objection to the same. For this purpose, resolution-Exhibit 25 dated 27th August, 1996 was passed. The total project was placed before the appellant-Bank by defendant Nos. 4 to 6, and it was informed that the defendant Nos. 4 to 6 will soon become the owner of the Company. The defendant Nos. 4 to 6 also took the responsibility to repay the loan to the Bank, and instead of the personal guarantee and documents executed by the defendant Nos. 2 and 3, defendant Nos. 4 to 6 agreed to execute fresh documents. The appellant-Bank also agreed to the same, and informed defendant Nos. 4 to 6 to execute the documents and personal guarantees afresh. As per this proposal, defendant Nos. 2 and 3 would be released from their personal liability. The defendants 4 to 6 executed the documents Exhibits A-26 to A-36. The appellant-Bank informed the defendant Nos. 2 and 3 that the documents Exhibit A-5 to Exhibit A-23, which defendant Nos. 2 and 3 had earlier executed, have become null and void, and thus, they are free from liability. The documents executed by defendant Nos. 2 and 3, namely, Exhibits A-5 to A-23 were cancelled. Therefore, the appellant-Bank has no claim against defendant Nos. 2 and 3, and the appellant-Bank is estopped from claiming any amount from the defendant Nos. 2 and 3. The interest claimed is excessive and unlawful. The respondent-Bank has executed documents exonerating the personal liability of defendant Nos. 2 and 3, and fixing the liability with defendant Nos. 4 to 6. 5. Defendant Nos. 4 to 6 also filed a reply, among other things disputing their liability, urging that on or after 30th August, 1996, no loan was disbursed, and that the alleged documents executed by them, including the personal guarantee, are null and void. They have also urged that property has been mortgaged by the defendant-company, and security has been provided by defendant Nos. 1 to 3, which were more than the loan amount. These defendants have also urged that the interest claimed is excessive, and that interest and penal interest have been claimed contrary to the provisions of law. 6. As pointed out already, the learned Presiding Officer passed the final order against defendant Nos. 1 and 4 to 6 only. No liability was fastened on defendant Nos. 2 and 3, accepting the contention of defendant Nos. 2 and 3. The learned Presiding Officer referred to the resolution passed by the 1st defendant-Company namely, Exhibit 25, whereby only defendant Nos. 4 to 6 were authorised to operate the Bank account, and it was resolved that the Bank should be informed that the cheques, promissory notes and other orders drawn by defendant Nos. 2 and 3, the Directors of the Company, should not be honoured from that date. The learned Presiding Officer also observed that the defendant Nos. 4 to 6 executed the documents afresh and, therefore, defendant Nos. 2 and 3 are not responsible for the loans advanced to the 1st defendant-Company. He also held that on execution of the fresh documents on 30th August, 1996 there was novation of the contract, and the liability of the defendant Nos. 2 and 3 came to an end. He also observed that it has not been pleaded by the respondent-Bank that the guarantee given by defendant Nos. 4 to 6 is an additional guarantee. 7. Therefore, the question that arises for consideration in this appeal is whether by the reason of the fact that defendant Nos. 4 to 6 executed fresh documents, and letter of guarantee on 30th August, 1991 there has been a novation of the contract between the appellant-Company and defendant Nos. 1 and 4 to 6 and, therefore, defendant Nos. 2 and 3 are discharged from their liability to act as per the guarantee deeds executed by them. Another question that arises for consideration is whether appellant-Bank agreed that defendant Nos. 2 and 3 are discharged from their liability to pay the amount as per the guarantee deeds executed by them. The further question is whether such pleas are open to them in law. Yet another question that arises for consideration is whether the appellant is entitled to interest as claimed by it? 8. I will first take up the question of interest. The appellant-Bank claimed in the O.A. interest @ 17.34% per annum with quarterly rests from date of O.A. to date of recovery of the amount due. The learned Presiding Officer of the DRT has, in the impugned final order dated 26th July, 2001, granted simple interest @ 6% from date of O.A. till date of recovery. 9. The contention of the learned Counsel for the appellant-Bank is that the learned Presiding Officer of the DRT has not given any reasons for allowing simple interest, and that too, @ 6% per annum as against @ 17.34% per annum with quarterly rests claimed by the appellant-Bank except stating that since the property of the 1st defendant has been mortgaged with the appellant-Bank and considering the principle laid down by the Hon'ble Supreme Court in AIR 1998 Supreme Court 1101, N.M. Veerappa v. Canara Bank, he deems it fit to allow interest @ 6% from date of O.A. till realisation. 10. The learned Counsel for the appellant contends that this Tribunal in State Bank of India v. Jagdamba Medicos and Ors., I (2003) BC 53 (Appeal 173/2000) decided on 28th March, 2002 has held that the DRT has the independent power to grant pendente lite and future interest under Sub-section (20) of Section 19 the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (hereinafter referred to as 'the Act'), and is not bound to follow the provisions of the Order XXXIV Rule 11 or Section 34 of the Code of Civil Procedure. He also points out that this Tribunal has also held that the Tribunals under the Act have discretion in the matter of grant of pendente lite and future interest, but did not agree with the contention that it cannot be more than 6% per annum in the cases where the Banks have the properties mortgaged with them. He also points out that it has been held that even under the Code of Civil Procedure there is no upper limit of 6% per annum for granting interest on the amount decreed as principal sum and interest thereon. He also points out the decision in N.M. Veerappa's case has also been distinguished by this Tribunal. 11. The learned Counsel for the appellant-Bank points out that this Tribunal, after elaborately considering all the points raised before it, held that the DRT was not under any compulsion to grant pendente lite and future interest at a rate not more than 6% per annum, and, therefore, remanded the matter back to the Tribunal for reconsideration of this aspect, namely, the rate of pendente lite and future interest that could be awarded by the Tribunal. 12. A perusal of the order of this Tribunal in Jadgamba Medicos and Ors.' case supports the contention of the appellant-Bank. The DRT is not bound to grant interest @ 6% per annum only for the period from date of O.A. till realisation of the amount. The Tribunal has the discretion to award interest at such rate as it deems fit for the said period, based upon the facts and circumstances of the case, but he has got only to give reasons for doing so. 13. Therefore, in my view, the matter has to be remanded back to the DRT concerned with regard to the rate of pendente lite and future interest that can be granted. The learned Presiding Officer, after giving opportunity of hearing to all the parties, has to decide the pendente lite and future interest payable by the defendants at such rate as he deems fit by giving proper reasons. As far as defendant Nos. 2 and 3 are concerned, this is, of course, subject to the decision on the question of liability of the defendant Nos. 2 and 3 to pay any amount, inasmuch as defendant Nos. 2 and 3 claim that they are not liable to pay any amount to the appellant-Bank. 14. The next question to be considered is with regard to the liability of defendant Nos. 2 and 3 to pay any amount. The learned Counsel for the appellant-Bank contends that the documents and the guarantee deeds were taken from defendant Nos. 4 to 6 by way of additional security/guarantee and, therefore, defendant Nos. 2 and 3 are not absolved from their liability to pay the amount as per the personal guarantee given by them under the guarantee deeds dated 25th July, 1995 executed by them. The copies of the guarantee deeds executed by defendant Nos. 2 and 3 respectively have been filed with the appeal. The learned Counsel for the appellant-Bank points out that in each of these guarantee deeds, it has been specifically mentioned in Clause (2) that it is a continuing security until the receipt by Bank of a notice in writing about its discontinuance. He also points out Clauses (3) and (8) of the deed of guarantee. Clause (3) reads as follows: "This guarantee is additional and without prejudice to any securities or obligations which the Bank may now or hereafter have in respect of any indebtedness or liabilities hereby guaranteed and all rights and remedies in respect thereof are reserved." Clause (8) of the guarantee deed reads as follows: "I/we hereby consent to your making any variance that you may think fit in terms of your contract with the principals to your determining, enlarging or varying any credit to him/them to your making any composition with him/them or promising to give him/them time or not to sue him/them and to your parting with any security you may hold for the guarantee debt and accordingly I/we shall not be entitled to claim any of the rights conferred or studies (mistake for "sureties") by Sections 133,134,139 and 141 of the Contract Act." 15. He also contends that no new facilities were granted when defendant Nos. 4 to 6 executed the personal guarantee. The learned Counsel for the appellant-Bank also contends that there was no change in the terms and conditions of the contract, but the guarantee deed was taken from defendant Nos. 4 to 6 by way of additional guarantee. He also contends that the defendant Nos. 4 to 6 also have executed the guarantee deeds with similar details. He, therefore, contends that defendant Nos. 2 and 3 cannot claim to have been discharged from their liability. 16. But, the learned Counsel for the defendant Nos. 2 and 3 contends that apart from the deeds of guarantee, the defendant Nos. 4 to 6 also executed the other loan documents afresh. He also points out that by the resolution-Exhibit 25 passed by the 1st defendant-Company, only defendant Nos. 4 to 6 were authorised to operate the Bank account, and that it was resolved that the Bank should be informed not to honour any cheque or other order issued or any pronote executed by defendant Nos. 2 and 3. He contends that this will show that the defendant Nos. 2 and 3 have been discharged from their liability as per the guarantee deeds. 17. In this connection, the learned Counsel for the defendant Nos. 2 and 3 contends that it was agreed that the defendant Nos. 2 and 3 should be released from the liability, and defendant Nos. 4 to 6 would become the Directors, which fact was also brought to the notice of the appellant-Bank. He contends that there was otherwise no need for getting fresh document or fresh security for the defendant Nos. 4 to 6. The learned Counsel for the defendant Nos. 2 and 3 contends that the appellant-Bank and defendant Nos. 1 to 6 came to an understanding that defendant Nos. 2 and 3 should be released from their liability. He also contends that the guarantee deed executed by defendant Nos. 4 to 6 was not by way of additional security. The learned Counsel for the defendant Nos. 2 and 3 contends that in para 3 of the written statement filed to the O. A., it has been specifically mentioned that defendant Nos. 4 to 6 undertook the responsibility to repay the loan, and agreed that fresh guarantee deed will be executed by defendant Nos. 4 to 6 instead of personal guarantee and documents executed by defendant Nos. 2 and 3. He also points out that it has been specifically mentioned in this written statement that the appellant-Bank also agreed to the same, and told defendant Nos. 4 to 6 to execute the documents and personal guarantee, that the defendant Nos. 4 to 6 accordingly executed the documents and the guarantee, on which the appellant-Bank informed the defendant Nos. 2 and 3 that the documents executed by the defendant Nos. 2 and 3, namely, Exhibits A-5 to A-23 became null and void, and were cancelled. Pointing out these averments, the learned Counsel for the defendant Nos. 2 and 3 contends that no rejoinder was filed by the appellant-Bank denying these averments. He also contends that the evidence on behalf of the defendant Nos. 2 and 3 was adduced by way of affidavit, and the appellant-Bank did not even cross-examine the witness. Therefore, the learned Counsel for the defendant Nos. 2 and 3 contends that there has been a novation of the contract, and the defendant Nos. 2 and 3 are not bound to perform the earlier contract in view of Section 62 of the Contract Act. 18. In this connection, the learned Counsel for the defendant Nos. 2 and 3 relies upon a decision of the Debts Recovery Appellate Tribunal, Mumbai (for short 'DRAT, Mumbai') in Globcal Granimarmo Ltd. v. State Bank of Saurashtra, I (2000) BC 57=2001 R.D.C. 247. But, that was a case in which the Bank had sanctioned cash credit limit to the first defendant, of which the 2nd defendant was the Managing Director while defendant Nos. 2 and 5 were Directors. The limit was subsequently enhanced and additional facilities of Foreign Letter of Credit were also sanctioned by the Bank. The 4th defendant had contended that he had already revoked his guarantee and the Bank had obtained fresh guarantee deed and, therefore, he was discharged. In these circumstances, the DRAT, Mumbai held that the 4th defendant had already informed the Bank that he was retiring, and in his place the defendant No. 5 was appointed as Director. It also noticed that the resolutions passed to that effect were forwarded to the Bank, on which the Bank had acted and obtained fresh documents including balance confirmation letter fastening the liability of the 5th defendant. The DRAT, Mumbai, therefore, upheld the finding that the 4th defendant was absolved by the Bank itself. In the case on our hand the defendant Nos. 2 and 3 had not revoked the guarantee nor had they retired from the directorship. No fresh or enhanced facilities were given by the Bank when the defendant Nos. 4 to 6 executed the documents. Therefore, this decision will not be of any help to the defendant Nos. 2 and 3. 19. Lata Construction v. Rameshchandra Ramniklal Shah, AIR 2000 SC 380, was a case where the respondents (before the Hon'ble Supreme Court) urging that the appellants (before the Hon'ble Supreme Court) had entered into an agreement dated 27th January, 1987 to provide them a flat but had not done so, had approached the National Consumer Disputes Redressal Commission (for short 'National Commission'). The appellants (before the Hon'ble Supreme Court) had had entered into a fresh agreement with the respondents on 23rd February, 1991, and had agreed to pay the respondents a particular amount in three instalments. 20. The appellants had not honoured the commitments under both the agreements and the respondents approached the National Commission which decreed the claim of the respondents for Rs. 9,51,000/- with interest, against which appeal was filed before the Hon'ble Supreme Court. 21. The Hon'ble Supreme Court found that the agreement dated 23rd February, 1991 showed that the rights under agreement dated 27th January, 1987 would remain unaffected. It was contended that the agreement dated 27th January, 1987 had been substituted by a fresh agreement dated 23rd February, 1991 for enforcing which the Civil Court must be approached. This plea was rejected by the National Commission. On Appeal, the Hon'ble Supreme Court held as follows: "One of the essential requirements of Novation', as contemplated by Section 62 is that there should be complete substitution of a new contract in place of the old. It is in that situation that the original contract need not be performed. Substitution of a new contract in place of the old contract which would have the effect of rescinding or completely altering the terms of the original contract, has to be by agreement between the parties. A substituted contract should rescind or alter or extinguish the previous contract. But if the terms of the two contracts are inconsistent and they cannot stand together, the subsequent contract cannot be said to be in substitution of the earlier contract." 22. In the instant case, the rights under the original contract were not given up as it was specifically provided in the subsequent contract that the rights under the old contract shall stand extinguished only on payment of the entire amount of Rs. 9,51,000/-. Since the amount was not paid by the appellants as stipulated by the subsequent contract, the rights under the original contract were still available to the respondent and he could legally claim enforcement of those rights. Obviously, under the original contract, the appellants were under an obligation to provide a flat to the respondents. This right would come to an end only when the appellants had, in pursuance of the subsequent contract, paid the entire amount of Rs. 9,51,000/- to the respondents. Since they had not done so, the respondents could legally invoke the provisions of the earlier contract and claim before the Commission that there was "deficiency in service" on the part of the appellants." 23. This decision also will not be of help to defendant Nos. 2 and 3 inasmuch as there is nothing to show that the appellant-Bank had entered into a completely new contract with defendant Nos. 1 and 4 to 6 in place of the original agreement with defendant Nos. 1 to 3. The defendant Nos. 4 to 6 had become Directors of the 1st defendant-Company by the resolution dated 27th August, 1996. They had also executed certain documents and guarantee deeds but no fresh facilities were granted. There is also no change in the terms and conditions except that the defendant Nos. 4 to 6 have also undertaken the liability. In these circumstances, it cannot be stated that there has been a substitution of the agreement between appellant-Bank on one hand and the defendant Nos. 1 to 3 on the other with a fresh or new agreement between appellant-Bank on one hand and defendant Nos. 1 and 4 to 6 on the other. 24. The decision in Indian Bank, Madras v. S. Krishnaswamy, AIR 1990 Madras 115, related to a case where the appellant-Bank had given certain facilities to Bharthy Mills Ltd. The plaintiffs in the suit stood sureties, and even had deposited the title deeds etc. In November 1965 the principal debtor-Bharthy Mills Ltd. was notified under the Industries (Development and Regulation) Act, 1951 by the Government of India and the Authorised Controller took charge of the Company on 5th May, 1966. The appellant-Bank had entered into a fresh agreement with the principal debtor on 7th January, 1967 and 23rd January, 1967 by which all outstanding accounts were adjusted and converted into a term loan for Rs. 35 lacs. By its negligence the Bank had lost goods worth Rs. 19 1/2 lacs, in their custody. It is in these circumstances, the Hon'ble Madras High Court held that the sureties, who had even no knowledge of this fresh agreement, were discharged from their liabilities. 25. In the present case on hand, the defendant Nos. 2 and 3 still remain to be the directors, through, by the resolution dated 27th August, 1996 (Exhibit 25) it was resolved that the defendant Nos. 4 to 6 have been authorised to operate the Bank account, and that the Bank should be informed not to honour any cheque or other order drawn or promissory notes executed by the defendant Nos. 2 and 3, the other directors of the Company. It is not as if the defendant Nos. 2 and 3 ceased to be the Directors or that the 1st defendant-Company has been taken over by the defendants 4 to 6. Therefore, when the appellant-Bank had taken fresh documents and guarantee deeds from defendants 4 to 6 without any change in the terms and conditions or without there being any fresh facility extended to the 1st defendant-Company, it cannot be stated that there has been any complete novation or variation of the earlier contract with defendant Nos. 1 to 3. Therefore, on the execution of these documents by defendant Nos. 4 to 6, it cannot be stated that the defendant Nos. 2 and 3 stood automatically discharged. If the defendant Nos. 1 to 6 among themselves had even come to an agreement to relieve defendant Nos. 2 and 3 of their liability, it does not mean that the Bank has also accepted the same. Taking certain documents and guarantee deeds executed from defendant Nos. 4 to 6 does not mean that there has been a change, variation or novation of the contract with defendant Nos. 1 to 3. This is especially so, when the guarantee deeds executed by defendant Nos. 4 to 6 say that they are additional guarantees. 26. But, the guarantee deeds executed by defendant Nos. 2 and 3 specifically state that they will continue to be in force till a notice in writing is given by the defendant Nos. 2 and 3 for its discontinuance. This apart, the defendant Nos. 2 and 3 have, in the reply filed to the O. A. (before the DRT), specifically alleged that the appellant-Bank has executed documents removing the personal liability of defendant Nos. 2 and 3, and fastening the liability on defendant Nos. 4,5 and 6. If the Bank had agreed to absolve the defendant Nos. 2 and 3 and had fastened the liability on defendant Nos. 4 to 6 by executing the documents, as alleged, I am of the view that the defendant Nos. 2 and 3 should be given an opportunity to place those documents and establish their case in this behalf. Therefore, in my view, the matter has to be remanded back to the DRT for further inquiry in this regard also and fresh disposal. 27. Of course, the learned Counsel for the appellant-Bank, on the other hand, contends that even according to the defendant Nos. 2 and 3 this subsequent agreement pleaded by the defendant Nos. 2 and 3 is only an oral agreement, which cannot be pleaded in view of the provisions of Sections 91 and 92 of the Indian Evidence Act. The learned Counsel for the appellant-Bank contends that there cannot be any oral evidence of an oral agreement to vary the terms of the written contract in view of these provisions of the Indian Evidence Act and, therefore, the pleadings found in the written statement of defendant Nos. 2 and 3 in this regard cannot be entertained at all; and therefore, the contention that no rejoinder was filed, or that there was no cross-examination on this point, cannot be urged in support of a plea, which itself is not admissible. 28. If there is no written agreement between Bank and the defendant Nos. 2 and 3 to absolve the defendant Nos. 2 and 3 from the liability as contended, then the further question will be whether the defendant Nos. 2 and 3 will be entitled, in law, to put forward the plea that there is such an oral agreement to that effect, and whether there is acceptable evidence for the same. It has also to be considered and decided by the DRT and also as to whether the fact that no rejoinder was filed and there was no cross-examination of the witness(es) examined on the side of the defendant Nos. 2 and 3 by the appellant-Bank can be put forward by the defendant Nos. 2 and 3, if they are not entitled to urge in law that there was such an oral agreement to absolve the defendant Nos. 2 and 3 from the liability, i.e. to plead an oral agreement as against a written agreement. 29. Therefore, taking into consideration all these aspects, I am of the view that the impugned order of the DRT dated 26th July, 2001, insofar as it has not granted the final order as against defendants 2 and 3; and has granted pendente lite and future interest only @ 6% per annum, has to be set aside, and the matter has to be remanded back to the concerned DRT for further inquiry and fresh disposal with regard to these matters after giving all the parties opportunity to put forward their case, and even to lead further evidence. 30. Accordingly, the appeal is allowed setting aside the impugned final order dated 26th July, 2001 insofar as (1) it has not granted final order (Recovery Certificate) against the defendant Nos. 2 and 3, and (2) it has granted pendente lite and future interest only @6% per annum. The matter is remanded back to the DRT concerned with regard to these matters. 31. The learned Presiding Officer of the DRT will take the O.A. back to his file with regard to these matters, give opportunity to both the sides to put forward their case, including the opportunity to lead further evidence, and then dispose of the O.A. with regard to these matters in accordance with law and in the light of the observations contained in this order. For this purpose, the parties are directed to appear before the DRT concerned on 22nd March, 2004 for taking further directions in this matter without awaiting a notice from the DRT. Copy of this order be given to the parties and be forwarded to the concerned DRT.

Union Bank Of India vs Garden Ceramics Pvt. Ltd. And Ors. on 14 January, 2004

Debt Recovery Appellate Tribunal - Delhi

20. The scope of Section 203 and 204 of the Code has been considered by the Hon'ble Supreme Court inter alia in Vadilal Panchel Vs. Dattatrya Dulaji, Chandra Deo Singh Vs. Prokash Chandra Bose, and Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi and others . 21. After referring to the aforesaid earlier two decisions, in Nagawwa Vs. Veeranna (supra) it was held that : "Thus it may be safely held that in the following cases an order of the Magistrate issuing process against the accused can be quashed or set aside : ORDER J.B. Goel, J. 1. This petition under Section 482 of the Code of Criminal Procedure (for short the 'Code') and Article 227 of the Constitution of India seeks for setting aside of summoning order dated 17.2.1996 passed by learned Metropolitan Magistrate, Karkardooma and for quashing of FIR No. 72/95 registered at P.S. Preet Vihar, Delhi under Sections 307/323/34 IPC. 2. Briefly the facts are that the complainant one Suresh Chand had lodged a report at P.S. Preet Vihar, Delhi at about 1100 p.m. on 17/11/94 where this report was registered as DD No. 20A. He has alleged that he along with his two co-villagers Satbir and Rakesh travelled in a bus after visiting the then Agriculture Minister, and alighted from the bus at Shakarpur Chowk and while going to ALT Ghaziabad Bus stop near Coffee Home to catch a bus to Ghaziabad for going to river Ganges, a girl named Aarti Hejmadi hit him from behind with an iron rod, two other persons accompanying her also gave beating to him with iron rods. When his two companions came to resuce him, she had fired at him but the bullet passed over his head. Due to fear of shooting, his two companions went away. It was also alleged that at that time Aarti had told him that "he had slapped me in the bus, to take revenge she would kill him and had also abused him. Some motorists came there and then the said girl went away on a motorcycle along with her two accomplices. 3. After registration of the DD a copy of it was entrusted to ASI Sompal Singh who made inquiries and recorded statements of several persons from the neighbourhood area, but he did not find any truth or substance in the report and case was not registered. However, it appears that the complainant pursued the matter further with higher police officers and then on 6.4.1995 a case FIR No. 72/95 under Sections 307/323/34 IPC was registered. 4. During investigation some more statements from neighbouring area and also of the alleged two companions of the complainant were recorded. The petitioner had also given a written reply dated 28.5.1995 that she was on duty at Safdarjung Hospital at the relevant time supported by the certificate from the doctor Incharge of her Department. The prior incident in which complainant had misbehaved with the petitioner in a bus and in which he was arrested was also taken notice of and a report was submitted to the Magistrate suggesting that there was no truth in the complaint, it was false and bogus and recommending to close the matter. Notice of the report was given to the petitioner and after hearing the Prosecutor and the complainant, the learned M.M. did not agree with the report made by the police and took ognizance for offences under Sections 307/323/506/34 IPC vide his order dated 17.2.1996 and summoned the petitioner for 16.3.1996. 5. The petitioner has filed the present petition for quashing the aforesaid proceedings, being misconceived and mala fide. The proceedings before the trial court have been stayed by this Court. 6. The complainant was imp leaded as respondent No. 2 in these proceedings. Notice was served upon him but he did not put in appearance. 7. I have heard Shri Mohit Mathur, learned counsel for the petitioner and Ms. Seema Gulati for the State. 8. Learned counsel for the petitioner has contended that the police had investigated the case, collected the relevant material and on the basis of such material had recommended that the complaint was false and no case is made out but the learned M.M. has acted illegally and with material irregularity in taking cognizance and summoning the petitioner. He has relied on the material collected by the IO, the background to the case and also certain case law. Whereas learned counsel for the State has contended that the petitioner should have approached the Court concerned before coming to this Court and if she feels that no case is made out she could urge the same before the Trial court instead of coming to this Court invoking extraordinary jurisdiction under Section 482 of the Code of this Court. She has relied on K.M. Mathew & Ors. Vs. State of Kerala . 9. The present is not the only incident which had taken place between the parties. It has a previous history as noticed hereinafter. 10. Report lodged by the complainant at 11.00 p.m. on 17.11.1994 on which DD No. 20A was recorded (Annexure-B is its English translation filed with the Petition) reads as under :- "At 11.00 p.m. registered and the person mentioned in column No. 2 has made his statement that on 9.6.93 I was travelling in a D.T.C. Bus. In the crowded bus Arti Hejmadi d/o P. Hejmadi who was claiming herself to be from Lady Hardinge Medical College. She was standing in the crowded bus and was holding the overhead rod and she said that you, (Suresh Chand) had put your hand on her hand by which she was holding the rod. At this she punched her elbow into my stomach on which I told that girl to be a misbehaved person. She slapped me, on which I also slapped her. She got the case reported at the Police Station Parliament Street under Section 506 IPC and I was taken into custody. I was acquitted from the case by the Magistrate at the Patiala House Courts. On 19.3.94 that girl had fired on me at the Shahid Bhagat Singh Marg for which I had lodged an FIR at P.S. Mandir Marg, in that case the police officials did not do anything and instead hushed up the case. Today I along with two farmers of my village namely Satbir s/o Jouhari and Rakesh s/o Shiv Charan went to meet Agricultural Minister Sh. Balram Jakhar in relation to the paved passages for the fields of the farmers. Later on return I was going along with these two persons for a dip at the Ganges. After alighting from the bus at Shakarpur Chowk, I was going towards Coffee Home ALT Bus stop to catch a bus to go to ALT Ghaziabad. A girl hit me by the iron rod on my back, and two other persons who were accompanying this girl also beat me with iron rod. When the two persons who were accompanying me tried to rescue me, Arti Hejmadi fired at me from behind, the bullet passed over my head. Out of fear from the shooting, my companions left the spot in order to save their lives. After that Arti told me "You had slapped me in the bus, I will take my revenge by taking your life" and further added "I will kill you today", and abused me. After that when 2-4 motorists came towards us, this girl left the spot on the motorcycle alongwith the two boys. People told me that they have dialled 100. Even after waiting for a long time when the police did not reach, I have come to the police station to lodge the report. Heard the statement which is correct." 11. Time of occurrence is not specifically mentioned in this report but in his subsequent statement made under Section 161 Cr.P.C., the time of occurrence given is 8.00 p.m. 12. SI Sompal Singh had made inquiries in the matter. He has recorded the statements of several persons from neighbouring area on 18.11.1994 and 22.11.1994 who had stated that no such incident had at all taken place at the aforesaid time and place. 13. The complainant was also medically examined at SDM Hospital, Shahdara on 17.11.1994 vide MLC No. 4830/94 (C-72043) and the Doctor had noticed the following injuries :.ls1 "1 Contusion injury (L) Middle of leg 2. Lacerated Injury over 3. C/o loosening of cipper (L) med. incisor tooth. However, clinically no signs of bleeding locally. No fracture clinically. 4. Contusion over (R) shoulder joint. 5. Contusion injury over (R) wrist. Clinically no Bony Injuries." The injuries were opined to be simple. 14. If there was pre-planned attack with iron rods by three persons and firearm was actually used, the nature and extent of injuries perhaps would have been more serious. 15. These injuries are not such which could not have been self inflicted or manipulated to create false evidence. 16. After the FIR was registered on 6.4.1995 statements of two companions of the complainant Satbir and Rakesh were recorded who have not supported the complainant in material respects and have made statements at variance to his statement. 17. Statement of some more persons from the neighbouring areas were also recorded who have also denied that any such occurrence had taken place. 18. Before going into the merit of the controversy involved, the legal position about the scope of power of the Magistrate to take cognizance of the complaint and to summon the accused and also the scope of the supervisory jurisdiction of the High Court under Section 482 of the Code and under Article 226/227 of the Constitution will be relevant. 19. The learned Magistrate has taken cognizance under Section 204 of the Code. (1) where the allegations made in the complaint or the statement of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused; (2) where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused; (3) where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and (4) where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like. The cases mentioned by us are purely illustrative and provide sufficient guidelines to indicate contingencies where the High court can quash proceedings." 22. The scope of jurisdiction of the High court was considered in Madhavrao Jiwaji Rao Scindia and another Vs. Sambhajirao Chandrojirao Angre and others it has been stated as under :- "The legal position is well-settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the Court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the Court cannot be utilised for any oblique purpose and where in the opinion of the Court chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the Court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage." 23. Again in State of Haryana and Others Vs. Ch. Bhajan Lal and others , the scope of power of the High Court for quashing the FIR and the proceedings has been considered and inter alia, in categories No. 3, 5 and 7 it has been held as under : 24. The scope of power under Section 203/204 of the Code is similar to that of under Sections 227/228 of the Code. In the case of Satish Mehra Vs. Delhi Admn. & Anr. , while considering the scope of Section 227, it has been observed as under (para 14) :- "The object of providing such an opportunity as is envisaged in Section 227 of the Code is to enable the court to decide whether it is necessary to proceed to conduct the trial. If the case ends there it gains a lot of time of the court and saves much human efforts and cost. If the materials produced by the accused even at that early stage would clinch the issue, why should the court shut it out saying that such documents need be produced only after wasting a lot more time in the name of trial proceedings. Hence, we are of the view that Sessions Judge would be within his powers to consider even materials which the accused may produce at the stage contemplated in Section 227 of the Code." 25. The matter is to be seen in the light of this legal position. The petitioner had alleged that at the time of occurrence his two co-villagers Satbir and Rakesh were with him. Their statements have been recorded by the police under Section 161 of the Code. 26. Rakesh in his statement recorded on 20.4.95 under Section 161 Cr.P.C. has stated, so far is relevant, as under (English translation): "About 4-5 months back I alongwith Suresh and Satbir who are my co-villagers had gone to meet the Agriculture Minister, Shri Balram Jakhar but the Minister did not meet and his P.A. has met at about 3.00 p.m. and after meeting him we got a bus at about 3.05 p.m. and got down from the bus at about 3.15 p.m. at Shakarpur Chowk and proceeded to catch a bus for going to Ghaziabad and at about 3.20 p.m. when we reached near Coffee Home two persons and a girl came on a motor cycle. All the three were armed with Iron rods and all the three gave blows with series on Suresh Chand. I and Satbir tried to rescue him but the said girl fired a shot and I and Satbir ran away and I do not know what happened thereafter and I alongwith Satbir went to Ghaziabad and then reached Anup Shahr at about 8.00 p.m. and Suresh had met us 15/20 days thereafter in the village." 27. Satbir in his statement recorded on 18.4.95 has stated as follows, so far is relevant (English translation) :- "I am agriculturist and in November 1994 I alongwith Suresh Chand Sharma and another person whose name he did not know had gone to meet the Agriculture Minister and took a DTC bus in which we reached at about 5.00 p.m. at Shakarpur Chowk. We had gone some distance when two boys alongwith a girl came on a motorcycle. One of the two boys got down from his motorcycle and started giving beatings to Suresh Chand with saria when I and my companion tried to rescue him the other boy fired a shot and on this shooting we separated from Suresh who had fallen down. The two boys alongwith that girl went away. We brought Suresh to Jagatpuri, Shahdara at the house of one Balbir Dahiya in a bus upto Shahdara and then in a cycle rickshaw. Suresh was left there and I and Rakesh went to Anup Shahr to take a dip in the Ganga and reached there at about 9.00 p.m. The girl who was accompanying the aforesaid two boys did nothing nor she had uttered any words. I could not recognise that girl but I can identify the two boys". 28. Both these witnesses have not supported the complainant on material aspects including the time of occurrence. According to Rakesh they had got down from the bus at Shakarpur Chowk at about 3.15 p.m. and obviously the occurrence according to him would have taken place at about that time. Satbir on the other hand had stated that they had reached there at about 5.00 p.m. In the complaint the time of occurrence is not mentioned but in subsequent statement under Section 161 of the Code of the complainant, the time of occurrence stated is 8.00 p.m. On his report DD No. 20A was recorded at 11.00 p.m. There is great variance in these three statements about the time of occurrence. Rakesh in his statement has stated that the girl and her two companions were armed with iron rods (saria) and all the three had given saria blows to Suresh Sharma and the said girl had fired a shot at Suresh. 29. Satbir has stated that one of the two boys had given saria blows to Suresh Sharma while the other boy had fired. He does not assign any overt act to the petitioner and does not support the other two. He has further stated that he, Rakesh and Suresh had gone to the house of one Balbir in Jagatpuri, Shahdara and left Suresh there. Both Suresh and Rakesh do not corroborate him that they had gone to the house of Balbir Dahiya in Jagatpuri. These are not minor variations but major contradictions which make their statements untruthful and untrustworthy. They are independent persons. This cast serious doubt on the happening of the occurrence. Public witnesses examined from the neighbouring areas of the place of occurrence have denied that any such incident had taken place. 30. The petitioner had given a written statement dated 28.5.1995 wherein she inter alia stated that she was on 24 hours duty at Safdarjung Hospital from 9.00 a.m. on 17.11.1994 to 9.00 a.m. on 18.11.1994. 31. During investigation a certificate to this effect has been given by Dr. Promila Paul, Paediatrician of Safdarjung Hospital certifying that Dr. Arti Hejmadi was Ist year Junior Resident (P.G.) and was on 24 hours duty for this period. 32. Complainant Suresh Chand in his statement under Section 161 dated 11.4.1995 has admitted that at the complaint of Arti Hejmadi, a FIR No. 206/93 under Section 509 was registered at P.S. Parliament Street regarding his alleged behaviour while both were travelling in a bus and in that case he remained in jail for over two months, at that time he had written letters to Arti Hejmadi from jail requesting her to withdraw her complaint and to get him released to enable him to attend the marriage of his sister which she did not agree. He had earlier also lodged a complaint against her on 19.3.94 at P.S. Mandir Marg against her about shooting by her. That complaint was also found baseless and the matter was dropped. These circumstances have been noticed by learned Metropolitan Magistrate in the summoning order dated 17.2.1996. The learned M.M. has given the following reasons while taking cognizance: 33. The learned Magistrate has not only misread the statements of the complainant and his two witnesses, he has completely ignored the material contradictions. 34. As noticed above the contradictions in the statements of the complainant, Satbir and Rakesh are not insignificant or minor but material and glaring which show that their testimony is wholly unreliable and unworthy of credit which make the story as highly improbable. Their statements clearly show that they are false and procured witnesses. 35. Another circumstance of great importance is that there is nothing on record to show that the petitioner had prior knowledge of the itinerary of the complainant that they had gone to meet the Agriculture Minister, he would catch a bus from there and go to a particular place and at a particular time. He was not a resident in the area of Shakarpur. The petitioner was also not a resident of that area nor she had her place of work near about Krishi Bhawan or near the place of occurrence. She is a doctor and no sane person would have acted in the manner as she is alleged to have been done by the petitioner. And if the petitioner so intended she had full opportunity and in that case there would have been serious consequences if she was having and had used a firearm. The place of occurrence is not a secluded place but a very crowded highway from where it would have been very difficult, if not impossible, to escape with the PCR always on duty. These circumstances clearly show that the allegations made fall in categories No. 5 and 7 noticed in the case of Ch. Bhajan Lal (supra) and also in the categories (1) and (2) noticed in the case of Nagawwa (supra). In these facts and circumstances the discretion exercised by the learned M.M. in summoning the petitioner is capricious and arbitrary and without applying his judicious mind to the facts, circumstances and the material available on record and the special features of the case as brought before him. The circumstances appearing on the record show that the complaint is wholly misconceived, for oblique motives, maliciously instituted with ulterior motive for wrecking the vengeance on the petitioner and with a view to spite her due to personal grudge and mala fides and the same ought not to have been allowed to perpetuate the injustice on the petitioner. 36. The chances of conviction on this material are too bleak. It is not expedient and in the interest of justice to permit the prosecution to continue. It is eminently a gross abuse of the process of the court and it is expedient and in the interest of justice that these proceedings should be quashed. 37. This petition is accordingly allowed. The impugned order dated 17.2.1996 is set aside and the FIR No. 72/95 registered at P.S. Preet Vihar, Delhi under Sections 307/323/34 IPC and the proceedings arising therefrom against the petitioner are hereby quashed. 38. This petition is disposed of.

Author: J Goel

Aarti Hejmadi vs State & Anr. on 18 September, 1998

Delhi High Court

Gujarat High Court Case Information System Print COMP/195/2007 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD COMPANY PETITION No. 195 of 2007 ====================================== FEDERAL EXPRESS CORPORATION (FEDEX) - Petitioner Versus ROLWELL FORGE LIMITED - Respondent ====================================== Appearance : MR SHALIN N MEHTA for Petitioner. MR HRIDAY BUCH for Respondent. ====================================== CORAM : HONOURABLE MR.JUSTICE K.A.PUJ Date : 24/10/2008 ORAL ORDER BELOW NOTE FOR SPEAKING TO MINUTE The Registry is directed to hand over the cheque issued in favour of the petitioner to the learned advocate Mr. Shalin Mehta for the petitioner. The Registry to hand over the cheque today itself. With this direction, this note for speaking to minutes is accordingly disposed of. Sd/- [K. A. PUJ, J.] Savariya     Top

Author: K.A.Puj,&Nbsp;

Federal vs Rolwell on 24 October, 2008

Gujarat High Court

JUDGMENT Arun Kumar Bhattachaiya, J. 1. The hearing stems from an application under Section 482 Cr. PC filed by the petitioner praying for setting aside the order dated 15.01.2002 passed by the learned Sessions Judge, 8th Bench, City Sessions Court, Calcutta in Criminal Motion No. 112 of 2001 affirming the order dated 07.04.2001 passed by the learned Metropolitan Magistrate, 17th Court, Calcutta in complaint case No. C-2607/99 under Sections 138/141 of the Negotiable Instruments Act, 1881. 2. The circumstances leading to the above application are that Mukesh Sharma, representative of O.P. No. 2 Company initiated the aforesaid complaint case being C-2607/99 inter alia alleging that on the presentation of the cheque dated 08.07.99 for Rs. 1.19.903/- drawn on ANZ Grindlays Bank, Shakespear Sarani Branch, Calcutta, its banker UTI Bank Ltd.. Calcutta it was returned unpaid with a remark "payment stopped by the drawer" on 12.07.99. Despite receipt of the demand notice issued on 14.07.99 the company M/s. Corporate Couriers Ltd. failed to make payment of the amount of the cheque. 3. The petitioner after his appearance before the Court filed a petition praying for discharge on the ground that his resignation from the post of Chairman and Managing Director of M/s. Corporate Couriers & Cargo Ltd. on 10.01.99 was accepted in the meeting of the Board of Directors on 01.03.99 and he had no control over the affairs of bank transaction which was rejected by the learned Magistrate, and the revision against the said order was dismissed. 4. Being aggrieved by the said order of dismissal, the petitioner has come up before this Court. 5. As none appeared for the O.P., the matter was heard ex parte, 6. Mr. Mitra. learned Counsel for the petitioner, relying upon the cases of SMS Pharmacauticals Ltd. v. Neeta Bhalla reported in 2005 SCC (Cr) 1975 assailed the impugned order mainly on two fold grounds viz. (1) absence of specific averment in the complaint that at the time the offence was committed the petitioner was in charge of and was responsible to the company, as required under Section 141 of the N.I. Act and (2) as the petitioner was no longer associated in the company on account of his resignation on 10.01.99 which was accepted in the Board's meeting on 01.03.99 he cannot be saddled with the criminal liability. 7. Quashing of proceeding to prevent abuse of the process of the Court or otherwise to secure the ends of justice may be done where; (1) it appears that there is a legal bar against the institution or continuance of criminal proceeding in respect of the offence alleged e.g. absence of requisite sanction, or (2) the allegations in the FIR or the complaint even if they are taken at their face value and accepted in their entirety do not constitute the offence alleged, or (3) the allegations made against the accused person do constitute an offence alleged but there is either no legal evidence adduced in support of the case or the evidence adduced clearly or manifestly fails to prove the charge. That apart, the power to quash a criminal proceeding by this Court can be exercised very sparingly and with circumspection and that too in the rarest of the rare cases. In this connection, reference may be made to the cases of R.P. Kapur v. State of Punjab , State of Haryana v. Bhajan Lal & M. Narayandas v. State of Karnataka reported in 2004 SCC (Cr) 118. 8. Sub-section (1) of Section 141 of the Act which deals with "Offences by Companies" provides that if the person committing an offence under Section 138 is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. 9. As per first Proviso to the said Sub-section (1), nothing shall render any person liable to punishment if he proves that the offence was committed without his knowledge, or that he had exercised all due diligence to prevent the commission of such offence. 10. In the case on hand, as per averment made in paragraph 4 of the complaint, accused No. 1 is a company within the meaning of the Companies Act, 1956 and accused No. 2 at the material time was in charge of and responsible to accused No. 1 for conduct of day to day business. 11. The main part of Section 138 of the Act creates an offence when a cheque is returned by the bank unpaid either because of the amount of money standing to the credit of the account of the drawer is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from the account of the drawer. 12. The expression "at the material time" as used in the above paragraph is significant and it should not be construed so narrowly so as to exclude O.P. No. 2 of his being in charge of and responsible to the company at the time of commission of the offence. In this connection, paragraph 10 of the case of Neeta Bhalla (supra) may be referred to where it has been observed that, only persons who can be said to be connected with the commission of a crime at the relevant time have been subjected to action. So. the said contention of Mr. Mitra is not sustainable, 13. As regards the second contention above, undisputedly accused No. 2 was the signatory of the cheque dated 08.07.99 which prima facie negatives the story of resignation by accused No. 2 on 10.01.99 and acceptance of the same in the Board's meeting on 01.03.99. Nevertheless, as observed in the case of Neeta Bhalla (supra), conversely a person not holding any office or designation in a company may be liable if he satisfies the main requirement of being in charge of and responsible for the conduct of the business of a company at the relevant time. That apart, the above contention being the defence case is a matter for trial and cannot be expected to be decided here. 14. With the background discussion, the present application being devoid of any merit be dismissed ex parte. 15. Interim order of stay passed on 22.04.2002 stands vacated. Let a copy of this order be sent down at once to the learned Court below. Xerox certified copy of the order, if applied for, be supplied to the petitioner as expeditiously as possible.

Author: A K Bhattachaiya

Raghavan Sarathy vs State Of West Bengal And Anr. on 22 February, 2006

Calcutta High Court

IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 11/07/2006 Coram The Hon'ble Mr. Justice P.SATHASIVAM and The Hon'ble Mr. Justice V.DHANAPALAN W.P.M.P.No.16312 of 2006 W.P.M.P.No.16366 of 2006 W.P.M.P.No.16465 of 2006 to W.P.M.P.No.16469 of 2006 W.P.M.P.No.16499 of 2006 W.P.M.P.No.16508 of 2006 W.P.M.P.No.16571 of 2006 to W.P.M.P.No.16573 of 2006 W.P.M.P.No.16580 of 2006 to W.P.M.P.No.16617 of 2006 W.P.M.P.No.16638 of 2006 to W.P.M.P.No.16640 of 2006 W.P.M.P.No.16641 of 2006 W.P.M.P.No.16671 of 2006 W.P.M.P.No.16684 of 2006 W.P.M.P.No.16689 of 2006 to W.P.M.P.No.16691 of 2006 and W.P.M.P.No.16693 of 2006 to W.P.M.P.No.16696 of 2006 in W.P.No.5494 of 1998 and W.P.No.30153 of 2003 !For Petitioner : ^For Respondent : :ORDER (Common Order of the Court was made by P.SATHASIVAM,J.,) By order dated 15.2.2005 in W.P.No.5494 of 1998 etc., batch, this Court directed the Tanneries and Dying Units located in and around Erode District to install RO system and the same should be functional and for that, this Court had granted time till 31.8.2005. By the subsequent orders, on the basis of their request, time was periodically extended and finally upto 30.6.2006. 2. Now the Tanneries and Dying Units filed various applications praying for extension of time upto the period of nine months in some cases and six/three months in other cases. 3. Mr.G. Masilamani, learned senior counsel appearing for some of the Tannery Units prayed for extension of time till 31.3.2007 to implement the "Common Tertiary Treatment System with Reverse Osmosis for Water Recovery and Evaporation System for R.O. Rejects". Mr.R. Krishnamurthy, learned senior counsel appearing for some of the Units, contended that they provided RO system and the said system are functional. However, according to the report submitted by the Pollution Control Board, RMS is inadequate. However, according to him, inasmuch as the same was provided with the assistance and advice of CLRI, in the absence of any specific standard by the Pollution Control Board, the report of the Board is not acceptable. He also contended that though it is stated by the Board that they inspected their Units, no such Notice was issued and the inspection was not in the presence of the persons concerned. The learned senior counsel also submitted that a direction may be issued to the Board for re-inspection, after proper notice to all the Units. He also prayed that while at the time of inspection by the Pollution Control Board, they may be permitted to take the assistance of the Officers from CLRI. 4. Mr. R. Gandhi, learned senior counsel appearing for 77 Dying Units submitted that they already submitted a proposal which was finalised with the assistance of the experts and it is for the Pollution Control Board to verify and give consent for proceeding further. 5. Mr.T.P. Manoharan, Mr.B.Divakaran, Mr.V. Thillaisamy, Mr.D. Selvarajaju, Mr.K.Raja, Mr. T.Dhanasekaran, Mr.S.K.Nachimuthu, Mr. M.M. Sundresh and Mr. B. Kumaraswamy, learned counsel appearing for other petitioners also raised similar contentions and also prayed for longer time for completion of the project as directed by this Court. 6. Mrs. Rita Chandrasekaran, learned counsel appearing for the Pollution Control Board has filed a compliance report in respect of Tanneries and Textile Dying Units in Erode District covered under W.P.Nos.5494 of 1998 and 30153 of 2003. By taking us through the details furnished therein, the learned counsel appearing for the Pollution Control Board contended that there is no justifiable cause for extending the time since this Court had granted extension of time more than one occasion. She also contended that there is no need to take the assistance of any other agency like CLRI and the Pollution Control Board is the authority to decide the issue in question. 7. We also heard Ms.D. Nagasaila, learned counsel appearing for the petitioner in W.P.No.5494 of 1998, Mr. Dhanapal Raj, learned counsel appearing for the petitioner in W.P.No.30153 of 2003 and Mr. M. Sekar, learned Special Government Pleader, appearing for the State. They expressed that no further indulgence need be shown to the petitioners and according to them, even some of the petitioners without proper permission from the Board running their Units. We also heard Mr. Mohanam, learned counsel appearing for one of the impleaded parties. 8. We are conscious of the fact that some of the Tanneries and Dying Units in and around Erode District, installed RO system and some of them provided RMS, however, the fact remains that most of the Units have not fully complied with the directions/conditions prescribed by the Pollution Control Board. At the same time, we should not loss sight of the difficulties being experienced by the Tanneries and Dying Units. Though Mr. G. Masilamani, learned senior counsel appearing for some of the Tanneries by drawing our attention to various factual details and the opinion of CLRI prayed for longer time i.e. upto 31.3 .2007, while appreciating their efforts, we are of the view that the time as claimed by them cannot be accepted. 9. Coming to the grievance expressed by some of the learned counsel particularly, Mr. R. Krishnamurthi, learned senior counsel that though they provided RO system as well as RMS, the report of the Board shows that RMS is inadequate. Such is the position in respect of other units also. The learned counsel appearing for some of the units, which are cooperative societies represented that in order to install RO system, necessary steps have been taken, tenders have been invited and prayed for some more reasonable time for completion of the work. 10. Taking note of all these grievances/difficulties expressed by the Tanneries and Dying Units as well as the apprehension raised by the learned counsel for Writ Petitioners, we pass the following Order: 1) Time is extended till 31.12.2006 in respect of Tanneries and Dying Units in and around Erode District. 2) It is made clear that no further extension will be granted at any costs beyond 31.12.2006. It is further made clear that if any Unit fails to comply with the direction of this Court as well as the Pollution Control Board in respect of the provision of RO System and RMS, they are liable to pay compensation by way of costs per day to the Pollution Control Board which will be decided after the expiry of the cut off date. 3) The Pollution Control Board is directed to inspect the Units which provided RO system as well as RMS, after due notice to the Units. They are further directed to inspect the same in the presence of the representatives of the Units. The owners of the Tanneries are permitted to take the assistance of CLRI and if any need arise, they can take the service of CLRI at the time of inspection of the Officers of the Pollution Control Board and they are permitted to explain about the system installed by the Units. 4) Insofar as the Dying Units, if they submit the project report to the Pollution Control Board, they are directed to inspect and if they are satisfied, necessary NOC may be issued to the Units/person concerned without further loss of time. 11. With the above directions, all the Writ Miscellaneous Petitions are disposed of. No costs. 

^For Respondent vs Order on 11 July, 2006

Madras High Court

Gujarat High Court Case Information System Print SCA/7412/2008 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 7412 of 2008 ========================================================= ANANGBHAI KUNJBIHARI SHAH - Petitioner(s) Versus STATE OF GUJARAT & 4 - Respondent(s) ========================================================= Appearance : MR MIHIR JOSHI with MR DC SEJPAL for Petitioner(s) : 1, GOVERNMENT PLEADER for Respondent(s) : 1, None for Respondent(s) : 2 - 5. ========================================================= CORAM : HON'BLE SMT. JUSTICE ABHILASHA KUMARI Date : 17/06/2008 ORAL ORDER Notice returnable on 30th June, 2008. Ad-interim relief in terms of paragraph 9[B] is granted till the next date of hearing. Direct Service is permitted. [Smt. Abhilasha Kumari, J.] /phalguni/     Top

Author: Abhilasha Kumari,&Nbsp;

Anangbhai vs State on 17 June, 2008

Gujarat High Court

Gujarat High Court Case Information System Print SCR.A/121/2011 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION No. 121 of 2011 With SPECIAL CRIMINAL APPLICATION No. 123 of 2011 ========================================================= SUBHASHBHAI PARSHURAM PATIL & 5 - Applicant(s) Versus STATE OF GUJARAT & 1 - Respondent(s) ========================================================= Appearance : MR NEHAL R JOSHI for Applicant(s) : 1 - 6. PUBLIC PROSECUTOR for Respondent(s) : 1, NOTICE SERVED BY DS for Respondent(s) : 2, MR MITESH L RANGRAS for Respondent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE MD SHAH Date : 23/03/2011 ORAL ORDER Permitted to place on record the reply. S.O. to 25-3-2011. (M.D.SHAH,J.) radhan     Top

Author: Md Shah,&Nbsp;

Subhashbhai vs State on 23 March, 2011

Gujarat High Court

ORDER P.S. Narayana, J. 1. The revision petitioners are the legal representatives of the landlady, Kalava (sic) Das. The landlady filed R.C.C, No. 31 of 1991 on the file of the Principal District Munsiff-cum-Rent Controller, Vizianagaram praying for the relief of eviction. The learned Rent Controller recorded the evidence of P.W.1, R.Ws. 1 and 2, marked Exs.A-1 to A-4, Exs.B-1 to B-6 and Exs.C-1 to C-3 and ultimately ordered eviction. Aggrieved by the same, the tenants preferred rent control appeal R.C.A.No.1 of 2001 on the file of the Rent Control Appellate Authority-cum-Senior Civil Judge at Bobbili and the appellate authority allowed I.A.No. 159 of 2001 and received certain document but however, dismissed the I.A.No.245 of 2001 filed by the legal representatives of the landlady, the respondents in the appeal, and on appreciation of the evidence available on record reversed the findings recorded by the learned Rent Controller and allowed the appeal negativing the relief of eviction. Aggrieved by the same, the said legal representatives, the respondents in the appeal, had preferred this C.R.P., under Section 22 of the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 (hereinafter, in short, referred to as 'the Act' for the purpose of convenience). The revision petitioners also filed C.R.P.M.P.N0.5340 of 2005 narrating the subsequent events and the second respondent filed counter affidavit pleading no knowledge about certain facts and denying certain facts. 2. Sri T.S Anand, the learned Counsel representing the revision petitioners had taken this Court through the findings recorded by the Rent Controller and also the appellate authority and would point out that the appellate authority had reversed the well considered findings of the learned Rent Controller. The learned Counsel would contend that though the mother, the landlady is no more, the bona fide requirement as far as second son is concerned, it survives and the evidence of P.W.1 is available on record in relation thereto. The learned Counsel also would comment that there is no acceptable explanation for the payment of lumpsum amount by way of demand draft for a period of 11 months and a clear finding had been recorded by the learned Rent Controller and in the absence of any acceptable explanation on the part of the tenants, the legal representatives of the landlady are bound to succeed even on the ground of wilful default. The learned Counsel also would comment that even otherwise the view expressed in relation to the applicability of Section 7 of the Act also cannot be sustained since the amount is said to have been paid under a promissory note and hence, the question of the landlady having advance amount with her would not arise at all. The learned Counsel further commented that, at any rate, in the light of the subsequent events pleaded in C.R.P.M.P.No.5340 of 2005, the petitioners are bound to succeed. 3. Per Contra, Sri Ramlinga Swamy, the learned Counsel representing the respondents-tenants would maintain that the appellate authority had recorded the reasons in detail and, in fact, the conduct of the parties, if taken into consideration, the lump sum payment by way of demand draft cannot be said to be wilful default. The learned Counsel also explained in detail the applicability of Section 7 of the Act, in the facts and circumstances of the case and had pointed out the relevant findings in relation thereto. The learned Counsel also would submit that during the lifetime of the landlady, the landlady had not chosen to examine herself and the second son also was not examined to prove the ground of bona fide personal requirement. Hence, the counsel would contend that the appellate authority had arrived at a correct conclusion in reversing the order of the learned Rent Controller. 4. Heard both the counsel. 5. The second respondent in the C.R.P., the second respondent even in R.C.C.No.31 of 1991 was examined as R.W.1. The first revision petitioner, one of the legal representatives of the landlady, was examined as P.W.1. Apart from R.W.1 one Satyanarayana was examined as R.W.2, Exs.A-1 to A4, Exs.B-1 to B-6 and Ex.C-1 to C-3 were marked. The learned Rent Controller came to the conclusion that inasmuch as the adjustment of amount as per the instructions of the landlady appears to be nearer to truth, the tenants are not wilful defaulters of payment of rent from 1-11-1988 to August, 1990. However, the Rent Controller arrived at a conclusion that in the light of the lump sum payment of Rs.5,500/ - for 11 months from September, 1991 to July, 1991 by demand draft in the absence of any explanation, the same would amount to wilful default. On the aspect of alternative accommodation, the learned Rent Controller recorded a finding that the landlady failed to prove that the second respondent secured alternative accommodation. Further, on appreciation of evidence, the learned Rent Controller also arrived at a conclusion that the requirement of the petition schedule premises by the landlady for the personal occupation of the second son to do business is genuine and accordingly, ordered eviction. The appellate authority had entertained additional evidence at the appellate stage, marked as document Nos. 1 to 4, but however, dismissed similar application filed by the legal representatives of the landlady in 1 ANo.245 of 2001 under Order XLI Rule 27 of the CPC, the certified copy of the judgment and decree in O.S. No. 20 of 1992 on the file of the Senior Civil judge, Vizianagaram. It is no doubt stated that an appeal had been preferred, but the result of the appeal is not known as on today. The appellate authority relied upon Section 7 of the Act and also the decisions in Modern Hotel, Gudur v. K. Radhakrishnaiah and Ors. Bhoja alias Bhoja Ram Gupta v. Rameshwar Agarwala and Ors. , Kranti Swaroop Machine Tools Pvt. Ltd., and Anr. v. Smt. Kanta Bai Asawa and Ors. and Adapa Santharam and Anr. v. Salt Nathmal Manik Chand and came to the conclusion that in the light of the rigor imposed by Section 7 of the Act and also in the light of the oral evidence available on record, the adjustment may have to be believed and hence, taking the conduct of the parties into consideration, the ground of wilful default was negatived. Likewise, after recording certain reasons, the other ground of bona fide personal requirement also had been reversed. As can be seen from the material available on record, the transaction is a promissory note between the landlady and the second tenant. Some oral evidence no doubt had been let in to connect this document with the said advancement of the amount liable to be adjusted in relation to the rents. In the light of the language employed in Section 7 of the Act, it is doubtful whether all such monetary transactions like covered by promissory note etc., would fall within the meaning of the rigor of Section 7(1) of the Act read with Section 7(3) of the Act. It is needless to say that there may be several transactions, but the relationship may be that of the creditor and the debtor and necessarily such a relationship cannot be said to be as one concerned with the advancement of amount between the landlord and the tenant or the landlady and the tenant as the case may be. Apart from this aspect of the matter, relating to the lump sum payment also and the conduct in relation there to, the evidence of R.W. 1 and R.W.2 alone is available on record. It is true that the landlady who is a very old lady at the relevant point of time was not examined one of the sons alone had been examined and the second son was not examined. However, in C.R.P.M.P. N0.5340 of 2005 wherein the subsequent events were brought to the notice of this Court, it was pleaded that during the pendency of the proceeding, the Fancy and General Merchants shop which the second revision petitioner was having within the railway station premises was dismantled for extension of the railway ticketing counter and at present he is jobless and there is no other source of livelihood and on this ground also they are entitled to the relief of eviction. As far as this aspect is concerned, in the counter affidavit filed by the second respondent, it was stated that they have no knowledge about the same, but however, further stated that he secured accommodation near railway station adjacent to village temple in the business area and no doubt, several other facts also had been narrated in the counter affidavit. 6. In the light of the respective stands taken in the affidavit filed in support of the application and the counter affidavit, the factual aspects may have to be enquired into and parties may have to let in evidence in relation thereto. Apart from this aspect of the matter, the findings recorded by the appellate authority are not happily worded especially in the light of the applicability or otherwise of the Section 7 of the Act in relation to a promissory note, in the light of the language employed in Section 7(1) of the Act. 7. In the light of the reasons recorded above, this Court is of the considered opinion that the parties to be given an opportunity to let in further evidence relating to all aspects inclusive of subsequent events which had been put forth before the revisional Court. Accordingly, the impugned order is here by set aside and the matter is remanded to the appellate authority for the purpose of affording opportunities to both the parites to let in further evidence, if the parties require to do so, relating to the subsequent events and also in relation to the other grounds. It is also made clear that both the parties are at liberty to-produce any additional oral and documentary evidence also inclusive of the certified copy of the judgment and decree in O.S.No. 20 of 1992. 8. With the above observations, the C.R.P. is allowed to the extent indicated above. No order as to costs. 9.The appellate authority to make an endeavour to dispose of the matter at the earliest point of time, keeping in view of the fact that the matter is an old one.

Author: P Narayana

Josyula Jagan Mohandas And Ors. vs Pyda Venkatesam And Anr. on 23 December, 2005

Andhra High Court

$~3 * IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.(C) 1482/2012 RAJIV KUMAR ..... Petitioner Through: Mr. Abhimanyu Singh, Advocate versus ORIENTAL BANK OF COMMERCE AND ORS ..... Respondent Through: Mr. Rajat Arora and Mr. Niraj Kumar, Advocates CORAM: HON'BLE MR. JUSTICE CHANDRA DHARI SINGH ORDER % 11.11.2022 At request of learned counsel for the petitioner, list on 17 th February 2023. CHANDRA DHARI SINGH, J NOVEMBER 11, 2022 Aj/Ms Signature Not Verified Digitally Signed By:GAURAV SHARMA Signing Date:14.11.2022 17:47:25

Rajiv Kumar vs Oriental Bank Of Commerce And Ors on 11 November, 2022

Delhi High Court - Orders

IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No.854 of 2011 ====================================================== Dilip Sao @ Dilip Kumar Sao .... .... Appellant/s Versus The State Of Bihar .... .... Respondent/s ====================================================== 3 22-11-2011 Since, it is submitted by learned counsel for the informant that the appellant is earlier convicted under Section 364A of the Indian Penal Code which is controverted by learned counsel for the appellant, let the counsel for the informant file appropriate affidavit to that effect. Put up this appeal after two weeks. (Shyam Kishore Sharma, J) Amrendra Kumar/- (Dinesh Kumar Singh, J)

Dilip Sao vs The State Of Bihar on 22 November, 2011

Patna High Court - Orders

JUDGMENT K.R. Vyas, J. 1. Draft amendment is granted. 2. Rule. Mr. P. G. Desai, learned Government Pleader waives service of Rule on behalf of the respondent. Since the matter was heard at length, it was at the suggestion of the Court, Mr. P. G. Desai, learned G.P. has waived the service of Rule on behalf of the respondent. 3. The petitioner in this petition under Art. 226 of the Constitution of India, is challenging the decision of the Government removing the petitioner from the post of Additional Public Prosecutor in the City Sessions Court, Ahmedabad. In order to appreciate the grievance of the petitioner, some brief facts of the present case are required to be stated, which are as under : 4. The petitioner was enrolled as an Advocate on 21-8-1980. The petitioner was appointed as Additional Public Prosecutor on 3-10-1989. The term of the petitioner was extended from time to time. On 25-9-1997 the petitioner came to be appointed as Additional Public Prosecutor for a period of three years. It appears that while performing her duties as Additional Public Prosecutor, the petitioner gave consent to release the accused on bail for the alleged offence under Section 489-A, B and C of I.P.C. The petitioner was called upon by the Deputy Secretary. Legal Department, by his letter dated 27-4-1998 as to why she gave consent to release the accused on bail in the said offence. It was further directed to explain the position within 10 days from the date of the receipt of the letter, failing which necessary actions shall fall. It appears that the petitioner had some medical problems and, therefore, she sought some time to file the reply. The petitioner on 15-7-1998 gave reply to the Deputy Secretary, Legal Department pointing out inter aria that reading the police papers, she found that prima facie the offence was regarding the possession of the counterfeit currency notes and beyond that there was no evidence and, therefore, the alleged offence was only under Section 489-A which is bailable and, therefore, she gave a consent. It is to be noted that even the learned Sessions Judge also observed in his order dated 16-2-1998 that there is no evidence with regard to the recovery of the muddamal articles from the accused and, therefore, the accused are entitled to be released on bail. The learned Sessions Judge also found that prima facie the evidence is possession only and, therefore, the alleged offence was only under Section 489-C, a bailable offence. It appears that the explanation tendered by the petitioner was not accepted by the State and, therefore, the State Government decided to remove the petitioner as Additional Public Prosecutor and, accordingly on 5-9-1998 the impugned order was passed. 5. It is true that the petitioner has approached this Court on 7-9-1998, this Court while issuing notice directed the respondent not to pass any adverse order with regard to the service conditions of the petitioner. However, reading the affidavit filed by the Under Secretary, Legal Department, it appears that the service of the petitioner came to an end on 5-9-1998 and the Registrar of City Sessions Court, Ahmedabad was informed on Fax and communicated this decision to the petitioner. Reading the affidavit of the Under Secretary, it is also clear that the impugned order is passed under Rule 5(4) of the Gujarat law Officers (Appointment and Conditions of Service) Rules, 1965 (hereinafter referred to as "the Rules" for short). Rule 5(4) reads as under :- "5. Period of Appointment : (1) All law officers shall hold office during the pleasure of the Governor. (2) xxx xxx xxx xxx (3) xxx xxx xxx xxx (4) A law officer shall be liable to be removed from his office at any time, if he is guilty of any act of conduct which, in the opinion of the State Government is incompatible with his duties as such law officer. The decision of the State Government in such cases shall be final". Reading the provision of Rule 5(4), it is clear that it is the right of the State Government to remove the law officer from his office at any time, if he is guilty of any act of conduct, which in the opinion of the State Government is incompatible with his duties. This Court has an occasion to consider the provisions of the said rules in the case of R. K. Shah v. State of Gujarat, 1997 (2) GLH 37, wherein it is observed that before exercising the powers under Section 5(4) of the Rules, the concerned law officer is required to be given an opportunity to explain about his conduct. The reasons for giving notice is necessary because the provisions of Rule 5(4) are taken into consideration, then it would be quite clear that the order in question if read by a common man, then it will lead him to believe that the present petitioner was found guilty of actor or conduct which in the opinion of the State Government, is incompatible with his duties as such law officer. Therefore, when that would be a belief or understanding of the order in question, the passing of the order of cancelling the appointment of the present petitioner without giving her any opportunity to explain about her conduct and giving her any opportunity of being heard would be against the principles of natural justice. In the instant case also, there is nothing on record to show that the communication dated 27-4-1998 is under the provisions of Rule 5(4) of the Rules but it merely calls upon the petitioner to explain for giving consent to enlarge the accused on bail in the case in question. The explanation which the petitioner has given prima facie appears to be just and proper, especially when the learned Session Judge also found that the case against the accused was bailable and, therefore, the accused were released on bail. Merely because the petitioner has given consent on the basis of the material on record, she on the contrary assisted the Court instead of wasting the time of the Court in lengthy arguments. This fact by itself is not a ground for passing the order of removal and that has exactly been done in the present case, therefore, assuming that the communication dated 7-4-1998 is treated to be a notice under Section 5(4), in that event also, the respondents were not justified in removing the petitioner as an Additional Public Prosecutor on that ground that she gave consent for releasing the accused on bail. Under the circumstances, I see no justifiable ground in passing the order of removing the petitioner as Additional Public Prosecutor, Mr. P. G. Desai learned G.P. invited my attention to the decision of the Apex Court in the case of State of U. P. v. U. P. State Law Officers Association & Ors. 1994 I CIR 982 SC, wherein the Apex Court examined the appointments of the lawyers by the Government and the public bodies and their removal in detail. Having gone through the said judgment, while accepting the principle laid down in the said judgment, I am of the view that the facts in the present case are quite distinct and independent, on the contrary, the observations made in the said judgment will be helpful to the cause of the petitioner. Mr. Desai, however, submitted that it would be the right of the Government to exercise their powers under Rule 7(A) of the Rules which have already been exercised whereby they have lost the faith and confidence in the petitioner, and, therefore, it is not obligatory on the part of the Government to assign work. Since that is not the question before me to decide, I express no opinion in the matter. However, at present, I am concerned about the legality and validity of the impugned order and in view of the discussion above, I am of the view that the respondent is not justified in removing the petitioner as Additional Public Prosecutor. 6. In the result, the impugned order dated 5-9-1998 is quashed and set aside and it is declared that the petitioner is continued to hold the office of Additional Public Prosecutor with effect from 6-9-1998. Rule made absolute with no order as to costs.

Author: K Vyas

Nayanaben Balubhai Bhatt vs State Of Gujarat on 28 September, 1998

Gujarat High Court

JUDGMENT R.K. Mahajan, J. 1. This appeal raises interesting questions in the context of strained family life of husband and wife. The plea of wife appellant is that she is entitled to the company of husband who is an Engineer at the places of his posting. Her repeated grievance is that she wants company of her husband at Sillgudl where he is presently posted, to enjoy the marital rites. The plea of husband respondent is that the wife should reside at his parents house and he cannot take her at different places of his posting. There is one more factor in this case which come Up during the negotiations held in our Chambers as required under the Statute, that the husband is not ready and willing even to have a separate residential accommodation at Agra where he has settled whereas the wife is ready to live with the husband even in small accommodation. Thus, the main question for determination by this Court is whether in the circumstances narrated above, the conduct of husband amount to desertion and cruelty? 2. The trial court has passed decree of divorce believing the version of husband to be correct and has granted maintenance of Rs. 1,000 per month to the wife. 3. The second question involved in this appeal is whether the wife is entitled to get custody of the child, namely, Anupam Shah (alias Shrenik Shah) aged about 4 years at the time of filing of the plaint who is presently living with his real maternal uncle and is getting education there. The wife appellant is living at Loharia with her brother. 4. The husband respondent is an Engineer. His two wives died earlier on account of different reasons which will be stated later on. Similarly, the wife appellant had also given divorce to her former husband on the ground of impotency. 5. The appeal has been filed against the decree and judgment dated 9.9.96 passed by the Judge, Family Court, Agra granting decree of divorce and allowing the custody of the child to the respondent, the father and granting maintenance of Rs. 1,000 per month to the wife appellant. 6. In is not disputed that the marriage took place between the parties in accordance with Hindu rites at Agra on 17th July. 1986 and after having a peaceful married life for some time, a male child was born on 8th May, 1987. namely, Anupam Shah. The version of husband respondent is that the wife's pressure was to persuade the husband respondent to live separately from his parent to which he did not agree. She created problems in the house by way of abusing the parents and other members of family. She used to threaten the family members to implicate in false criminal cases. She did not spare even her husband from using derogatory language, it is alleged that while the husband was posted at Sillgudi. she left the house for her parents house without permission of husband or his family members. He sent his close relations, i.e.. brother-in-law, sisters and friends to bring her back but she did not return back. Later on. since the wife has withdrew from the society of husband without reasonable excuse, hence he moved a petition for restitution of conjugal rights under Section 9 of Hindu Marriage Act. Thereafter the petition under Section 9 was converted into petition under Section 13 of Hindu Marriage Act and it is also alleged that the said conversion of the petition was allowed with the consent of wife. It appears that an other application was also filed by the husband for the custody of the child. 7. The wife appellant has denied desertion and cruelty on her part to the husband. She has stated that prior to her marriage with the respondent, he had married one Smita of Kanpur and treated her with cruelty as a result of which that marriage was dissolved. Thereafter he again married one Anna of Jaipur who died in suspicious circumstances at the house of the respondent. In her statement the wife appellant has denied to have pressurised her husband respondent to live separately from his parents and has stated that she has been behaving respectfully with the husband and his family members as is expected of a married lady. She has further alleged that the husband respondent wanted a child from her and thereafter he started creating a situation of divorce so as to get the custody of child. The wife appellant has further stated that on the eve of "Rakshabandhan" in the year 1990 her brother came to Agra to take her to Gwalior but he was not properly treated by the family members of the husband and he was told that he could take his sister (wife/appellant) but the child would not be sent at any cost. The appellant's brother conveyed it to her parents at Gwalior, then family members came to take her even then the husband and his family members did not agree to send the child with her mother, i.e.. wife appellant. It is denied that she went Gwalior at her own account or she was forcibly taken to Gwalior as stated by the husband respondent. 8. In her statement the wife appellant has further stated that she was not treated as wife by the in-laws but as a maid servant. No proper fooding and clothing was provided to her. She has also stated in her statement that she did not take any valuable thing with her while going to Gwalior on 4.5.90 whereas her father had given Rs. 30,000 in cash. 9 Tolla gold, etc. But it all remained with her husband. In her written statement the appellant has stated that her husband respondent had beaten her on 27.6.87, 12.10.87, 11.7.90, 12.7.90 and 13.7.90. Even her husband's brother Anil Kumar beaten her on 14.9.88. She was beaten and ousted from the house. It is further alleged that after 1990 her husband never came to take her to his house. 9. The husband respondent examined 5 witnesses Including himself as P.W. 1, Radha KIshan P.W. 2. Radha Vallabh P.W. 3, Som Chand Shah P.W. 4 and Varma Shah P.W. 5. The wife appellant examined herself as D. W. 1 and her brother Prem Kumar as D. W. 2. 10. The Judge Family Court has believed that version of husband respondent and has found the cruelty by wife proved and the cruelty by husband not proved. The issue of desertion has been decided in favour of the husband. 11. It is very unfortunate that the judgment of the Judge Family Court is running into 38 pages. Writing of lengthy judgments by the Family Courts is not the statutory expectation but it appears that they are behaving like civil courts. The judgments of Family Courts should be precise, and points for determination, brief discussion of evidence and criticism of the same and the efforts made for settlement. Otherwise the very purpose of establishing Family Courts for expeditious disposal of matrimonial disputes will be frustrated as the Judges of Family Courts would spend more and more time in writing lengthy Judgments and will go on prolonging the proceedings 12. In the grounds of appeal it is averred that the Judge Family Court has committed mistake in converting the petitioner under Section 9 of Hindu Marriage Act Into petition under Section 13 of Hindu Marriage Act. It has committed further illegality : in rejecting the application for refund of Stridhan and directing the custody of minor child to the father from mother. It is further averred that the Family Court erred in arriving at the finding recorded by it in view of the fact that the husband respondent was serving in All India Radio, Siliguri (Assam) and did not took his wife there and the question of separation does not arise. It is further averred that the findings of desertion and cruelty are not sustainable. It is also averred that the Family Court did not weigh properly the evidence on record. In ground No. 18 it is also alleged that the wife appellant was not given proper opportunity to cross-examine the P. Ws. 13. We would like to consider the substance of the evidence adduced by both the parties. P.W. 1 Kiran Kumar Shah as supported his version mentioned in the plaint. From his statement we find that his main grievance is that his wife started pressurising him to have a separate residence from his parents immediately after birth of the child and on this issue quarrel started between husband and wife. The wife went to Gwallor without his consent. During cross-examination wife put some suggestions regarding looking after the child and imparting education which the husband has denied. 14. P. W. 2 is a witness of the fact that the in-laws of the wife came to the house of the husband in the absence of husband, they were quarreling, he asked them to tell him the reason of quarrel and came to know that the relations of wife wanted to take with them the appellant (wife) with child to Gwalior and they took with them the appellant and the child after signing the paper No. 70Ga. It is alleged that some injuries were received by the brother of the husband but no medical examination took place. 15. P. W. 3 Radha Vallabh is also a neighbour. He also deposed the fact that the relations of wife had come to take the child and the appellant with them as the school had opened. There was some quarrel going on over taking of the child when he reached there. The paper No. 70Ga was written and signed in his presence. The appellant and the child went. 16. P. W. 4 father of the husband has supported the version regarding coming of relations of the appellant and taking of the child to Gwaliar after signing the paper No. 70Ga. He has also stated that the behaviour of the appellant was not proper. She was abusing but he has not stated the exact words of abuse. 17. The statements of P.Ws. 2 and 3 have been criticised by the counsel for the appellant saying that they are not reliable as they are the chance witnesses. 18. D. W. 1 is the wife appellant. The substance of her statement shows that she was not allowed to be treated as Bahu in the house. She was not allowed to feed the child nor was kept in a position to feed the child timely. Whenever she asked the husband about his visits he replied that she was not concerned with it. His intention was to take birth of a child and thereafter to kick her out. She further stated that she is living at her parents house since 4.5.90. She had delivered the child at Agra and her mother-in-law looked after her properly in the hospital. 19. Learned counsel for the appellant contended that there is no evidence on record regarding cruelty and desertion and the Judge Family Court has committed error in appreciating the evidence to arrive at the conclusion of cruelty and desertion. He has further contended that the P.Ws. 2 and 3 are chance witnesses and they do not prove cruelty and desertion. He has also contended that the approach of the Judge Family Court regarding the custody of the child is not legal as welfare of the child lies with the mother. He also contended that the amount of maintenance is too meagure. 20. Learned counsel for the respondent has supported the judgment of Family Court and gave an offer that the husband respondent is ready and willing to live with the wife appellant. He contended that there is no question of cruelly on the part of the husband respondent as the marriage in question was the third marriage. 21. Catena of authorities have been cited by both sides but they need not be referred, the relevant judicial precedents on the question of cruelty and desertion have been considered by us. 22. The Judge Family Court has given a wrong finding regarding desertion and cruelty. It has been repeatedly ruled by the Apex Court as well as the High Court that there should be intention to desert and to bring the cohabitation to an end permanently. There should be factum of separation and animus desrendi. Under Section 13(1)(i-b) of Hindu Marriage Act there should be desertion for a continuous period of not less than (wo years immediately preceding the presentation of the petition. In Explanation of Section 13 the 'desertion' has further been explained. In this Explanation the expression 'desertion' means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and Its grammatical variations and cognate expressions shall be construed accordingly. In this case we find that the desertion is on the part of the husband. The husband is not taking her to Slliguri. He does not want to hire separate quarter. As regards the wish of the wife appellant to live separately from his parents, now a days the trend in the society is that newly married ladles want to live separately to have their separate life with the husband. Mere pressure by a wife on the husband to live separately from the parents is not a sufficient ground for divorce or cruelty. If that is held to be so it would create a chaos in the society and so many marriages would break. Son's duty to parents is not diluted and he is bound to look after his parents but he has to do so as far as possible because he has not to disturb the peace of his mind after his marriage if the wife wants to live separately from his parents. The married couple wants to start a separate matrimonial home. Even the parents would not mind if the son and the daughter-in-law live happily with the child and with the passage time every thing comes to a normal level. The husband has failed to explain as to why he did not take the wife if she wants company of husband as the place of his posting for satisfaction of conjugal relations as it is one of the basic essential features of a married life. The husband did not discharge the duty of a prudent husband by refusing to take her to Slliguri where he was posted. Then there was no course left for the wife except to go to her parents and to live there with the child. It becomes very unfortunate state of affairs in the society if the brothers and close relations of the wife have to bear the burden of maintaining sister and her children. In the married life there has to be give and take. So many small matters have to be tolerated. The role of abusing and throwing utensils etc. assigned to the wife appellant does not seem to be believable and there is no evidence of physical and mental cruelty on the part of the wife. The Legislature itself in its wisdom has mentioned the ground of cruelty in Section 13(i-a) of Hindu Marriage Act in the following words : "(i-a) has, after the colemnization of the marriage, treated the petitioner with cruelty : The cruelly can be physical and metal. There is no evidence of cruelty in the Instant case nor the wife who is an illiterate lady and is a divorcee prior to the marriage in question, in the normal course of business can be presumed to go to that extent. How it can be said that even if she went to her parents house she committed cruelty. It is repeatedly stated by the wife that the husband wanted a child from her and then to kick her out. Learned counsel for the wife appellant submitted that the husband respondent was misbehaving with previous wifes also. We do not want to comment much on his behaviour with previous wlfes but the attitude of the husband respondent with the wife appellant in the instant case does not seem to be reasonable, rather it appears to be neglectful which can be termed as wilful also as he was not acceding to the request of the wife. We cannot believe the injuries alleged to have been inflicted by the relations of wife/appellant at the time of taking the child, as no medical report is on record nor any report was lodged with the police. It seems that some quarrel by words was going on which was solved by writing of paper No. 70Ga. 23. We reverse the findings of Family Court regarding desertion and cruelty as the approach of Family Court is thoroughly misconceived both on law and facts and as such is not sustalnable. The Family Court appears to have not cared to read the alms and objects of the Family Courts Act which is as under. "An Act to provide for the establishment of Family Courts with a view to promote conciliation in, and secure speedy settlement of. disputes relating to marriage and family affairs and for matters connected there with." The emphasis is no promoting conciliation and there by preserving the marriage but while deciding the appeals we have seen that Family Courts are mostly passing the decree of divorce. 24. Learned counsel for the husband/respondent Sri Prakash Chand submitted that the wife/appellant is a lady of adament nature and the respondent/husband and his family members are keen to keep her specially when she has given birth to a male child but he could not substantiate it when he was asked about the fact as to why the husband did not take her at different places of his posting and to live separately and he could not reply it with cogent reasons. Therefore, we straightaway brush aside his submissions. 25. Learned counsel for the appellant has further submitted that the Family Court should not have allowed the conversion of application for restitution of conjugal rights to the divorce petition. We do not find any weight in this argument. The application under Section 9 is filed on the ground that the other party, without any reasonable excuse, withdrawn from his society and therefore, the conjugal rights be restituted. The Courts have been granting permission for converting the applications for restitution of conjugal rights into the petitions for divorce', with a view to cut short the litigation. This submission of learned counsel for the appellant also falls to grounds in view of statutory provisions of Section 23A of the Hindu Marriage Act which reads as under : "23A. Relief for respondent in divorce and other proceedings. In any proceeding for divorce or Judicial separation or restitution of conjugal rights, the respondent may not only oppose the relief sought on the ground of petitioner's adultery, cruelty or desertion, but- also make a counter-claim for any relief under this Act on that ground, and if the petitioner's adultery, cruelty or desertion is proved, the Court may give to the respondent any relief under this Act to which he or she would have been entitled if he or she had presented a petition seeking such relief on that ground." The above quoted provision has been brought on the statute book by Act No. 68 of 1976. If the relief of divorcees available on the ground of cruelty and desertion in a counter claim it is not understandable as to how the proceedings for restitution of conjugal rights cannot be converted into those of divorce, in order to expedite the proceedings. 26. Now we would like to deal the issue of custody of child. The child is 9 years old now and is studying at Gwallar. The wife has been found with her brothers who are well of financially. The child is being given education in the best school and environment. She has already placed on record materials regarding schools in which the child is studying. The basic principle in deciding the custody of the child is as to with whom the walfare of child lies. It can be given even to third party if in the opinion of the Court the welfare of the child lies there. In this regard statutory provisions of Section 13 of Hindu Minority and Guardianship Act, 1956 are very relevant and they are as follows : "13. Welfare of minor to be paramount consideration.-- (1) in the appointment or declaration of any person as guardian of a Hindu minor by a Court, the welfare of the minor shall be the paramount consideration. (2) No person shall be entitled to the guardianship by virtue of the provisions of this Act or of any law relating to guardianship in marriage among Hindus, if the Court is of opinion that his or her guardianship will not be for the welfare of the minor." No doubt, father is natural guardian under Section 6 of aforementioned Guardianship Act but it cannot supersede the paramount consideration of welfare of the minor, but there is a non-substante clause regarding welfare of the minor. The boy, from his own point of view, ought to be in the custody of the mother. The boy will get more love and affection from his mother. There is no allegation of unchestity or adultery against the mother. Had the father been anxious to give best attention to the child, he would have kept the mother and child at respective places of his postings and he would have not refused the proposal of the wife to keep her at respective places of his postings. We do not want to burden the record unnecessarily by citing catena of authorities of Privy Council, Apex Court and various High Courts Including this Court as the legal position on the point is well-settled that the Court has to see the welfare of the child under the facts and circumstances of each case. Thus, in our view Family Court has erred in giving custody of the child in the facts and circumstances of instant case to the father, consequently we set aside the same and direct that since in our view the welfare of the child lies with the mother, the child be given in the custody of mother /appellant. 27. Now we would deal with the maintenance part of the case. The husband is an Engineer. The Family Court has erred in awarding a meagure amount of Rs. 1,000 only as maintenance. The amount of maintenance for wife should be such that she can maintain and keep herself in the same standard in which she could have lived with her husband. No doubt, the amount should not be excessive but however, it must be reasonable. Considering the fact that the wife has to maintain the child also apart from herself and keeping in view the standard of the husband and also his liability to maintain his parents, we enhance the maintenance amount of wife from Rs. 1,000 to Rs. 1,500 per month and reverse the findings of Family Court to that extent. 28. In the grounds of appeal one of the grounds is that the application does not lie for return of articles presented at the time of marriage. We do not agree with the findings of Family Court in this regard also. Section 27 of the Hindu Marriage Act postulates that the Court may make such provisions in the decree as it deems just and proper with respect to any property presented. at or about the time of marriage, which may belong jointly to both the husband and the wife. Thus, it is clear that the application does lie. However, in the instant case, since we have preserved the marriage hence there is no necessity to pass any order regarding return of articles. 29. In view of the discussions made above we are of the considered opinion that the appeal deserves to be allowed. 30. In the result the appeal succeeds and is allowed. The impugned judgment and decree of divorce is set aside. The amount of maintenance to the wife is enhanced from Rs. 1,000 per month to Rs. 1,500 per month. The custody of minor child is directed to be given to the mother, i.e., the appellant. There shall, however, be no order as to costs. Binod Kumar Roy, J. 31. I agree.

Author: R Mahajan

Smt. Shashi Shah vs Kiran Kumar Shah on 21 September, 1998

Allahabad High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.8751 of 2009 Raj Kishore Rai Versus The State Of Bihar & Ors ----- Snkumar/- (Navin Sinha,J.) 3. 09.08.2011 Heard learned Counsel for the petitioner and the learned Counsel for the State. The petitioner is aggrieved by the order dated 12.1.2009 passed by the District Magistrate, Katihar, pursuant to which it has been directed that no work should be taken from him as Chaukidar. It is submitted that the petitioner was appointed as Chaukidar on 30.8.2005 by the Competent Committee chaired by the District Magistrate. The impugned order talks of a government instruction dated 4.5.2005 which had directed that the appointment of Evaji Chaukidar and their regularisation be not considered. The order of appointment of the petitioner does not mention that he was an Evaji Chaukidar or that he was being regularized. There shall be a presumption of an appointment in accordance with law by the committee concerned. It was not an appointment by an individual made without authority. Counsel for the State submits that it is apparent from the order of the District Magistrate that the appointment was in teeth of the government instruction dated 4.5.2005 prohibiting appointment and regularisation of Evaji Chaukidar. It is next submitted on behalf of the State that any appointment on 30.8.2005 could have been only after an open advertisement and merit selection. The counter affidavit of the District Magistrate relies on the government instruction dated 4.5.2005. The letter has been appended as Annexure 5 to the writ application. It talks of ban on appointment of 2 Evaji Chaukidar after 6.11.1991.The counter affidavit of the District Magistrate is completely silent on the methodology followed by the committee while making appointment of the petitioner on 30.8.2005. If 13 appointments were made by a committee, the presumption shall be that proper procedures for appointment were followed. If the committee acted illegally all the members of the committee may become answerable and the petitioner alone cannot be allowed to suffer. The counter affidavit states that a show cause has been issued to the District Magistrate. But if there was a ban and the petitioner held the status of Evaji Chaukidar and if the order dated 30.8.2005 was in fact an order of regularisation, different considerations may arise in context of the ban order dated 4.5.2005. The accountability and answerability of the District Magistrate shall necessarily also fall for consideration. The impugned orders and the counter affidavit are hardly of any help and leaves the Court more confused. The matter is remanded to the Deputy Secretary, Home (Police), to grant a personal and/or representative hearing to the petitioner and pass a fresh reasoned and speaking order so that judicial review, if necessary, is facilitated. If the Deputy Secretary is satisfied that the appointment of the petitioner on 30.8.2005 was in accordance with law nothing precludes him pursuant to the present order of the Court to pass an appropriate order notwithstanding the direction of the District Magistrate dated 12.1.2009. The petitioner was appointed as a Chaukidar. he alone cannot suffer except along with those who appointed him. Let such fresh orders be passed within a maximum period of three months from the date of receipt and/or presentation of a copy of this order before him. The writ application stands disposed.

Raj Kishore Rai vs The State Of Bihar & Ors on 9 August, 2011

Patna High Court - Orders

IN THE HIGH COURT OF KARNAT AKA AT BANGALORE DATED THIS THE 9TH DAY OF NOVEMBER _ BEFORE THE I-ION'BLE MR. JUSTICE WRIT PETITION NO.538}I/2!O06(S?RES)V 1. THE MANAGEMEN'r SZEDUCATION SOCIETY REPRE~SENT_E£) EY._ITS~ CHAIRMAN SHETTIHALLY ROAD * TUMKUR... ' 2 THE 'PRINCI_I?AL.:« A _ "" " T.U1\:£KI.JR;.'f-._ * A ~ ~ [BY SHRTIIIIJSHTAQ ADV.) ... PETITIONERS I _I* "1;;'s MALLIKARJUN S/O SIDDAMALLAPPA AGED. ABOUT 39 YEARS, R./A71' MOUNA MAYURA, . 3RD'Mj_AI'N, GANDHINAGAR. TUMKUR. I 2 '*TLTE DIRECTOR OF TECHNICAL EDUCATION ' PALACE ROAD BANGALORE. E _.:%3 THE SECRETARY T 0 GOVERNMENT DEPARFMENT OF EDUCATION. M.S.BUILDING. BANGALORE 1. . . RESPONDENTS(BY SHRI K V NARASIMHAN, ADV. FOR R1} THIS WP IS FILED UNDER ARTICLES 225"AND__f2:3A7'I«% OF THE CONS"I'I'I'U"I'ION OF INDIA, PRAYIi\§_G' QUASH VIDE ANN~A DT. 22.9.05 IN MA(EAT}:'~.13;1VO4 BY ~. ' THE PRL. DISTRICT JUDGE ANID"EA'1"'. A1: T_UMK._UR.*-T: This Writ Petition coming the Court made the foE10vv1'ri.g:~«. PF is not paid évfifiaftefiV{t}I.I?ééfVtiéjpprtunities given. None aPi3eareci:'fQ.r "t'i.'1€ matter was Pétition for nomprosecution. 361/': Iudgté

Author: V.Jagannathan

The Management Of H M S Education ... vs H S Mallikarjun S/O Siddamallappa on 9 November, 2010

Karnataka High Court

JUDGMENT Mohammad Rafiq, J. 1. The petitioner in this writ petition seeks to challenge the order dated 11/5/2007 passed by the District Judge, Jaipur City, Jaipur thereby rejecting her application filed on 26/4/2007. This application was filed by the petitioner in the pending proceedings under Section 372 of the Indian Succession Act, 1925 (hereinafter referred in short as the "Act") which in fact was jointly filed on 20/2/1998 by the petitioner, Rajkumari Lalitya and Rajkumar Dev Raj, respondents No.2 and 3, respectively for issuance of Succession Certificate with regard to properties of late 'Maharaj' Jagat Singh who died on 5/2/1997. When notices of the petition under Section 372 of the Act were issued, other legal representatives of late 'Maharaj' Jagat Singh namely; Maharaj Prithvi Singh and 'Maharaj' Jai Singh admitted to the claim of the aforementioned three applicants to inherit estates of late 'Maharaj' Jagat Singh in equal proportion. Yet another brother 'Maharaj' Bhawani Singh objected to the same. Subsequently, however, he also by written application withdrew his objection and 'Maharaj' Bhawani Singh subsequently also submitted an application stating that he would have no objection to succession certificate being granted in favour of all three applicants Viz. the petitioner, respondent No.2 and respondent No. 3 herein. In fact, statement of the petitioner Rajmata Gayatri Devi was recorded on 26/4/2006 in which, she admitted the right of the respondents, son and daughter of late 'Maharaj' Jagat Singh, to inherit the estates of their father in equal share along with her. The petitioner thereafter filed an application before the Court of District Judge on 11.5.2007 thereby seeking to withdraw her admission made before that Court in her statement recorded on 26.4.2006 on the premise that she has now discovered a will executed by her son late 'Maharaj' Jagat Singh on 23.6.1996. She moved another application before the Court of District Judge through her power of attorney holder on 20.5.2006 with the prayer that succession certificate be now issued only in her name alone. Two brothers of 'Maharaj' Jagat Singh, namely, 'Maharaj' Prithvi Singh and 'Maharaj' Jai Singh also filed application , before the Court on 24/5/2006 resiling from their earlier stand and seeking to withdraw the no objection/consent filed by them for granting succession certificate in favour of the three applicants. It is in the backdrop of these facts that the petitioner filed an application Under Section.276 of of the Act before the Court of learned District Judge on 3/7/2006 inter-alia for grant of letter of administration. In view of contest between the parties, it was directed by the Court vide its order dated 12/1/2007 that application should be decided as a suit. In that view of the matter, the petitioner through her power of attorney holder moved application before the Court that proceedings of the application under Section 372 should be stayed to await the decision of the proceeding under Section 276 of the Act. The learned District Judge rejected the said application vide order dated 11.5.2007, which is subject-matter of challenge in the present writ petition. I have heard Shri G.K. Garg, learned Counsel for the petitioner and Shri D.K. Malhotra, learned Counsel for the respondents. 2. Shri G.K. Garg, the learned Counsel for the petitioner argued that Section 370 of the Act provides that succession certificate shall not be granted with respect to any debt or security to which a right is required by Section 212 or Section 213 to be established by letters of administration or probate. It was argued that Section 212 of the Act provides that that no right to any part of the property of a person who has died intestate can be established in any Court of Justice, unless letters of administration have first been granted. However, Section 213 of the Act provides that no right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in India has granted probate of the Will under which the right is claimed, or has granted letters of administration with the Will or with a copy of an authenticated copy of the Will annexed. Learned Counsel for the petitioner further argued that even if Section 213(2)CO of the Act provides that in the cases where Wills are made by any Hindu, Buddhist, Sikh or Jain, where such Wills are of the classes specified in Clauses (a) and (b) of Section 57 which debars such application under Section 213(2) to be made outside the territorial jurisdiction of the High Courts at Calcutta, Madras and Bombay, that cannot be made basis for discriminating against all Hindus residing iii other parts of the country including the State of Rajasthan. In fact, learned Counsel submitted that in the State of Rajasthan probate was not required to be obtained for the will, as held by this Court in Smt. Roopa Bai and Ors. v. Hukum Singh RLR 1987(1) 550 : 1987 RLW 411 and the Court in view of the fact that there were conflicting views of the co-ordinate Benches and also because the Court found that this amounted to discrimination qua the petitioner in that case on territorial considerations, referred the said question to the Larger Bench for adjudication and consideration. Learned Counsel however, could not point out as to whether reference has been answered or not and if so, in what manner. 3. Though the petitioner did not implead the respondents No. 2 and 3 as party to the aforesaid petition filed under Section 276, the respondents on coming to know of the said petition on their own filed an application for their impleadment and also objections about its maintainability. In view of the contest between the parties, the learned trial Court converted the proceedings under Section 276 of the Act into regular suit vide order dated 12/1/2007. 4. Shri G.K. Garg, the learned Counsel for the petitioner argued that the question regarding issuance of succession certificate does not arise unless substantive right between the parties have been crystalized in the proceedings under Section 276 of the Act for grant of letter of administration. It was argued that on the analogy given in Section 370 of the Act provisions of Section 213 shall also apply to Will executed in the State of Rajasthan particularly when there is no prohibition under the Act for obtaining probate/letter of administration for such wills even in the State of Rajasthan. When provision of Section 213 read with Section 370 of the Act are read together, letter of administration may also be required to be obtained in relation to the properties situated in the State of Rajasthan in view of the intendment of the legislation inbuilt in Section 370 of the Act. The proceedings under Section 372 of the Act pending before the learned District Judge for issuance of succession certificate therefore is required to be held in abeyance/stayed till any final adjudication is made in the proceedings under Section376 of the Act. Learned Counsel for the petitioner therefore prayed that impugned order be set-aside and writ petition be allowed in terms of the application filed before the Court of District Judge. 5. Per contra, learned Counsel for the respondents argued that there is no prohibition in law under Section 372 of the Act for grant of succession certificate while simultaneously proceedings under Section 276 of the Act are pending for grant of probate/letter of administration. In fact, Section 215 of the Act clearly safeguards the interest of the contesting parties in this respect by providing that grant of probate or letter of administration in respect of an estate can be issued to supersede any certificate provisionally granted under Part-X of the Act in respect of any debts or security included in an estate. It was argued that Sub-section (3) of Section 373 of the Act provides that if the Judge cannot decide the right to the certificate without determining questions of law or fact which seem to be too intricate and difficult for determination in a summary proceeding, he may nevertheless grant a certificate to the applicant if he appears to be the person having prima facie best entitlement thereto. It was argued that applicants in the petition filed under Section 372 of the Act are the mother, son and daughter of the deceased 'Maharaj' Jagat Singh who are prima-facie best entitled to the grant of succession certificate. In view of Section 215 of the Act, if eventually probate/letter of administration is issued in whatever form in a proceeding under Section 276, the same shall in any case supersede the succession certificate granted in proceedings under Sections 372 of the Act in Part-X of the Act. No prejudice would therefore be caused to the petitioner on continuation of the proceedings. Even otherwise, she being one of the applicants, would be the beneficiary of the succession certificate which may be granted by the Court. It was further argued that petitioner having deposed in the Court in favour of grant of succession certificate and other brothers having also consented to the issuance of the same, cannot be now permitted to resile from that stand and withdraw even if the the proceedings under Section 276 of the Act are separately pending. It was argued that in view of the scheme of the Act, an application filed under Section 372 of the Act does not operate as bar on continuation of separate proceedings under Section 372 of the Act. It was further argued that Sections 212 and 213 of the Act are not applicable to the State of Rajasthan and, therefore, same cannot be applied to the present proceedings on the basis of supposed intention of the legislature. 6. Responding to the judgment cited by the learned Counsel for the petitioner in Smt. Roopa Bai supra, with regard to validity of Section 213 of the Act on the ground of discrimination, it was argued that he has not brought to the notice of the Court any decision rendered by the Larger Bench. Relying on the judgment of the Supreme Court in Clarence Pais and Ors. v. Union of India , Shri D.K. Malhotra, the learned Counsel for the respondents argued that the Supreme Court in that case negatived the argument of discrimination. Shri D.K. Malhotra, learned Counsel for the respondents while relying on the judgment of the Supreme Court in Madhvi Amma Bhawani Amma and Ors. v. Kunjikutty Pillal Meenakshi Pillai and Ors. further argued that Supreme Court while considering the provisions of Section 372 of the Act, held that proceedings of that Section for grant of succession certificate would not create a bar for any party to raise the same issue in a subsequent suit and that the decision in such succession certificate proceedings does not operate as res-judicata. Relying on the Division Bench's judgment of this Court in Balkishan and Anr. v. Prabhu and Ors. , learned Counsel for the respondents argued that in that case also this Court in similar circumstances held that the plaintiff is entitled to succeed to the property of the deceased in case of intestacy and the defendant cannot defeat the plaintiff's right by merely saying that under a will of the deceased the property is bequeathed to him. Learned Counsel for the respondents also relied on the judgment of Allahabad High Court in Smt.Pitmo v. Shyam Singh in which it was held that a probate is not necessary for the establishment of a right under a will by a Hindu where the provisions of Clauses (a) and (b) of Section 57 are not attracted and therefore Section 213 would have no application. Section 57 would be attracted only where Sections 212 and 213 apply. Shri D.K. Malhotra, learned Counsel for the respondents also relied on the judgment of Supreme Court in Mrs. Hem Nolini Judah v. Mrs. Isolynelean Sarojbashini Bose and Ors. and argued similar argument as raised hereinabove, was also rejected in that case. Learned Counsel for the respondents submits that when in the State of Rajasthan, the probate/letter of administration is not required to be obtained, the prayer seeking stay of the proceedings under Section 372 of the Act would rather seem too far off the mark. It was therefore submitted that the writ petition be dismissed. I have given my thoughtful consideration to the arguments advanced by the learned Counsel for the parties and perused the material on record and respectfully studied the cited case law. 7. Sole basis on which prayer for suspending proceedings before the District Judge under Section 372 is founded is the supposed intention of the legislature said to be contained in the provisions of Section 370 of the Act. Section 370, inter-alia provides that succession certificate shall not be granted under this Part with respect to any debt or security to which a right is required by Section 212 or Section 213 to be established by letters of administration or probate. When a close scrutiny of this section is made, it becomes obvious that a succession certificate with respect to any debt or security shall not be granted under Part-X of the Act with respect to which a right is required by Sections 212 and 213 to be established by letter of administration/probate. Issuance of succession certificate can be thus denied only if right on which such claim is based, is required to be first established by letters of administration/probate issued under Section 212 or 213 of the Act. Everything therefore would turn on the interpretation of the words "a right is required" by Section 212 or 213 "to be established by letters of administration/probate." Section 213 inter-alia provides that no right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in India has granted probate of the Will under which the right is claimed, or has granted letters of administration with the Will or with an authenticated copy of the Will annexed. This is reflected from Sub-section 2(i) of Section 213 provides that in the case of Wills made by any Hindu, Buddhist, Sikh or Jain where such Wills are of the classes specified in Clauses (a) and (b) of Section 57; and Sub-section 2(ii) which provides that in the case of Wills made by any Parsi dying after the commencement of the Indian Succession (Amendment) Act, 1962, where such Wills are made within the local limits of the territorial jurisdiction of the High Courts at Calcutta, Madras and Bombay, and where such Wills are made outside those limits, in so far as they relate to immoveable property situated within those limits, no right as executor or legatees can be established in any Court, unless probate or letter of administration of the will is granted by a competent Court. This controversy was settled long ago by a Division Bench of this Court in Sunderlal and Teeja v. Nena, D.B. Civil Regular First Appeal No.83 of 1952 decided on 16/11/1954 referred to in the case of Mst.Jadav v. Ram Swarup 1960 RLW 685 and Sultan Singh v. Brijraj Singh 1997(1) WLC 368 holding that probate would not be required to be obtained for enforcement of the will in so far as the State of Rajasthan is concerned. These decisions were approvingly followed recently by the Division Bench of this Court in Mukund Bihari Sharma v. Satya Narayan (D.B. Civil Special Appeal (Writ) No. 1232/2006 decided on 2/4/2007 wherein, the Division Bench held that in the State of Rajasthan, it is not necessary to obtain probate or letters of administration of the will as otherwise required under Section 213 of the Act. When the law which has developed on the subject is otherwise available, contention of the petitioner that requirement of obtaining probate or letter of administration should be insisted, on the basis of supposed intention of the legislature to be inferred in Section 370, cannot be accepted. 8. Adverting now to the argument that even if Section 213 read with Section 57 has not made mandatory for the concerned parties to obtain letter of administration in respect of the properties, which are subject-matter of the will, concerned party can nevertheless approach the Court for obtaining the probate/letter of administration, for there is no prohibition or bar in the law, though this issue directly does not arise for decision in the scope of the present petition where the order refusing to stay the proceedings under Section 372 of the Act is impugned. But indirectly it does arise because the petitioner is inviting this Court into holding that since there is no bar contained in any of the provisions of the Act for initiating proceedings to obtain probate/letter of administration in the State of Rajasthan and when such proceedings have actually been initiated, the proceedings under Section 372 of the Act should remain halted till conclusion of the proceedings under Section 276, which proceedings in view of the contest between the parties have now been ordered to be proceeded as a regular suit. Section 276 merely provides for particulars and details which are required to be furnished in the petition for probate. But then, this argument is again founded on the supposed intention of the legislature as put by the learned Counsel for the petitioner. In fact, no such intention is discernible from reading of provisions of Section 370. What is more, an analytical examination of Section 370 read with Section 213 and 57, renders the finding of an otherwise expressed intention of the legislature that there shall be no requirement of obtaining probate or letters of administration by a Hindu, Buddhist, Sikh and Jain in the territory of the States other than the States of Bengal, Madras and Bombay. Proceedings of a petition filed under Section 372 cannot be therefore stayed on taking such an overstretched interpretation of Section 370 of the Act. In fact, Section 215 of the Act, supra, gives the rational of the scheme of the enactment when it provides that grant of probate or letters of administration in respect of an Estate shall be deemed to supersede any certificate provisionally granted under Part-X in respect of any debts or securities included in the State. Section 370 and 372 both being of Part-X of the Act, obviously therefore the probate or letters of administration, if any, granted in a later point of time would supersede a provisionally granted succession certificate. There would be thus no reason to suspend the proceedings under Section 372. As rightly held by the Hon'ble Supreme Court in Madhvi Amma Bhawani Amma, supra, that any decision made in proceedings under Section 373 of the Indian Succession Act, 1925 for grant of succession certificate would not create a bar to raise the same issue again in a subsequent suit and the decision in succession certificates proceedings in that event would not operate as resjudicata. 9. There is yet another reason why proceedings under Section 276 cannot be override the proceeding Under Section 372 of the Act which is that while on one hand, the rights to debt and security in the estates of deceased 'Maharaj' Jagat Singh are being claimed on the basis of a will which right is yet to be crystalized in a proceeding under Section 276. And as per the interpretation made above and In view of Section 212 and Section 57 of the Act letter of administration and probate are not strictly required, the petitioner having voluntarily Initiated such proceeding not being barred. On the other hand, proceedings Initiated under Section 372 are at the instance of natural mother I.e. the petitioner herself and natural son and daughter of late 'Maharaj' Jagat Singh. According to the spirit of subsection (3) of Section 373, If the Judge cannot decide the right to the certificate without determining questions of law or fact which seem to be too intricate and difficult for determination in a summary proceeding, he may nevertheless grant a certificate to the applicant if he appears to be the person prtma-facte best entitled thereto and the applicants In a petition under Section 372 are claiming succession certificate being legal heir of the first degree of the deceased as per the law, proceedings of the petition filed under Section 3 72 of the Act cannot be stayed at the asking of the petitioner just because petition filed at her Instance under Section 276 has been ordered to be tried as a regular suit. 10. In view of what discussed above, I do not find any legal infirmity in the impugned-order dated 11/5/2007 passed by the learned District Judge, Jaipur City, Jaipur which can be described as an error apparent on the face of record so as to justify interference by this Court in the scope of writ of certiorari. There being no merit in the petition, the same is dismissed though with no order as to costs. Records of the case may be forthwith transmitted to the Court of the District Judge.

Author: M Rafiq

Rajmata Gayatri Devi vs Distt. Judge And Ors. on 27 September, 2007

Rajasthan High Court

ORDER A.K. Shrivastava, J. 1. This appeal has been filed under Section 47 of the Guardians and Wards Act, 1890 (hereinafter referred as 'the Act') against the order dated 25-8-2004 passed by the District Judge, Raisen, in Misc. Civil Case No. 32/2003. 2. An application under Section 7 of the Act was filed by the present appellant that he and respondent were legally married in accordance with the customs of the Muslim Law on 1-11-1999. The marriage was performed at Raisen. The appellant is from Bhopal. After the marriage took place the appellant and respondent resided at Bhopal. Thereafter some disputes arose between the appellant and the respondent and which is not the subject-matter of this appeal, however, the position which exists today is that the appellant is residing at Bhopal along with his family and respondent (wife) is residing with her parents at Raisen. This fact is no more in dispute that on 29-4-2001 female child was born from the wedlock of the parties. The birth took place at Bhopal. 3. As per the case of the appellant, after the relations became strained between the parties the wife left the company of her husband and started living at Raisen since 12-6-2001. She also carried with her minor female child Mariam alias Juhi. Thereafter on 18-12-2001 the brother of respondent brought Mariam alias Juhi to appellant's house and at that time she was only seven months and 15 days old and handed over her to the appellant by saying that he should take care of his daughter. The appellant apprehended that some mischief may be caused on behalf of his wife and, therefore, he lodged a report on 18-12-2001 in police station. Since 18-12-2001 Mariam is living with the appellant. On these premised pleadings, it has been prayed by the appellant in his application filed under Section 7 of the Act that being the natural father and guardian of Mariam alias Juhi, he be declared as the guardian of minor child Mariam. 4. A reply was filed on behalf of the wife that she was living with appellant up to 2002 at Bhopal. She is still residing at Bhopal. According to her in the month of June, 2001 her husband (appellant) left her to her parents house. On the occasion of Id festival of 2002 the appellant under the false pretext, to wander Mariam succeeded to take her out from the parents' house of the respondent and thereafter took Mariam to his house and since then she is living with him. The respondent submitted report and also filed application under Section 97, Cr. P.C. and thereafter the appellant has filed this application. It has been prayed by her that this application be dismissed and innocent female child Mariam be delivered to her. 5. The Court below after framing the issues and recording the evidence of the parties came to hold that Mariam alias Juhi is residing with the appellant since 18-12-2001. The story put forth by the respondent that on the Id festival the appellant managed to take Mariam with him is not proved. However, the Court below came to hold that respondent had not abandoned her child. The Court below while deciding issue No. 2 also came to hold that respondent was sitting idle is not proved, on the contrary she was doing the needful to obtain Mariam. The Court below though dismissed the application of appellant but did not direct to deliver the female child Marium alias Juhi to the respondent for the simple reason that the wife (respondent) has not filed a separate application under the Act. Hence this appeal by the husband. 6. In this appeal, Ku. J. Aiyer, learned counsel for the appellant has argued that Mariam is residing with the appellant since 18-12-2001 and till the application was filed by him under Section 7 of the Act, respondent did not care to file appropriate application to take the custody of minor Mariam. It has also been put forth by her that in an application filed under Section 7 of the Act, paramount consideration is the welfare of the minor child. According to her, since 18-12-2001 Mariam is residing with the appellant, therefore, the Court below erred in rejecting the application. She has also submitted that Mariam can be looked after in better way by the appellant instead of respondent, because, he is serving as a teacher while respondent is doing nothing and her father had also retired. In support of her contention learned counsel has placed reliance on Smt. Radha alias Parimala v. N. Rangappa, AIR 2004 Kant 299. 7. On the other hand, Shri A. S. Usmani, learned counsel for the respondent, has argued in support of the impugned order. Shri Usmani has also invited my attention to Section 352 of the Mahomedan Law and has contended that since the age of Mariam is only four years today, therefore, respondent is entitled to the custody of Mariam as she had not attained the age of puberty. Learned counsel has also invited my attention to a single Bench decision of this Court in the case of Sweta v. Dharma Chand Khaddar, and has contended that even if no application was moved by the respondent under Section 7 of the Act and if she had made a prayer in the reply to the application filed under Section 7 of the Act by the appellant, the custody of Mariam could be given to her. Shri Usmani, learned counsel for the respondent, has further placed reliance on the decision of the Supreme Court in the case of Smt. Manju Tiwari v. Rajendra Tiwari, and also a decision of Kerala High Court in the case of Suharabi v. D. Muhammed, On these premised arguments it has been prayed by learned counsel for the respondent that this appeal be dismissed. 8. There is no dispute in regard to this fact that the parties are the biological parents of female child Mariam alias Juhi. It is also no more in dispute that the date on which the application under Section 7 of the Act was filed, the said minor child was in the custody of the appellant. Ms. J. Aiyer, learned counsel for the appellant, by placing reliance on the decision of Smt. Radha alias Parimala, (supra) has contended that it is the prime duty of the Court to do all acts and things necessary for the protection of minor for they cannot take care of themselves. The welfare of the minor must be the paramount consideration of the Court and not the wishes of the parties who seek custody or guardianship of the minors. There is no quarrel to this preposition. I fully agree with the submissions of learned counsel that the word "welfare of the child" admits of no strait-jacket yardstick. It has many facets, such as financial, educational, physical, moral and religious welfare. The question, where the welfare of the minor lies should be answered after weighing and balancing all factors germane to the decision-making, such as relationships, claims and wishes of parents, risks, choices and all other relevant circumstances. The answer lies in the balancing of these factors and circumstances and determining what is best for the minor's total well-being. But the question is whether all these things exists in the father only and not in the mother. The contention of learned counsel for the appellant is that since mother (respondent) is not an earning person, therefore, she cannot take care of minor child Mariam alias Juhi properly. According to me, this cannot be a logic to disentitle her from taking the minor child in her custody. Except this ground, no other ground has been raised by learned counsel for the appellant. In the application filed under Section 7 of the Act, there is no averment as such though the appellant has stated this fact in his testimony. It be seen that the mother is not an illiterate lady as she has stated in para 5 of her deposition that she is having M.A. degree with her. She has further stated that she will take care of her daughter and will provide her education. 9. Custody of minor is a sensitive issue. It is also a matter involving the sentimental attachment. Such a matter is to be approached and tackled carefully. A balance has to be struck between attachment and sentiment of the parties towards the minor child and the welfare of minor which is a paramount Importance. (See R.V. Srinath Prasad v. Nandamuri Jayakrishna, . 10. Section 17 enumerates the matters which the Court must consider in the matter of appointment of guardians. It is emphasised in both these sections that the welfare of the minor must be the paramount consideration in appointment or declaration of any person as guardian. The cardinal principle is that minors cannot take care of themselves so that the State as pater patrice has powers to do all acts and things necessary for their protection. It is, therefore, the primary duty of the Court to be satisfied what would be for the welfare of the minor and to make an order appointing or declaring a guardian accordingly. It is settled law that the word "welfare" must be understood in its widest sense so as to embrace the material and physical well-being; the education and upbringing; happiness and moral welfare. The Court must consider every circumstance bearing upon these considerations. (See Rajkumar v. Indrakumari, 1972 Jab LJ 1045). 11. In the present case the parties are Mahomedan and, therefore, rights, duties and liabilities of guardians have also been dealt with in detail under the Mahomedan law, the source of which are the Koran and Hadis. Under the Mahomedan Law, while the father is the sole guardian of minors, practically all the authorities on Mahomedan law recognised the right of the mother to hizanat (custody) of the minor children. It is a right to rear up children. There is no material on record that whether parties are governed by Hanafi law or they are Shias. A Hanafi mother is entitled to custody of male children up to the age of seven years and up to the age of puberty in case of female children. A Shia mother is entitled to such custody up to the age of two years of a male child and seven years when the child is female. After the child has attained the above mentioned age, the custody belongs to the father. In this regard Section 352 of the Mahomedan Law is quite relevant. Apart from this, Section 351 of Mahomedan Law also speaks about the welfare of the minor. On going through the evidence and as well as the findings of the trial Court, it cannot be said that any. dent can be put on the welfareness of Mariam alias Juhi if she is given in the custody of her mother. I do not mean to say that father may not keep her well or Mariam alias Juhi, will not be cared by the father if she is given in the custody of her father. He may keep his minor daughter Mariam more comfortably than mother. There is no evidence on record in order to show that the father has no love and affection to his daughter. On the other hand, it has come in the evidence that the father is very much affectionate to Mariam alias Juhi. But, looking to the age of Mariam, as today her age is only four years, it would be appropriate to give her in the custody of her mother. Merely I am passing such an order would not mean that the degree of love and affection of the father towards Mariam alias Juhi is less. But looking to the personal law of Mahomedan, I am constrained to pass such an order. Though it has been rightly said that the paramount consideration in the cases coming under the Act for appointment of guardian should be the welfare of the minor, but, it must be as far as possible consistent with the personal law relating to the parties. The preferential right of any person to the guardianship under the personal law cannot be ignored unless he/she is totally unfair to be appointed as guardian and Court must necessarily considers his/her claims in preference to any other. 12. The dominant matter for consideration of the Court is the welfare of the child. But the welfare of the child is not to be measured by money or by physical comfort only. The word must be taken in its widest sense. In this context, I may profitably rely the decision of this Court in the case of Mohammed Mehboob Khan v. Rahmit Bi, (1977) 2 MPWN 79. 13. The trial Court while deciding issue Nos. 1 and 2 came to hold that respondent was not sitting idle and she was pursuing the matter in order to get minor child Mariam alias Juhi back to her custody though she approached a wrong forum by filing application under Section 97, Cr. P.C. which was rejected. 14. In the reply to application under Section 7 of the Act a prayer was made by respondent to give the custody of minor child Mariam alias Juhi to her, the same was rejected by the trial Court on the ground that she had not filed any application under Section 7 of the Act as such the custody of minor child Mariam alias Juhi cannot be given to her in view of Sections 8 and 10 of the said Act. On going through Section 8, it is revealed that a Court shall not pass any order except on the application made by person mentioned in this section. It be seen that paramount consideration is the welfare of the child. A prayer to give in custody the minor child was made in the reply and, thus, it would amount to an application with prayer to give the minor child in her custody. So far as applicability of Section 10 of the Act is concerned, the reply to application of Section 7 in which prayer to give child in her custody has been made there is verification also in terms of provisions of the Code of Civil Procedure. The other requirements of Section 10 are also there in the reply and, therefore, merely because the prayer has been made in the reply would not in itself is a ground to deny the delivery of custody of minor child Mariam alias Juhi to her mother. In this regard the decision of Sweta (AIR 2001 MP 28) (supra) relied on by learned counsel for the respondent, throws sufficient light. This Court on 13-1-2005 directed to deliver the custody of Mariam alias Juhi to respondent and she was allowed to keep her till next date and in pursuance to the said order minor child Mariam alias Juhi is in custody of her mother. 15. In view of above, the appeal is being disposed of on the following terms : (i) The custody of Mariam alias Juhi shall be with her mother (respondent) till she attains the age of puberty if the parties are governed by Hanafi law and appellant shall be free to file application to take back the custody of his daughter Mariam alias Juhi after that age; (ii) if the parties are governed by Shia law, mother would be entitled to retain the custody of Mariam alias Juhi up to the age of seven years and the appellant shall be free to file application to take back the custody of his daughter Mariam alias Juhi after that age; (iii) the respondent-mother shall make suitable arrangement to allow the father (including paternal grand father and grand mother) of the girl in meeting with her on first and third Sunday of every month and the meeting on those days shall commence from 8.00 a.m. to 8.00 p.m.; (iv) if the father wants to meet her daughter on any other day he shall be free to go to the place of respondent and may meet her daughter by giving prior information at least one day in advance; (v) on the festival of both Id the father shall be allowed to meet her daughter from 8.00 a.m. to 8.00 p.m.; (vi) if the father observes that adequate education is not being provided by the mother (respondent) in good educational institution, he shall be free to get Mariam alias Juhi admitted in good educational institution and if necessary, may provide boarding facilities to her in that institution. The expenses in that case shall be borne by the father; (vii) the word "meeting" would mean to shower every kind of love and affection which ordinarily a father showers on her daughter including going to picnic, cinema, garden, eating food in restaurant etc. etc.; (viii) if the respondent creates any hindrance or violates any of the directions which I have mentioned hereinabove, the appellant shall be free to file necessary application in the Court below under the Act to take back the child in his custody. 16. The impugned order is, accordingly, modified and this appeal is disposed of accordingly. The parties are directed to bear their own costs.

Author: A Shrivastava

Wazid Ali vs Rehana Anjum on 4 April, 2005

Madhya Pradesh High Court

JUDGMENT K.C. Sharma, J. 1. This is an application for restoration which indicates gross latches on the part of the appellant-State. The special appeal, which has been preferred against the judgment and order of the learned Single Judge upholding the award passed by the labour Court. Kota was filed with certain defects. Which were not rectified even after two years of the filing of the special appeal. The special appeal was filed in the year 2002 and thereafter the matter was listed for curing the defects in the year 2004 as the defect had not removed within two years. Hence, a peremptory order dated 18.10.2004 was passed by Coordinate Bench to remove the defects within a period of one week. The same also was not complied, as a result of which, the appeal stood dismissed for non-compliance of the peremptory order. The appellant-State thereafter did not move in the matter as no application for restoration was filed within the prescribed period of limitation and when the limitation expired, the application for restoration was filed along with an application for condonation of delay. The application for condonation of delay was listed on 24.1.2007 and in spite of absence of sufficient cause, the delay in filing the same was condoned. This is how this restoration application has been listed for orders. 2. Having heard the counsel for the parties, we have been able to gather that no sufficient cause had been shown for condoning the delay in filing the application nor any reason is found for not complying with the peremptory order granting opportunity to cure the defect which was lying on the defect side for more than two years. Yet, when a peremptory order was passed granting further opportunity to cure the defects, that also was allowed to go in default. But, on account of the pendency of this appeal, the respondent-workman has been suffering for no fault on his part as although a contested award has been passed in his favour, which has been upheld by the learned Single Judge, the appellant-State has unnecessarily dragged the matter and is now interested in restoration of this appeal, which will entangle the respondent-workman again into a protracted litigation. Although, time and again, the delay in disposal of cases is attributed to the courts and lawyers by the State authorities, this is not an isolated incident where protracted litigation due to its pendency is the creation of an indifferent of casual approach of the State. 2.1 As no sufficient cause has been shown for restoration of this appeal which suffers from grave latches referred to hereinbefore, we do not consider it appropriate to restore this special appeal. The application for restoration, therefore, stands rejected.

Author: K Sharma

State Of Rajasthan vs Shanker Lal And Ors. on 12 April, 2007

Rajasthan High Court

Court No. - 22 Case :- SERVICE SINGLE No. - 4877 of 2010 Petitioner :- Shripal Respondent :- State Of U.P. Through Secy. Industrial Devp. Govt. Lko. Petitioner Counsel :- Piyush Mishra Respondent Counsel :- C.S.C.,Prashant Kumar Hon'ble Satyendra Singh Chauhan,J. Put up tomorrow on the request of learned counsel for the petitioner. Order Date :- 20.7.2010 RBS/-

Shripal vs State Of U.P. Through Secy. ... on 20 July, 2010

Allahabad High Court

JUDGMENT D.P. Wadhwa, J. (1) These two applications have arisen out of a suit fled by the plaintiffs numbering three for recovery of about Rs. 6 lacs from the defendant. Ja 9496189 is by the plaintiff and is under Order 38, Rule, I, Order 39, Rules I and 2 and Section 151 of the Code of Civil Procedure (for short the Code'). The other application Ja 82/90 is by the defendant and is under Order 38 Rule I and Section 151 of the Code. (2) Plaintiff No. 3 is stated to be the proprietor of plaintiffs No. 1 and 2. Defendant is styled as Chorus Girl Inc., New York, U.S'.A. and has been sued through Mrs. Nina Batra without describing as to what she is in the defendant company. The whole body of the plaint does not say as to what position Mrs. Nina Batra is holding in the defendant, though it is stated that orders had been placed on behalf of the defendant by Mrs. Nina Batra for supply of certain readymade garments by the plaintiffs to the defendant. The suit is for recovery of price of the goods and interest accrued thereon. (3) Along with the suit, the plaintiffs filed an application (IA 9496189) in which apart from referring to the averments made in the plaint it was stated that the defendant had no inten, lion to pay the balance outstanding amount which was evident from the conduct of Mrs. Nina Batra inasmuch as though she was presently in Delhi, was avoiding to talk to the plaintiffs and her attitude was even abusive. It was stated that plaint's seriously apprehended that defendant will be leaving India on any day and would never return thereafter. It was also mentioned in this application that intention of the defendant was to delay the claim of the plaintiff and in order to delay the process of the court and obstruct its proceedings the defendant was planning to leave the country within a day or two without paving the outstanding amount due to the plaintiffs from the defendant. Reference was also made to the Foreign Exchange, Regulation Act to contend that plaintiffs might have to face prosecution or some penal action under that Act. The application, however, did not specify for what fault of the plaintiffs., if any, action could have been taken under that Act. It was, therefore, . prayed that defendant be restrained from leaving the country for' which her arrest before judgment was necessary, The plaintiffs prayed that warrants of arrest directing the arrest of Mrs. Nina Batra be issued directing her to be present in court to show cause as to why she could not furnish security for her appearance and/or in the alternative she be directed to deposit the suit amount in court. There was yet another alternative prayer that her passport be seized and she be restrained from leaving India. The suit and the aforesaid application were filed on 28th December, 1989. On this day itself the court while issuing summons in the suit passed the following orders on. the application : ON the basis of the averments raised in the application supported by the affidavit, I am satisfied that the defendant is about to leave India which is likely to result in the obstruction of the execution of the decree that may be passed against her. Under these circumstances, let a warrant of arrest be issued against the defendant and to bring before the Court to show cause why she should not furnish security for her appearance. The warrant shall not however, be executed if the defendant pays to the officer entrusted with the execution of the warrant a sum of Rs. 5,99.564. The S.H.O. concerned to been trusted with the execution of the warrant. The warrant to be returnable on 9th January, 1990. The order to be released today. (4) In pursuance of this order Mrs. Nina Batra was arrested and was produced before the learned judge by the S.H.O Karol Bagh, New Delhi, on the following day when the following order was made : THE defendant be released if she fetches security in the sum of Rs. 6,00,000 to the satisfaction of D.R. in charge today, failing which she be committed to civil prison. Expenses to he borne by the plaintiff. To be produced on next- hearing.'' (5) Tn pursuance of this order Mrs. Nina Batra furnished security of one Mr. Radha Krishan Batra in the sum of Rs. 6 lacks and sought her release. The defendant then filed an application on 6th January, 1990 (IA 82190) staling that the defendant was an incorporate company under the laws of America having its registered office at New York, Usa and Mrs. Nina .Batra was Secretary of that company. In the application the defendant also mentioned as to how the letter of credit was opened and how it could not be honoured, l was, however, stated that Mrs. Nina Batra was not the defendant in the case and no order for her arrest could have. been passed and she could not have been asked to furnish security in terms of Order 38. Rules I and 5 of the Code. The defendant, therefore, prayed that the order made on 28th December, 1989 in Ia 9496189 be recalled and cancelled and such further orders be made as in the circumstances of the case might appear to be appropriate. (6) On notice being Issued of this application (iA 82/20). the plaintiffs have filed their reply. Now, it is stated that Mrs. Nina Batra was the President of the defendant company which was incorporated in 1981 and 100 per cent capital stock of the defendant was held by Mrs. Nina Batra. It was. therefore, stated that she had substantial interest in the defendant and further that she had always been acting on behalf of the defendeant. It was also stated that the defendant could not file such an application and the application not being on behalf of Mrs, Nina Batra deserved dismissal. The application. of course, is signed by Mrs. Nina Batra and is supported by her affidavit Mrs. Nina Batra also authorized the counsel to appear on behalf of the defendant. signing the power of attorney in his favor as Secretary of the defendant. (7) Under Order 38. Rule I of the Coded, so far a.s it is relevent to the present controversy, the court, if satisfied by affidavit or otherwise, that the defendant was about to leave India under circumstances affording reasonable probability that the plaintiff would or might thereby be obstructed or delayed in the execution of any decree that might be passed against the defendant in the suit. could issue a. warrant to arrest the defendant and bring him before the court to show cause why he should not furnish security for his appearance. There is a proviso which says that defendant shall not be arrested if he pays to the officer entrusted with the execution of the warrant any sum specified in the warrant as sufficient to satisfy the plaintiff's claim; and such sum shall be held in deposit by the court until the suit is disposed of or until further order of the court. Under Rule 2 of Order 38 of the Code if the defendant fans to.show such cause, the court can order him either to deposit money in court or other property sufficient to answer the claims against him or to furnish security for his appearance appeal at any time when called upon during the pendency of the suit and until satisfaction of any decree that might be passed against him Under sub-rule (2) of this Rule every surety for the appearance of a defendant shall bind himself, in default of such appearance to pay any sum of money winch the defendant might he ordered to pay in the suit. Rule 3 prescribes t he procedure when a surety could be discharged on his making an application during the pendency of the suit. Rule 4 prescribes the procedure where the defendant fails to furnish security and in that eventuality the court may commit him to civil prison until the decision of the suit or, where decree is passed against the defendant, until the decree has been satisfied. (8) The law regarding arrest and imprisonment is contained in Sections 51, 55 to59. 135. 135-A and 136. Order Xxi, Rules 21, 37 to 40, Order 38, Rules I to 4 of the Code. In the present controversy I am, however, concerned with Section 56 and Order 38. Rules I to 4 of the Cods. Under .Section 56 of the Code there is a prohibition of arrest or detention of a woman in execution of decree for the payment of money. (9) It does appear to me that two grounds [A 82/90 filed by defendant, must succeed and these "are (i) Mrs. Nina Batra is not a defendant and no order under Rule I of Order 38 of the Code could have been passed; and (ii) she being a woman could not have been arrested or detained. (10) I think. I have to see the circumstances existing at the time when the main orders were made. It was clear that the defendant was an incorporate company under the laws in USA. It, therefore, had a separate entity. The defendant was being sued only through Mrs. Nina Batra and. as noted above, there was nothing on record to show as to what status Mrs. Nina Batra enjoyed in the defendant company. It was only when application Ia 82190 was filed that it was brought to the notice of the court that she was only a Secretary in the defendant company. Provisions of Rule I or Order 38 of the Code being stringent have to be strictly construed. Even a bare reading would show that an order under this provision could be made only against the defendant and against no one else. Admittedly, Ms. Nina Batra is not a defendant. Now, if under Section 56 of the Code the court shall not order the arrest or detention in civil prison of a woman in execution of a decree for the payment of money, it cannot certainly order her arrest in a suit feed for recovery of money where a decree yet to be passed. If literal meaning is given to Rules 1 and 4 of Order 38 of the Code. it would mean that a woman can be arrested in a money suit and if she fails to furnish any security or pays the amount in court, she can be committed to civil prison until the decree is passed against her and not thereafter because under Section 56 of the Code she cannot be arrested and detained in execution of a decree for the payment of money. under Rule 4 of Order 38 of a person committed to civil prison has nevertheless to be detained until the decree passed against him is satisfied. This provision, therefore; cannot be applicable in the case of a woman. (11) I would therefore, hold that a woman carrot be arrested or detained in civil prison under Rule I of Order 38 of the Code. To me, it appears that the arrest of Mrs. Nina Batra was applied for on non-existent grounds and the application Ia 82190 has, therefore, to succeed. Consequently, order dated 28th December, 1989 passed in Ia 9496/89 is recalled and security bond furnished in pursuance of order dated 29th December, 1989 discharged. (12) Since, Ia 9496189 is directed against Mrs. Nima Batra only, this has also necessarily to fail and is dismissed Defendant is entitled to costs. Counsels fee Rs. 1000.

Author: D Wadhwa

Mschelska Mills Mothers vs Chorus Girl Inc. on 13 March, 1990

Delhi High Court

[Section 76(2)] [Section 76] [Complete Act]

Central Government Act

JUDGMENT Ashok Agarwal, J. 1. The present petition arises out of proceedings initiated by the respondent original applicant landlady under section 32P of the Bombay Tenancy and Agricultural Lands Act, 1948. The land in dispute originally bore Survey No. 97/1A/5. It was later formed into Galt No. 366. The land is situate at village Lohare, Taluka Wai, District Satara. It admeasures 35 gunthas out of which 28 gunthas are under cultivation and five gunthas are Pot Kharaba . The said land was originally owned by one Rama. He died leaving behind him two sons and two daughters. The eldest was Tukaram who was blind. Second was a daughter Vithabai. Third was a son Nathu who during his lifetime was insane. The fourth was a daughter Parvatibai who is the original applicant. Tukaram died on 27th April, 1976. Vithabai died on 18th December, 1977 and Nathu on 11th September, 1980. Tukaram during his life time on 11th March, 1976 executed a registered Will in favour of the applicant bequeathing various properties. The suit land, which is the subject matter of dispute under the present petition, did not form one of the properties which were bequeathed under the said Will. 2. On 21st December, 1956 i.e. prior to the Tillers day Tukaram filed an application No. 1037 of 1957 against the opponent under section 31 for possession. A notice in respect of the said proceedings was duly served upon the opponent and statement of the opponent was recorded in the said proceedings. On 7th November, 1957 the said application under section 31 was dismissed. 3. After the death of Tukaram which occurred on 27th April, 1976, mutation entry No. 295 dated 25th August, 1976 was certified in favour of the plaintiff in respect of several lands which were mutated in her favour. However, the suit land did not figure in the said mutation entry. On 5th May, 1977 the application filed an application under section 88-C for exemption certificate. The said application was filed against several tenants including the opponent. However, the suit land did not figure in the said application. In the said proceeding the statement of the opponent was recorded on 29th July, 1977 wherein he stated that he had no concern with the land which was the subject matter of the application under section 88-C. By a judgment and order dated 30th June, 1978 an Exemption Certificate under section 88-C was issued in favour of the applicant. The said Certificate did not relate to the suit land but inrespect of the other lands which were subject matter of the application. The said certificate was sought to be challenged by the tenants as also by the opponent. But the same was confirmed right upto this Court. 4. On 1st August, 1977 the opponent filed an application under section 32-G for purchase of the suit lands. As is clear from the admission of the applicant a notice in respect of the said application was duly served upon her on 12th December, 1977. A fresh notice in respect of the said application was also served on 17th April, 1978. On 26th April, 1978 the applicant appeared in the said proceedings. It is at this stage that the applicant on 4th May, 1978 filed instant application under section 32-p for possession. It was the case of the applicant that the opponent had failed to exercise the right of purchase under section 32-P within a period of 2 years from the date of death of Tukaram. The opponent had, therefore, forfeited his right to purchase. Consequently the applicant was entitled to possession under section 32-P. In the said proceedings the applicant applied for stay of the further proceedings under section 32G and the said proceedings were accordingly stayed. 5. The aforesaid proceedings under section 32-P were heard and finally disposed of by the Tahsildar, Wai, who by his judgment and order dated 9th April, 1981 held that the opponent had forfeited his right of purchase as he had failed to intimate his intention of purchase within two years of the death of Tukaram. After recording the said finding, the learned Tahsildar proceeded to pass an order for delivery of possession of the suit lands to the applicant. 6. Being aggrieved by the aforesaid judgement and order dated 9th April, 1981 of the Court of Tahsildar, Wai in Tenancy Case No. No 32-P Lohare, No. 131/172/78 the opponent preferred an appeal in the Court of the Sub Divisional Officer, Mahableshwar Division, Wai Tenancy Appeal No. 16 of 1981 wherein by a judgement and order dated 30th November 1981 the order of the trial Court was confirmed and the appeal was dismissed. Being aggrieved the opponent preferred before the Maharashtra Revenue Tribunal, Revision Application No. MRT. NS. III. 2/82 (TEN. B. 50/82) wherein by a judgment and order dated 30th August, 1983 the revision application was dismissed, with no orders as to costs. Taking exception to the aforesaid concurrent findings of the three authorities, the original opponent has preferred the present writ petition. 7. Having heard Shri R.M. Agarwal the learned Advocate appearing in support of the petition and Shri S.V. Page appearing on behalf of the original applicant, I am clearly of the view that all the three authorities have clearly erred in granting the application of the applicant under section 32P and ordering possession of the suit land in favour of the applicant. The facts stated above will show that Tukaram the predecessor in title of the applicant had on 21st December, 1956 filed an application bearing No. 1037 of 1957 under section 31 for possession. The notice, which was issued to the opponent in respect of the said application, is on record. Similarly the extract of the register of applications under the Tenancy Act in respect of the said proceedings is also on record. The same shows that an application was filed by Tukaram against the opponent in respect of the suit land and it further shows that the said application was dismissed on 7th November, 1957. A combined reading of the said notices and the extract of the Register shows that Tukaram had on 27th December, applied for possession under section 31 and the same was dismissed on 7th November, 1957. What follows from the said dismissal is that the opponent has become the deem purchaser of the suit land as on 7th November, 1957. In such a case the provisions of section 32F(1)(a) have no application and the tenant's right to purchase is governed by section 32(1)(b) and not by section 32F (1)(a). Hence the opponent will be entitled to be declared a deem purchaser automatically on the rejection of the applicant's application under section 31. See Patel Chinibhai Dajibha v. Narayanrao Khanderao Jambekar, reported in A.I.R. 1985 S.C. 1457; Nago Dattu Mahajan v. Smt. Yeshodabai Huna Mahajan, reported in A.I.R. 1985 S.C. 1457; reported in 78 Bom. L.R. Page 1427. 8. Shri Page, the learned Advocate appearing on behalf of the applicant, however, contended that the judgment dismissing the applicant's application under section 31 is not on record. It is, therefore, not possible to find out the grounds on which the application was rejected. He also submitted that the present contention was not raised either in the trial Court or in the Appellate Court but was raised for the first time before the Tribunal. In my judgement, the fact of the applicant having made an application under section 31 and the same having been dismissed is a matter of record. The same is abundantly clear from the copy of the notice of the said proceedings that was served upon the opponent and extract of the register in respect of the application under the Act. What follows therefrom is a consequence in law. If as a result of the dismissal of the application under section 31 of the opponent is entitled to become a deemed purchaser without anything more, such right cannot be frustrated on the technical pleas sought to be advanced by Shri Page. If we ignore the fact that the opponent was entitled to be declared as a deemed purchaser with effect from 1st November 1957 even then he would be entitled to purchase the suit land under section 32F(1)(a) of the Act. Tukaram who was a landlord under disability died on 22nd April, 1976. The opponent on 1st August, 1977 applied for purchase of the suit land. This was well within the period of two years provided under section 32F(1)(a). Once the opponent is shown to have exercised his right of purchase within the stipulated period the opponent would be entitled to purchase under section 32F. 9. Shri Page, however, submitted that though the opponent may have filed an application for purchase within the period of two years he has failed to give a notice of his intention to purchase to the applicant in the prescribed form within the said period. Since the opponent has failed to comply the provision of section 32-F (1)(a) the opponents right, if any, has been lost. He drew my attention to Form -10 prescribed under rule 20 in respect of the intimation of the desire to exercise right of purchase conferred by section 32-F or section 32-O. The said notice is required to be addressed to the landlord. Since there is a total absence of such a notice the opponent has forfeited his right to purchase. 10. In my judgement, there is no merit in the above contention. The notice of the application filed by the opponent under section 32-G was duly served upon the applicant on 12th December, 1977 and this is admitted by the applicant. The said notice was thus served on the applicant within a period of two years prescribed under section 32-F. Similarly the fresh notice which was served upon the applicant in respect of the said proceedings was served on 17th April, 1978 which also is within the period of two years from the date of death of Tukaram. A copy of the said notice is on record. In view of the said notices I am inclined to hold that there is sufficient compliance of the requirement on the part of the opponent to give intimation of his desire of exercising the right of purchase. The Tenancy Act is a social legislation intending to confer certain benefits to the tenants. Such benefits cannot be permitted to be frustrated on the ground that the tenant has failed to give an intimation of his desire of purchase in the prescribed form. If it is shown that there has been a due intimation of his desire to the landlord the same would be sufficient compliance of the requirement under section 32-F(1)(a) of the Tenency Act. Thus viewing the case in any angle the opponent will have to be declared to be a purchaser in respect of the suit land. 11. Shri Page further contended that the applicant in the present case is a certified landlord. After an exemption certificate was issued in favour of the applicants on 30th June 1978 the applicant was entitled to apply under section 33-P for possession of the entire suit land. According to Shri Page, the said right cannot be frustrated by the opponent by filing an application under section 32-G. 12. In my judgment, there is no merit in the above contention. The proceedings under section 88-C though directed against the opponent along with other tenants did not pertain to the suit land. The statement of the opponent was recorded wherein he stated that he had no concern with the lands which were the subject matter of the application. The certificate that was issued under section 88-C did not pertain to the suit land. Consequently no right accrued in favour of the applicant to apply for possession under section 33-P. 13. In view of the above discussion, I find that all the three authorities have misdirected themselves in arriving at the finding that the applicant is entitled to possession of the suit land. Even if it were to be held that the opponent has lost his right of purchase it was not open to the concerned authorities to straight-way direct the possession of the suit land without holding an enquiry under section 32-P. 14. In view of the aforesaid facts I hold that the instant application under section 32-P is not maintainable and is liable to be dismissed. I declare that the opponent is entitled to purchase the suit land under section 32-G. The proceedings under section 32-G which were stayed will now be proceeded with on their own merits and in accordance with law. 15. In the result, the impugned judgment and orders of all the three authorities are set aside. It is declared that the petitioner (original opponent) is entitled to purchase the suit lands bearing Galt No. 366(Survey No. 98/A) situate at village Lohare, Taluka Wai, District Satara. The Tahsildar, Wai will proceed with the proceedings under section 32-G for fixation of the purchase price. Rule is made absolute in the above terms. The Petitioner will be entitled to costs throughout.

Author: A Agarwal

Damu Dhondi Dhekane vs Parvatibai Hindurao Jagtap on 19 September, 1990

Bombay High Court

JUDGMENT Babu, J. 1. Leave granted. 2. The respondent who is working passed the impugned order would not be as a constable was driving the vehicle - Maruti Gypsy belonging to the Police department of the Slate of Punjab and the said vehicle met with an accident as a result of which one Suresh Kumar along with his wife named Poonam Uppal suffered injuries. Subsequently, Suresh Kumar succumbed to the same. A claim petition was filed before the motor accident claim tribunal which was allowed. An award was made on 25-4-1997 granting compensation of Rs.3,84,000/- with interest at the rate of 12/o per annum from the dale of the petition till payment was awarded to the claimant. 3. It was alleged that a sum of Rs.5.84,000/- (sic) (including interest) has been paid by the government to the claimant pursuant to the direction given in the award made by the Motor Accident Claim Tribunal. A show-cause notice was issued to the respondent asking him as to why the aforesaid amount be not recovered from his salary. He filed a reply and after an inquiry the senior Superintendent of Police directed effecting the recovery of the said amount in monthly instalments of Rs.2,000/- per month and the balance to be deducted from his D.C.R.G. and other pensionary benefits. 4. Aggrieved by this action of the appellants, the respondent filed a writ petition before the High Court. The High Court noticed that the respondent was not a party to the proceedings before the Motor Accident Claims Tribunal as he had been deleted from the array of the parties and in the departmental inquiry held against him it had not been clearly found to have driven the vehicle rashly or negligently. 5. In the circumstances, it is clear that the respondent did not have an opportunity to prove his case before the Motor Accident Claims Tribunal because lie had been deleted from the array of the parties. So far as inquiry is concerned, he was not found guilty of the rash and negligent driving, As such, we arc not able to understand as to how he could have been held to be liable to make good the amount paid by the appellants to the claimant in question. This is beyond our comprehension. We think no interference is called for in this appeal and the same is dismissed accordingly. Appeal dismissed.

Author: Babu

State Of Punjab And Ors. vs Harjit Singh on 12 October, 2001

Supreme Court of India

IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.31925 of 2011 Ramchandra Manjhi Versus The State Of Bihar ---------------------------------- AI ( Mandhata Singh, J.) 2 13.10.2011 Call for carbon copy of the case diary including post mortem report of Rupaspur P.S. Case No. 50/10 from the Court of Additional Sessions Judge, F.T.C. IVth Danapur and put up this case after receipt of the same.

Ramchandra Manjhi vs The State Of Bihar on 13 October, 2011

Patna High Court - Orders

Court No. - 39 Case :- WRIT -- C No. -- 41121 of 2000 Petitioner :- Anil Kumar Tiwari Respondent :- Secretary Central Board Of Education & OthersPetitioner Counsel :- Ramesh Rai Respondent Counsel :- H.N. Pandey Hon'ble Dilip GuDta.J. List has been revised. No one appears to press the petition. Even otherwise, the petition has been rendered infructuous by lapse of time. It is, accordingly, dismissed. Interim order, if any, stands Vacated. Order Date :- 25.1.2010 GS

Anil Kumar Tiwari vs Secretary Central Board Of ... on 25 January, 2010

Allahabad High Court

xxx xxx xxx (6) The learned Addl. Sessions Judge ought to have called the petitioner in the Court if at all his presence was necessary before the Court but instead of going through such exercise, the rejection of the bail application has resulted into serious miscarriage of justice. (7) The learned Addl. Sessions Judge has erred in not properly considering the order passed by the Hon'ble Court (Coram: Mr. D.G. Karia, J.) Annexure "C" to this petition. xxx xxx xxx (12) That the learned Addl. Sessions Judge has erred in coming to the conclusion that the petitioners cannot be said to be under any custody as provided under Section 439 of Cri. P.C. xxx xxx xxx JUDGMENT N.N. Mathur, J. 1. I have heard Mr. B.S. Patel, learned Advocate for the petitioners. Mr. Patel has argued the matter at great length. In support of his contention, he has read before me paras 6, 8 and 9 of the judgment of the Apex Court in the case of Niranjan Singh v. Prabhakar . After having sensed the mood of the Court, the learned Advocate for the petitioners submits that he may be permitted to withdraw this Criminal Revision Application with a view to approach the learned Sessions Judge. Such sort of withdrawal has been deprecated by the Supreme Court in the case of State of Maharashtra v. I.P. Kalpatri . In view of this, I decline permission to withdraw this Criminal Revision Application. 2. This Criminal Revision Application has been directed against the order of the learned Addl. Sessions Judge, Vadodara dated 4-1-1997 passed in Misc. Criminal Application No. 1375 of 1996. The petitioners have prayed for following reliefs: (a) Your Lordship may be pleased to call for Record and Proceedings of Misc. Criminal Application No. 1375 of 1996 from the Court of Addl. Sessions Judge (Shri B.D. Ghasura), Baroda, and after perusing the legality and propriety of the order passed on 4-1-1997 at Annexure-E be pleased to quash and set aside. (b) During the admission and pendency of the Revision Application, Your Lordship may be pleased to restrain the concerned police officers of Gorwa Police Station from arresting the petitioners in connection with the Misc. Criminal Case No. I. 295 of 1996 of Gorwa Police Station, at Annexure-A to the petition. It appears that the petitioners are accused in Criminal Case No. 295 of 1996 registered at Police Station, Gorwa, Baroda for offences under Sections 406, 420, 467, 468 and 471 read with Section 120-B of Indian Penal Code. The said C.R. case is said to have been registered on 28-12-1996. It is alleged that as per the agreement made between the company of the complainant and accused persons, the Hire Purchase Loan of Rs. 3,302,047/- was taken for purchasing four wind-mills out of which only two wind-mills were purchased and instead of returning Rs. 180,96,000/-, of remaining two wind-mills, the same was used in another way and created false certificate that four wind-mills are installed and used the money of I.T.C. Company in other way and committed breach of trust and fraud and made false record and made a conspiracy with intention to commit the offence. 3. Before the said F.I.R. was lodged, the petitioners directly approached this Court by way of an application for Anticipatory Bail under Section 438 of the Code of Criminal Procedure which was registered as Misc. Criminal Application No. 6197 of 1996. this Court (Coram: D.G. Karia, J.) passed the order dated 20-12-1996, which reads as under: Rule. Mr. S.A. Pandya, learned Addl. Public Prosecutor, waives service of Rule for the respondent. In the facts of the case, the matter is finally heard today. The petitioners have prayed for anticipatory bail under Section 438 of the Code of Criminal Procedure in respect of a proposed complaint that may be filed against them on behalf of I.T.C. Classic Finance Limited for the offences either under Section 406 or 420 read with Section 114 of the Indian Penal Code. According to the petitioners, they have been so threatened as regards filing of the complaint by Mr. R. Handa, General Manager of I.T.C. Classic Finance Limited. Mr. R. Handa is not a party in this application. In absence of any complaint lodged as yet, it is difficult to appreciate as to what would be the allegations or averments in the proposed complaint. Under the circumstances, the petitioners shall not be arrested in respect of the complaint for the offences under Section 406 or 420 read with Section 114 of the Indian Penal Code, to be filed by or on behalf of I.T.C. Classic Finance Limited, Bombay/Ahmedabad, against them, till 5-1-1997. Mr. B.S. Patel, learned Advocate appearing for the petitioners states that he will file necessary application for regular bail in the appropriate Court, in the event of lodging the complaint against the petitioners or any of them on behalf of I.T.C. Classic Finance Ltd. With the above direction, Rule is discharged. Direct Service permitted. The petitioners thereafter filed a bail application under Section 439 before the learned Addl. Sessions Judge, Baroda, which was rejected by the impugned order dated 4-1-1997 on the ground that the application under Section 439 is not maintainable as the petitioners are neither in custody nor have they surrendered. The learned Advocate appearing for the petitioners relying on a decision of the Apex Court in Niranjan Singh's case (supra), tried to persuade the learned Judge that the petitioners should be deemed to be in judicial custody in view of the order of the High Court passed in Misc. Criminal Application No. 6197 of 1996. The learned Judge, after discussing the judgment of the Supreme Court, rejected the contention and dismissed the bail application as premature. 4. Mr. B.S. Patel, learned Advocate has assailed the order of the learned Addl. Sessions Judge, mainly on the following grounds: xxx xxx xxx (3) The order passed by the learned Addl. Sessions Judge dismissing the bail application amounts to an order without jurisdiction as once the learned Sessions Judge has admitted bail application, it cannot be refused to be decided on merits on the ground of premature. Hence, the order passed by the learned Addl. Sessions Judge is totally without jurisdiction. As far as the order of this Court dated 20-12-1996 is concerned, learned Advocate Mr. B.S. Patel also agrees that it is not an order of anticipatory bail under Section 438 of the Cr. P.C. It is held by the Apex Court in a leading case on anticipatory bail, in Gurbaksh Singh v. State , that the filing of the F.I.R. is not a condition precedent to the exercise of power under Section 438. The imminence of a likely arrest founded on a reasonable belief can be shown to exist even if F.I.R. is not yet filed. However, the provisions of anticipatory bail cannot be invoked on the basis of vague and general allegations. It does not arm oneself in perpetuity against a possible arrest. Sub-section (1) of Section 438 empowers the High Court or the Court of Session to direct to release the applicant on bail in the event of arrest. There has to be order for bail. A person can be said to be in constructive custody only after he executes a bail bond as directed by the Court under Section 438(1) of the Cr. P.C. In the present case, this Court impressed with the emotional submissions that the marriage of the petitioner No. 1 and marriage of the sister of petitioner No. 2 was fixed in the last month of December, 1996, on humanitarian ground, provided protection for a limited period upto 5-1-1997. It is unfortunate that indulgence given by this Court on humanitarian ground has been sought to be misused. After the F.I.R. was filed, the petitioner could have moved before the Sessions Judge either under Section 438 or 439. In case of application under Section 438, the Court would have considered the matter on merits after notice to Public Prosecutor. The petitioners could have filed application under Section 439 after they had surrendered or arrested after 5-1-1997. Anticipatory bail is a pre-arrest bail and regular bail under Section 439 is a post-arrest bail. The petitioners perhaps apprehending that in the facts of the case involving fraud above a crore of Rupees, anticipatory bail or even regular bail may not be granted evolved a strategy to obtain a smooth order under Section 439, without surrender or arrest, by using the order of this Court by impressing upon the learned Addl. Sessions Judge that the order of the High Court is an order of anticipatory bail and as such the petitioners are in judicial custody in view of the decisions of the Supreme Court in Niranjan Singh's case (supra). However, the petitioners failed in this attempt. The learned Additional Sessions Judge discussed the judgment of the Apex Court in Niranjan Singh's case (supra). After extracting the ratio in Niranjan Singh's case (supra) as follows, rejected the application on the ground that the application under Section 439 was premature: No person accused of an offence can move the Court for bail under Section 439 unless he is in custody. Where the accused had appeared and surrendered before the Sessions Judge, the Judge would have jurisdiction to consider the bail application as the accused would be considered to have been in custody within the meaning of Section 439, is physical control or at least coupled with submission to the jurisdiction and orders of the Court. He can be in custody not merely when the police arrests him, produces him before a Magistrate and gets a remand to judicial or other custody. He can be stated to be in judicial custody when he surrenders before the Court and submits to its directions. 5. In Spite of the clear ruling of the Apex Court that unless a person is in custody, he cannot move application under Section 439 and the accused who had appeared and surrendered before the Sessions Judge, shall be considered in custody within the meaning of Section 439, the learned Advocate for the petitioners Mr. B. Section Patel, very emphatically argued that the learned Judge in disregard of the law laid down by the Apex Court on the question of custody has erroneously rejected the bail application under Section 439 as premature. He submitted that if learned Judge so desired, he could have asked for the surrender of the petitioners. The contention deserves to be outrightly rejected. 6. In Niranjan Singh's case (supra), on a private complaint, the learned Magistrate, after enquiry under Section 202 of the Cr. P.C. proceeded against the accused persons who were Police Officers for offences under Section 302 of the I.P.C. The Court issued non-bailable warrants for production. The accused persons without surrender applied for bail, which was rejected. However, the learned Magistrate stayed his own order to move to the Sessions Court. The Apex Court disapproved the course adopted by the learned Magistrate but a serious view was not taken for the reason that the accused persons surrendered before the Sessions Court. The Court further held that only on surrender of the accused persons, Sessions Court acquires the jurisdiction to consider the bail application. The Court also held that a person can be in custody not merely when the Police arrests him, produces him before the Magistrate and gets remand to judicial custody, he can also be stated to be in judicial custody when he surrenders before the Court and submits to its directions. Thus, the Court will have no jurisdiction to hear a bail application for release unless the accused-applicant is in custody on being arrested or on surrender. Simply because an application for bail has been admitted the accused-applicant cannot ask the Court to decide the application for bail on merits. On surrender of accused, the Court in exercise of the judicial discretion, may adopt any of the following courses: (1) remand him to appropriate custody. (2) direct to produce the accused persons before the Magistrate having jurisdiction, for consideration of Police/Judicial remand. (3) to consider the bail application on merits, and either to accept or reject. In case of rejection to remand to custody. 7. The accused, applying for bail for release cannot be permitted to take chance that if the bail is granted, well and good and if not granted, may walk out of the Court and approach the Higher Court. Such a course amounts to circumventing the provisions of Section 439 and has been disapproved by the Apex Court in Niranjan Singh's case (supra). All the Courts taking up application for bail for release must first ensure that the accused is in custody. It is not for the Court to express the desire that the applicant should surrender. The contention raised in the present case that if the learned Addl. Sessions Judge wanted that applicants should surrender, he could have asked to do so, is nothing but an attempt to over-reach the Court. If the applicants desired that their application should be considered under Section 439, it was for them to surrender and submit to its direction, without expecting any invitation from the Court. 8. In the instant case, applicants have made an attempt to misuse the indulgence given by this Court by order dated 20-12-1996, given on humanitarian grounds, which is a prohibitive order not to arrest till 5-1-1997, and not an order of anticipatory bail under Section 438 of the Cr. P.C. The applications through their Advocate have deliberately tried to misread the judgment of the Apex Court not only before the Addl. Sessions Judge, but also before this Court. Thus, the adventure fails. The impugned order of the learned Addl. Sessions Judge being perfectly legal and valid is upheld. It will be open for the applicants to move the Court of Sessions Judge of competent jurisdiction under Section 438 or 439 of the Cr. P.C. The Court shall decide the applications on merit without being influenced by any observations made in this order or in the order dated 20-12-1996. However, the petitioners are not permitted to directly move this Court under Section 438 or 439 of the Cr. P.C. in view of the ratio laid down by this Court in a decision taken in the case of Harivallabh Parikh v. State of Gujarat 1997(1) GLR 638, decided on June 17, 1996. 9. The narration of the facts clearly reveals that the petitioners who claim themselves to be the industrialists are guilty of abusing the process of this Court and therefore, though in criminal cases normally the parties are not saddled with cost, the present one is a fit case to make exception. 10. Thus, the frivolous Criminal Revision Application is dismissed with cost which is assessed as Rs. 5,000/- payable by each of the petitioner. Copy of this order be sent immediately to the Court of Sessions Judge, Baroda.

Author: N Mathur

S.K. Gandhi vs State Of Gujarat on 7 January, 1997

Gujarat High Court

[Section 8(2)(b)] [Section 8(2)] [Section 8] [Complete Act]

Central Government Act

JUDGMENT Satish Chandra, J. 1. This reference relates to the assessment years 1962-63 and 1963-64. The assessee-firm originally carried on business in the status of a HUF. On October 18, 1960, a partial partition took place between the coparceners. The business conducted by the HUF was taken over by a firm consisting of Hari Ram Khanna and his two sons, Tilak Raj and Sudarshan Kumar. The firm was constituted under a deed of partnership dated October 19, 1960. It disclosed that the share of Hari Ram was six annas and those of his two sons five annas each. The claim of partial partition was accepted by the ITO by an order dated August 18, 1966. For the assessment year 1962-63, the assessee-firm was granted registration. Subsequently, the CIT passed an order under Section 263 setting aside the assessment of the firm in the status of a partnership firm and directed the ITO to make the assessment afresh. The Commissioner found that though the application for registration was made in the proper form and within time, yet actually the division of share of the profits was not made in accordance with the division of profit indicated in the partnership deedr. The deviation was that Hari Ram Khanna instead of getting six annas and his two sons getting five annas each, they were given equal shares, that is to say, the two sons got 5-1/3 instead of 5 annas each. The Commissioner did not accept the assessee's submission that the distribution of the book profits had been inadvertently made by the accountant. Considering all the circumstances, the Commissioner came to the conclusion that the firm was not genuine and so was not entitled to registration. 2. In response to this directive, the ITO cancelled the registration of the firm. He passed another order for the assessment year 1963-64 refusing registration. He assessed the firm in the status of an association of persons. The assessee went up in appeal. The AAC upheld the orders and dismissed the appeal. 3. The assessee then went up to the Tribunal. The Tribunal held that the firm was a genuine one, its partners were also genuine, the application for registration was made on a proper form and within the required period of time and complied with all the formalities. When the application was made the profits of the year had not been distributed in the books and in the application it was stated that the profits would be distributed according to the specification of shares in the partnership deed. It found that in the books a slight deviation was made inasmuch as the father instead of getting six annas and the two sons five annas each they were given equal shares. The Tribunal then found : "Such a mistake could have been committed by the accountant inadvertently because the partners were the father and his two sons and ordinarily one can think that they would have equal shares." 4. It emphasizes that this deviation occurred subsequent to the making of the application. It expressed the opinion that even this minor irregularity could have been covered by imposition of penalty under Section 271(4) of the Act and, therefore, it was not a case where registration could validly be refused on the finding that the firm is not genuine. The appeals were allowed. 5. At the instance of the Commissioner, the Tribunal has referred the following question of law for our opinion: "Whether, on the facts and in the circumstances of the case, registration under Section 185 of the I.T. Act, 1961, for the assessment years 1962-63 and 1963-64 could be granted to the assessee-firm ?" 6. The facts are not in dispute. The application for registration was made in time and in the proper form. It complied with all the requisite formalities including the declaration which is required to be made that the profits of the firm will be divided or credited as shown below, namely, in accordance with the shares specified in the partnership deed. The factual findings of the Tribunal show that at the time when the application was made a proper declaration that the shares of profits will be distributed in accordance with the shares indicated in the partnership deed was duly made. The deviation occurred subsequently and it was because of the inadvertent fault of the accountant. On an overall consideration of all the facts, the Tribunal came to the conclusion that it cannot be said that the firm was not genuine. In our opinion, the deviation was negligible inasmuch as the father was credited with 5-1/3 annas share instead of six annas and the same mistake occurred in the case of the two sons, namely, instead of five annas they were credited with 5-1/3 annas. We are not satisfied that the Tribunal committed an error in coming to the factual conclusion that in spite of this minor, deviation in the crediting of the share of the profits the genuineness of the firm was doubtful (sic). On this view, the decision of the Supreme Court in Khanjan Lal Sewak Ram v. CIT [1972] 83 ITR 175 becomes clearly distinguishable. In that case, a portion of the profits were not divided amongst the partners at all. The division of shares took place before the application for registration was made and the declaration given that the shares had been divided in accordance with the partnership deed was found to be false. In this view, it was held that para. 3 of Rule 6 was clearly violated and hence the ITO was justified in refusing registration. The distinguishing features are that in the present case the distribution of profits had not taken place at all when the application for registration was made and the explanation for the irregularity, if any, was, on facts, found believable by the Tribunal. 7. On the facts and in the circumstances of the case, we are satisfied that the assessee-firm was entitled to registration. We, therefore, answer the question referred to us in the affirmative, in favour of the assessee and against the department. As the assessee has not appeared, there will be no order as to costs. The fee of the counsel for the department is assessed at Rs. 200.

Author: S Chandra

Commissioner Of Income-Tax vs Hari Ram Khanna on 4 January, 1978

Allahabad High Court

JUDGMENT 1. The question that arises in this appeal is whether certain articles that have been imported by the accused from Germany are "arms," within the meaning of Section 5 of the Indian Arms Act, as defined by Section 4 of that Act. The articles in question were sent by the accused's brother from Germany on his own initiative. There was apparently some doubt at the Custom House whether they am "arms" within the meaning of the Arms Act of 1878, and the question was referred to the appraisers there for their decision. In the result the appraisers held that the articles fell within the definition of cutlery, and that they are not "arms" within the meaning of the Indian Arms Act of 1878. On behalf of the accused, evidence was called of Mr. Brown, who is a partner in Messrs. Manton & Co., and also of an employee in the firm of Messrs. Lyon and Lyon, and of other witnesses connected with firms which sell hunting; knives and such like articles Mr. Brown distinctly stated in his evidence that in his opinion the article in question were not daggers, within the meaning of the Indian Arms Act, but that they were hunting knives, and he referred in his evidence to a catalogue of the well known cutlers Rodgers (at page 68) for the purpose of showing that for an article to be a dagger it must be sharpened on both sides. We have had before us various exhibits (B), (D), (E) and (G) which were purchased from the shops of Messrs. Manton & Co., and Messrs. Lyon and Lyon and from other shops as hunting knives, and there is no doubt that, although the articles imported are inferior in quality, they do bear some considerable resemblance to the articles which are sold generally in Calcutta as hunting knives. But taking the matter as a whole we have come to the conclusion that the learned Magistrate was right in his decision, and that these articles fall within the definition of "arms" as given in Section 4 of the Ace. Whether they are "daggers" it is not, we think, necessary, for us to decide, for Section 4 does not purport to give an inclusive definition, for all that it says is that "arms" include, among other things, "daggers." This being so, we think that the conviction was correct, and that these articles fell within Section 5 of the Indian Arms Act of 1878, and within the definition of arms to be found in Section 4. But, having regard to the fact that the Custom appraisers considered that they were cutlery and that various witnesses of repute have considered that they were hunting knives, we think that it is not necessary to impose the somewhat heavy penalty that was imposed by the Second Presidency Magistrate. We think, that, in importing these articles in the manner in which they were imported, the accused did not intend to controvert the provisions of the Indian Arms Act of 1878, and we accordingly, reduce the penalty inflicted on each of the three counts to one of Rs. 50 in each case. The fines paid in excess of the amount which we have directed will be refunded. 2. Let the knives produced on behalf of the defence, namely, exhibits (A), (B), (C), (D), (E) and (G) be returned.

Bishan Singh vs King-Emperor on 11 January, 1924

Calcutta High Court

JUDGMENT Seshagiri Ayyar, J. 1. The District Judge held that no circumstances have been proved which would deprive the father of the right of guardianship of his minor daughters. We agree with him. Mr. Krishnaswami Ayyar has taken us through the whole of the evidence. Accepting in their entirety the depositions of appellants' witnesses, we are unable to find that any circumstance has been spoken to which would render the father unfit to be the guardian of his minor daughters. There is some evidence that the deceased mother of the girls was not properly treated: that is not a ground for presuming that the children will not be properly looked after. The eldest girl was twelve years of age at the time of the enquiry and the grandfather is unable to depose to any single act which shows that either the father or the stepmother ill-treated the girl. The fact that the father has married a second wife is not a sufficient ground for holding that he is unfit to be the guardian of his children. 2. The learned vakil for the appellant relies on Bindo v. Sham Lal (1907) I.L.R. 29 All. 210, which seems to lay down that if the father marries again, he ought to be deprived of his legal right of guardianship. The learned Judges refer only to Section 17 and say that the welfare of the girls is the primary consideration. There is no doubt that that would be the consideration which would influence the Court ultimately; at the same time, it ought not to be forgotten that the legislature advisedly draws a distinction between the legal rights of husband and parents on the one side and those of the other near relations on the other. In the first class of cases, it must be established that any act or conduct of the husband or father renders him unfit for guardianship: the fact that the child may be happier and more comfortable with other relations is not sufficient to deprive the two relations referred to of their right and duty. The same sanctity does not attach to the rights claimed by the other relations. It is for these reasons that Section 19 of the Guardians and Wards Act lays down that the Court must be satisfied that the husband or the father is unfit to be the guardian of his wife or child respectively before it can appoint another person as the guardian. For these reasons we are unable to follow the decision in Bindo v. Sham Lal (1907) I.L.R. 29 All. 210. The decision in Re Gulbai and Lalbai (1908) I.L.R. 32 Bom. 50 deals with the guardianship of other near relations. To such cases Section 19 does not apply and the only consideration which should weigh with Courts is the welfare of the minor; we think the order of the District Judge is right; we must dismiss this appeal. Having regard to the fact that the grandfather is deeply intrested in the minors, we think the provision for consulting the Court before giving the girls in marriage is a salutary one. We see no reason to think that the security is not sufficient. We make no order as to costs.

Author: S Ayyar

Audiappa Pillai vs Nallendrani Pillai on 5 March, 1915

Madras High Court

CENTRAL INFORMATION COMMISSION Club Building, Opposite Ber Sarai Market, Old JNU Campus, New Delhi - 110067. Tel: +91-11-26161796 Decision No.CIC/SG/A/2009/002738/6060 Appeal No. CIC/SG/A/2009/002738 Appellant : Mr. Ranbir Singh Solanki D-30, Solanki Market, Madhu Vihar Sector-3, Dwarka, New Delhi-110075 Respondent : Mr. B.M.Dhual Public Information Officer& Chief Engineer (South) GNCTD, Delhi Jal Board; Varunalaya Phase-II, Karol Bagh New Delhi-110005 RTI application filed on : 11/05/2009 PIO replied : 26/05/2009 First Appeal filed on : 09/06/2009 First Appellate Authority order : No order Second Appeal Received on : 27/10/2009 Information Sought: 1) Copy of final measurement bill for the supply pipeline in Madhu Vihar. 2) Copy of the site plan for the supply pipeline. 3) State reasons for situations where pipeline could not be laid as per the site plan. 4) Details of excess over estimated expense, if any. 5) If the plan has been completed in Madhu Vihar, copy of the completion plan be provided, and if it is incomplete, copy of the documents for the same be provided. PIO's Reply: Copies of certain documents were provided by the PIO. Grounds for First Appeal: Incomplete and unsatisfactory reply received form the PIO. Order of the First Appellate Authority: No order. Grounds for Second Appeal: Unsatisfactory & incomplete reply received from the PIO. Relevant Facts emerging during Hearing: The following were present: Appellant: Mr. Ranbir Singh Solanki; Respondent: Mr. B.M.Dhual, Public Information Officer & Chief Engineer (South); The First Appellate Authority Mr. Dharam Pal is guilty of dereliction of duty since he had not passed any order in the matter. The PIO has provided the information on all the queries except for the query-2. The PIO has refused to give the MAP of the water pipe lines of the area on the grounds that disclosing the MAP of the water pipe lines may lead to tampering or affecting the security of the area and the water supply. Thus the PIO is claiming exemption under Section 8(1)(a) of the RTI Act. Given the overall social scenario the Commission feels that the PIOs apprehension that disclosing the points of the water pipe line could affect the security of the area appears reasonable. The Commission therefore upholds the decision of the PIO not to disclose the information. However, the Commission must make it clear that while the MAP of the water supply line of the entire area may not be disclosed this does not mean that any details about water supply may not be given. However the purpose of the information seeker would be served if information is provided to the Appellant about the streets where water supply lines have not been laid and the reasons for this that are available in the records if any. Decision: The appeal is allowed. The PIO is directed to provide the information as directed above to the Appellant before 05 January 2010. This decision is announced in open chamber. Notice of this decision be given free of cost to the parties. Any information in compliance with this Order will be provided free of cost as per Section 7(6) of RTI Act. Shailesh Gandhi Information Commissioner 23 December 2009 (In any correspondence on this decision, mention the complete decision number.) (SP)

Mr. Ranbir Singh Solanki vs Gnctd, Delhi Jal Board on 23 December, 2009

Central Information Commission

Court No. - 27 Case :- MISC. BENCH No. - 1762 of 2008 Petitioner :- Red Rose School Society, Lucknow Respondent :- Chief Commissioner Of Income Tax,Lucknow Petitioner Counsel :- R.B. Shukla Respondent Counsel :- D.D. Chopra Hon'ble Devi Prasad Singh,J. Hon'ble Dr. Satish Chandra,J. As prayed by Sri D. D. Chopra, learned counsel for the respondent, one week time is allowed for filing counter affidavit. Three days' thereafter for filing rejoinder affidavit. List in the week commencing 19.07.2010. Order Date :- 7.7.2010 KS/

Red Rose School Society, Lucknow vs Chief Commissioner Of Income ... on 7 July, 2010

Allahabad High Court

Cr.R. No.1262/2009 31.08.2010 Shri S.A.Khan, Advocate for the applicant. Heard on admission. This revision has been filed by the applicant under Section 397 of Cr.P.C. against the order dated 30/07/2010 passed by the learned Family Court, Bhopal in MJC No.406/2009, whereby the Court below has rejected the application of the applicant. Learned counsel for the applicant submits that the applicant has moved an application before the learned Family Court to the effect that cross examination of witness Jyoti (PW-1) be kept pending because in her cross examination the defence of the applicant will be disclosed, whereas a criminal case is pending against the applicant for the offence punishable under Section 498-A of IPC and, therefore, the said witness should be examined in that criminal case earlier than this maintenance case. The learned Family Court has rejected the application of the applicant, hence the applicant has preferred this revision petition before this Court. Learned counsel for the applicant further submits that the defence of the applicant will be opened, if the applicant of the maintenance case is cross examined earlier. Therefore, the leaned Family Court has erred in rejecting the application of the applicant. After considering the submission made by learned counsel for the applicant, I am of the view that in the maintenance petition reply is to be filed by the respondent prior to evidence (presentapplicant) and, therefore, his defence is very well there on record and there is no possibility of any irrelevant cross examination in the maintenance case away from the reply. There is no law, which could help the applicant that the petitioner of the maintenance case may not be examined in the case till her examination in the criminal case. I find no illegality in the impugned order passed by the learned Family Court Judge, therefore no interference is called for. Consequently, this revision fails and is dismissed in limine. (N.K.Gupta) Judge Ansari.

Bharat Singh vs Smt. Jyoti Singh on 31 August, 2010

Madhya Pradesh High Court

JUDGMENT 1. The appellants, Girja Prasad and Bhagwati, were charged before the learned Sessions Judge of Benares, under Section 302, Penal Code, with the murder of a youth named Barka alias Adit Prasad at the village of Marwi on 16th May 1934. The appellant Bislinath was charged with aiding and abetting the murder on the infliction of grievous hurt on Barka contrary to Section 111, Penal Code, read with Section 302 and Section 325, Penal Code, All the appellants were convicted, Girja Prasad being sentenced to death whilst Bishnath and Bhagwati were sentenced to transportation for life. Against these convictions and sentences all the appellants have preferred appeals to this Court. 2. There can be no doubt that the deceased Barka met his death by violence. The post mortem report and the unchallenged evidence of Major Culhane, the Civil Surgeon of Benares, prove conclusively that the death was due to a stab in the abdomen. The only issues for the decision of this Court are, who stabbed the deceased, and the parts played by the various appellants in the incident. The case for the prosecution can be stated shortly as follows: The deceased was a youth of about 17 years of age who lived with his father Shiam Naraln, P.W. 7, in the village of Marwi. With them lived Shiam Narain's cousin Udai Naraln, P.W. 8, who, it is suggested, held a grove of mango trees jointly with Shiam Narain. The appellants Girja Prasad and Bishnath are brothers who also lived in the village and in their service was the appellant. Bhacwati. 3. On 16th May 1934, a few hours after sunrise it is alleged that the deceased Barja surprised Bhagwati stealing, mangoes from the grove already referred to Barka protested and demanded the mangoes, but Bhagwati refused to hand them over to him. Bhagwati made off towards the house of his master closely followed by Barka. Outside the house were the appellants, Girja Prasad and Bishnath, and there a further altercation ensued and it is to be noted that at this time Girja Prasad was wearing a kurta and was holding in his hand a danda or lathi. The altercation seems to have angered Bishnath who shouted to the others "maro sale ko tab i manega." Upon these words Bhagwati and Girja Prasad ran towards the deceased Barka who promptly fled. He was caught by Bhagwati who held him when Girja Prasad came up. The latter when he reached Barka suddenly whipped out a spear head about 8 or 9" long from the pocket of his kurta and drove it into the abdomen of the unfortunate deceased, and thereupon all of them fled. 4. To support the case for the prosecution a number of eye-witnesses were called. The principal witness was Basdeo, P.W. 1, who deposed to the theft of mangoes by Bhagwati, the protest by Barka and the subsequent altercation. He further deposed to hearing Bishnath's shout of "maro sale ko" and saw the pursuit of Barka and the fatal stab. His evidence was corroborated by Hirde Narain, P.W. 2, Baldeo Singh, P.W. 3, Santoo, P.W. 4, Khannu, P.W. 5 and Janki, P.W. 6. These witnesses did not see the theft which gave rise to the quarrel, but all heard Bishnath shouting and. saw the pursuit, the capture and the stabbing. This evidence, if believed, clearly establishes that the deceased Barka was stabbed by Girja Prasad and that Bishnath and Bhagwati played important parts in the incident. It has been urged however before us that the story told by these witnesses is a highly improbable one and should be rejected. (His Lordship after considering evidence proceeded). Giving full weight to the very forcible and able arguments which were addressed to us by Dr. Sen on behalf of the appellants, we cannot accept this version of the affair and in our judgment it is established beyond all reasonable doubt that the version of the affray given by the prosecution is the true one. That being so, it is necessary to consider separately the part played by each individual appellant in order to ascertain what offence, if any, was committed by each of them. 5. Girja Prasad. - This appellant dealt the fatal blow in circumstances which did not justify him in using any force whatsoever towards the deceased Barka. He used a lethal weapon, viz., a spear head and directed the blow at the deceased's abdomen which he must have known was a vital part of the human body. As death resulted from this stab, it is clear that he is guilty of murder under Section 302, Penal Code, and his learned Counsel very frankly admitted that if the version of the prosecution was held to be true he could not contend otherwise. We therefore affirm the conviction of Girja Prasad for murder. The murder however was not a premeditated one, but was the result of anger and passions engendered in a sudden quarrel and therefore in our view it is not a case where a sentence of death is necessary in the interests of justice. We are of opinion that a sentence of transportation for life is adequate to meet this case and we therefore substitute that sentence for the sentence of death passed upon this appellant. To this extent only the appeal of Girja Prasad is allowed. 6. Bishnath. - This appellant was found guilty of abetment of murder and sentenced to transportation for life. The learned Sessions Judge held that the words used by this appellant, viz., "maro sale ko" were an instigation or incitement to Girja Prasad to commit murder or at least to inflict such injuries as might in the ordinary course of nature cause death. We find it impossible to agree with this view. The words "maro sale ko" addressed by this appellant to Girja Prasad and Bhagwati did not, in our view, amount to an instigation to murder or cause grievour injuries in the circumstances in which they were used. They were an instigation to chastise or inflict corporal punishment on the deceased Barka and no more. The words in certain circumstances may be capable of a more serious meaning, but we are satisfied that in the circumstances of this case they were nothing more than an instigation to chastise or thrash a youth whom Bishnath thought was being impertinent and offensive. 7. In consequence however of Bishnath's words Bhagwati and Girja Prasad did pursue and catch Barka and whilst the latter was being held by Bhagwati he was fatally stabbed by Girja Prasad with a spear head which, up to the moment it was used had been concealed in the pocket of his kurta. There is absolutely no evidence to show that Bishnath knew that Girja Prasad had this spear head on his person at that particular time and indeed the evidence in the case points to the contrary. At the time that Bishnath addressed the words to his co-appellants. Girja Prasad was holding a danda or lathi in his hand and the probabilities are that Bishnath intended Girja to use that danda or lathi to chastise or thrash Barka. It was for this reason. that the learned Sessions Judge held' Bishnath guilty of abetment of murder. A lathi, according to him, is a lethal weapon and inciting a person to beat another with a lathi is an instigation to murder where death ensues. In certain circumstances it may well be so, but upon the facts of this case as we find them to be, the instigation was only to chastise or thrash with a lathi or other similar instrument and not to cause death or serious injuries. In any event a lathi was not used by the person instigated, but a far more dangerous weapon, the existence of which, we hold, was not known to the instigator Bishnath. The reasons therefore given by the learned Sessions Judge for convicting Bishnath of abetment of murder cannot be supported. Holding as we do that the instigation was merely to chastise or thrash, can it be said that Bishnath is liable for abetment of murder merely because murder was committed within a few moments by one of the persons to whom the inciting remark was addressed. 8. The act of stabbing with a spear head was a very different act from the actual act which Bishnath contemplated and instigated. At the highest he incited no more than a thrashing with a lathi, yet Girja Prasad, the person incited, committed murder by stabbing the deceased with an obviously deadly weapon. By reason of Section 111, Penal Code, an abettor may be liable for a different act than the one he instigated provided the different act was a probable consequence of the abetment and was committed under the influence of the instigation. Had Girja Prasad used the lathi which he held in his hand at the time Bishnath shouted "maro sale ko" and killed Barka with it, it might be argued that Bishnath is liable for abetment of an offence under Section 302 or 304, Penal Code, by reason of the provisions of Section 111, Penal Code, but as a lathi was not used the point does not arise for decision in this case. Instead of a lathi a very different and far more dangerous weapon was used and at the time of the instigation to thrash the deceased, Bishnath was wholly unaware of its existence. In our judgment Bishnath can only be convicted for abetment of murder if the use of the spear head was a probable consequence of the shout "maro sale ko" and that the blow was struck under the influence of the instigation:. Having regard to the fact that the stab with the spear head followed immediately after Bishnath's shout "maro sale ko", it might well be argued that the act of stabbing was committed under the influence of the instigation, but even so that is not enough to make Bishnath liable. The act of stabbing being a different act, from the act of thrashing which was the act instigated, the prosecution must show not only that the act of stabbing was committed under the influence of the instigation, but also that it was a probable consequence of the instigation to thrash. 9. A probable consequence of an act is one which is likely or which can reasonably be expected to follow from such an act. An unusual or unexpected consequence cannot be described as a probable one. When the consequence of an act is such that a reasonable man could not be expected to foresee that it would follow from such an act, such consequence cannot be described as a probable one. On the contrary it can only properly be described as an unexpected, unlikely or improbable consequence. It is a well established rule of construction that words in a statute creating a criminal offence must be construed strictly. In our judgment a wider meaning to the phrase "probable consequence" in Section 111, Penal Code, should not and cannot be given, otherwise it would be impossible to fix any limits to an abettor's liability. When the act done is different from the act instigated, an abettor, in our view, is only liable for such a different act if it was a likely consequence of the instigation or if it was an act which the instigator could reasonably have been expected to foresee might be committed as a result of his instigation. In this view we are supported by a Single Judge decision of this Court in the case of Queen-Empress v. Muthura Das (1884) 6 All. 491. In that case two appellants connived at a robbery to be committed by a third appellant. In the robbery excessive violence was used which resulted in the death of, the person robbed. Straight, J., whilst upholding the conviction of the third appellant for murder held that the other two appellants were not guilty of abetment of murder, but only of the offence of abetment of robbery on the ground that the excessive violence used was not a likely consequence of the instigation, but on the contrary it was a most unexpected one and one which the two appellants could not reasonably have been expected to foresee. 10. In our judgment the use of the spear head by Girja Prasad was not a probable consequence of anything said or done by Bishnath, but a most unexpected and unusual consequence and therefore his conviction for abetment for murder cannot be sustained. What he did was to instigate an offence under Section 352, Penal Code, viz., an assault on the deceased Barka and though something wholly unexpected and far more serious was done, his liability is for instigating that offence and that offence alone. We therefore set aside the conviction and sentence of transpiration for life passed on this appellant and convict him of the offence of abetment of an assault contrary to Sections 109 and 114, Penal Code, read with Section 352, Penal Code, and sentence him to three moths' rigorous imprisonment. To this extent the appeal of Bishnath is allowed. The sentence of three months will run from the date of conviction which means that this appellant has already served the period and must be released forthwith. 11. Bhagwati. - The appellant, Bhagwati actually assisted in the commission of murder, but it does not follow that he is guilty of murder or of aiding or abetting it. A person who unknowingly assists in the commission of a crime is not himself guilty of that crime or of aiding or abetting it. 12. It must be remembered that Bhagwati was a servant of Bishnath and Girja Prasad and therefore, when Bishnath shouted "maro sale ko" it was, as far as Bhagwati was concerned, an order to chastise or beat the deceased. In obedience to that order Bhagwati pursued Barka, caught him and held him for a beating by Girja Prasad. The latter however did not beat him, but suddenly produced the spear head from his pocket and plunged it into the deceased. Had Bhagwati been aware that Girja Prasad had this spear head in his possession and was likely to use it he might properly be held liable for murder or for abetment of murder. There is however no evidence whatsoever which suggests that Bhagwati knew that Girja Prasad had this weapon in his clothing or that when he caught and held the deceased he knew that Girja Prasad was about to do anything more than to beat the unfortunate Barka. Further, there is no evidence to suggest that Bhagwati held the deceased a moment after he realized that Girja Prasad had this spear head and was about to use it. The whole incident happened in a moment of time and in our judgment it is highly probable that Bhagwati knew nothing of the spear head until it was actually used and then it was too late for him to do anything. In these circumstances therefore it cannot be said that Bhagwati knowingly held the deceased Barka for any purpose other than chastisement. He abetted Girja Prasad to commit an assault, but the latter actually committed a wholly different act, viz., a murderous attack. In our judgment Bhagwati is not guilty of the abetment of that murderous attack, but is only guilty of abetment of an ordinary assault punishable under Section 352, Penal Code. 13. The learned Sessions Judge convicted Bhagwati because of the construction he placed on the words "maro sale ko" and if those words had, in the circumstances, actually amounted to an instigation to kill it would not matter whether the actual killing was done with a lathi or with a spear head. However having regard to the view we take of the meaning of the phrase "maro sale ko" in the circumstances in which it was used and of the law as we have stated it this conviction of Bhagwati for murder cannot be sustained. Bhagwati is however guilty of abetment of an assault, but in our view his degree of guilt is less than that of Bishnath. He was a servant carrying out his master's instructions and though that affords no defence, it is, in our view, in this case, a mitigating circumstance. We therefore set aside the conviction and sentence of transportation for life passed on this appellant and convict him of abetment of assault contrary to Section 109 and Section 114, Penal Code, read with Section 352, Penal Code, and sentence him to one month's rigorous imprisonment. To this extent the appeal of Bhagwati is allowed. The sentence of one month's rigorous imprisonment will commence from the day of his conviction which means that Bhagwati has already served that period and must be released forthwith.

Girja Prasad Singh And Ors. vs Emperor on 19 November, 1934

Allahabad High Court

JUDGMENT S.R. Dongaonkar, J. 1. Challenge of the appellant State in this appeal is to the judgment of the learned Sessions Judge, Buldana, in Criminal Appeal No. 9/1990, by which he allowed the appeal preferred by the respondents who were held guilty by the Assistant Sessions Judge, Buldana, for the offences punishable under Section 376 and 354 r/w Section 34 of Indian Penal Code, each of them being sentenced to suffer R.I. for 7 years and to pay fine of Rs. 1000/- each, in default R.I. for 6 months, in Sessions Case No. 61/1988, and acquitted them of the charge. 2. The prosecution case in nutshell is that, prosecutrix PW-5 Ku. Savita d/o Narhari Jaware is the resident of village Antri. She has a sister by name Manda, PW-8. She has a maternal aunt by name Sou. Kasturabai w/o Mukinda Jaware PW-6. Police Patil of the said village is PW-7 Ganpat Devman Mahajan. On the day of incident i.e. on 12-11-1987, prosecutrix Ku. Savita, was asked to go to the field of her father at Antri to protect the crops. At that time she was aged about 16 years. The time was about 7 a.m. Her father had gone to village Motala. Her mother had gone to the other field. Prosecutrix went to the said field known as "Ambewali" field with a dog. When she reached to the field, it was at about 7.30 a.m. She tied her dog to Beri tree and she sat below the Bel tree. She started reading 'Gajanan Stotra', as it was her fast day. There was standing crop of cotton in the field. It is alleged that accused No. 1 i.e. respondent No. 1 - Rameshwar Shridhar Jaware, who was aged about 22 years, came in the field. He asked her whether there was anybody in the field. She told that she was alone. Thereafter accused No. 2 i.e. Respondent No. 2 - Eknath Onkar Jaware, aged about 21 years also came to the field. He told that his bullocks had entered in the standing crops of cotton in her field, so he was going to catch the bullocks. All of a sudden, respondent No. 1 caught hold her hands and dragged her towards the standing crops of cotton. She was crying and questioning him as to why she was being dragged. At that time Respondent No. 2 came running there. They both, then, dragged her despite her resistance. They took her to the crops of cotton. They made her to lie down forcibly. Respondent No. 2 by his both hands pressed her mouth and put his leg on her neck. He pressed her breast. Respondent No. 1 removed her inner pant by lifting Maxi. Respondent No. 1 also removed his inner pant and he committed forcible intercourse with her, She suffered severe pain. Respondent No. 1 threatened her for not telling about the incident to anybody, He also threatened her saying that if she tells about the incident to anybody, it would not be good. There was bleeding. Respondent No. 1 then hurriedly took his clothes and fled away, so also respondent No. 2. According to her, respondent No. 1 had committed rape on her by penetrating his penis into her vagina. Because of this, she had suffered severe pain. It is alleged that there were stains of blood and semen on her Maxi & inner pant. She went to her house weeping along with her dog. Her elder sister Manda, PW-8 was there. She narrated the incident to her on her questioning as to why she was weeping. Thereafter her mother who had gone to 'Tikkewali' field and her father who had gone to Motala, were called. It is alleged that, at the relevant time i.e. while committing the offence, respondent No. 1 was wearing Manila, full-pant and inner pant and respondent No. 2 was wearing full-shirt and trou-ser. Her aunt Sou. Kasturabai PW-6 came there. The incident was narrated to her also. After reaching of the father of the prosecutrix PW-5 Ku. Savita, they went to Police Patil PW-7 Ganpat Mahajan. He was apprised about the incident and thereafter they i.e. prosecutrix Ku. Savita, her father, her aunt Sou. Kasturabai and Police Patil started going to police Station. On the way, Police Patil PW-7" Ganpat Mahajan asked PW-6 Kasturabai to verify the fact of rape and whether there were any signs of rape on the person or on the clothes of the prosecutrix Ku. Savita. They went in the field by name 'Mala'. PW-6 Kasutrabai verified that her inner pant & Maxi had blood stains and white semen stains. Then they went to Police Station Borakhedi. 3. Prosecutrix PW-5 Ku. Savita lodged report in Police Station as per Exh. 41. The offence under Sections 376, 354 of the Indian Penal Code was registered against the respondents. PW-10 PSI Bhimrao Wankhede conducted the investigation. The prosecutrix was referred for medical examination. PW-1 Dr. Dilip Kulkarni examined her at about 6.45 p.m. on that day and issued a certificate of his findings vide Exh. 22. He had also collected the samples of vaginal smear, pubic hairs. He also seized the clothes of the prosecutrix. Upon x-ray examination, he had issued the certificate to the Investigating Officer, Exh. 23, opining that the age of the prosecutrix at the relevant time was 16-18 years 13 years. It may be stated that during the course of investigation, after arrest, both the respondents were also referred for medical examination. Accordingly PW-2 Dr. Ashok Surushe examined them and issued certificates of his findings which are at Exh. 27 & Exh. 29. During investigation, the spot panchnama was prepared in presence of PW-9 Pralhad Suradkar as per Exh. 52. The clothes of the prosecutrix Ku. Savita were also seized as per Seizure Panchnama Exh. 34 in his presence. After due investigation and on receipt of C.A. Report Exh. 24, the respondents were charge-sheeted for the aforesaid offences. 4. The trial was held before the Assistant Sessions Judge, Buldana, in Sessions Case No. 61 of 1988. The respondents pleaded not guilty. 5. The prosecution has examined the aforesaid witnesses to establish the guilt of the accused/respondents, besides PW-3 Headmaster, Maroti Ingle, who had produced the school leaving certificate of the prosecutrix to prove her date of birth as per Exh. 30 and PW-4, HC Rane, who had carried out some part of investigation. 6. The respondents abjured the guilt and examined 4 witnesses in defence. Their defence mainly is that in the said village there is habit of lodging false reports of "rape". Police Patil is also facing a case of rape and he is instrumental to lodge some such false reports. It is also their defence that due to inimical terms between the prosecution witnesses and the respondents & their relatives, a false case has been reported against the respondents. DW-1 Prakash Khiste has been examined to prove the blood group of Respondent- No. 1 Rameshwar. DW-2 Watsalabai Bundhe has been examined to show that she had also filed a criminal case against Raghunath Suradkar and Pundlik Mandar about the rape and that was a false case. She has also been examined to show that prosecutrix Ku. Savita is debaucherous girl. DW-3 Ramdas Haramkar has been examined to show the bad terms between the prosecution witnesses and the respondents' relatives. DW-4 Retd. ASI Keshaorao Patil has been examined to prove the report lodged by the prosecutrix Ku. Savita, mainly to prove that he had written the report as per her say. 7. The learned trial Judge, after hearing the parties, came to the conclusion that prosecutrix Ku. Savita has led trustworthy evidence and she is an artless village woman whose testimony inspires confidence and she cannot make out a false charge of rape against the respondents. He also found that the defence evidence is a concocted story and in no case the prosecutrix Ku. Savita would implicate the respondents falsely in the charge of rape; which has thrown her chastity to question. He after considering the evidence on record held that the evidence of prosecutrix Ku. Savita is reliable and the conviction is sustainable; even without any corroboration to her evidence. He, therefore, held respondents guilty of the offences charged and convicted & sentenced them, however, he did not award any separate sentence against the respondents for the offence under Section 354 of Indian Penal Code. 8. The respondents challenged this judgment of conviction and sentence in the Court of Sessions Judge, Buldana. Learned Sessions Judge, Buldana, after elaborate assessment of the evidence on record, found that the case against the respondents is not sustainable, inasmuch as the evidence of prosecutrix Ku. Savita is not reliable. The same is riddled with many omissions and contradictions. The story of the prosecution, as alleged by prosecutrix Ku. Savita, is improbable considering the totality of the circumstances which he has mentioned point-wise. He also considered the fact that there was total discrepant version as regards Maxi, Parkar (Petticoat) and the uniform of the prosecutrix. There was clear doubt as to which clothes she was wearing at the time of incident. He found that the medical evidence is not corroborating the evidence of prosecutrix Ku. Savita, not only that, it is in total contradiction with the theory propounded by the prosecution. He found that the judgment of the learned trial Judge was totally incorrect and it was based on wrong assumption that prosecutrix Ku. Savita would not lie or lodge any false complaint. He specifically found that, in the circumstances of the case, her evidence requires corroboration, there was no such corroboration available, the prosecution case raises several doubts and therefore, her testimony cannot be believed as trustworthy for basing the conviction. Accordingly, he allowed the appeal and acquitted the respondents. This udgment of acquittal of the respondents has been challenged in this appeal. 9. Learned A.P.P. Mr. D.B. Patel, for appellant State while taking exception to the impugned judgment and relying on the observations of the Apex Court in (Sheikh Zakir v. State of Bihar) and (State of Maharashtra v. Chandraprakash Kewalchand Jain), contended that the evidence of prosecutrix Ku. Savita is trustworthy, she was a rustic girl of the village and she could not have leveled false charge against the respondents. The evidence of the prosecutrix cannot be treated as an evidence of accomplice and when she had immediately informed about the incident to her sister and her aunt, no further corroboration was required. In any case, her evidence is supported by the evidence of Police Patil and also the medical evidence on record. Therefore, it is submitted that the appellate judgment is totally incorrect and liable to be set aside and the judgment rendered by the learned trial Judge convicting the respondents of the aforesaid offences be confirmed. 10. Learned Counsel Shri N.S. Badhe, for the respondents, has supported the judgment of the learned appellate Judge and contended that the learned Sessions Judge in appeal has considered every aspect of the case in proper perspective and therefore, it is not liable to be interfered with. According to him, the circumstances of the case are such that the evidence of prosecutrix Ku. Savita requires corroboration and it would be hazardous to base conviction on her uncorroborated testimony. It is his submission that in the said village there is a habit of lodging false complaints of "rape" against various persons and the same is established by the defence evidence particularly DW-2 Wastalabai. In fact, the Police Patil PW-7 Ganpat Mahajan is himself facing a rape charge and therefore, the evidence of prosecutrix Ku. Savita should not be considered as trustworthy, more so because it is riddled with so many improbabilities and also because the medical evidence is contrary to what she has stated about the incident. He has submitted that the learned trial Judge has superficially found the evidence of prosecutrix Ku. Savita reliable and trustworthy for basing the conviction. According to him the difference between the Maxi and Parkar and the cloth pieces seized by the police from the person of the prosecutrix Ku. Savita clearly makes out a case of false accusation against the respondent, if not, a doubt is created about the reliability of her evidence and therefore, the judgment rendered by the learned Appellate Judge is correct and is not liable to be interfered with in the limited scope of interference with the judgment of acquittal by this Court. 11. As this Court is dealing with the judgment of acquittal in appeal, the observations of Apex Court in 2007 (2) Crimes 103 : 2007 AIR SCW 1850 SC (Chandrappa and Ors. v. State of Karnataka) in para 35 can be referred, which are thus- 35. From the above decisions, in our considered view, the following general principles regarding powers of appellate Court while dealing with an appeal against an order of acquittal emerge; (1) An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded; (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may, reach its own conclusion, both on questions of fact and of law; (3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds, 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc., are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasize the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion. (4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person has to be presumed to be innocent unless he is proved guilty by a competent Court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court. 12. Here is the case where the learned trial Judge has found the respondents guilty of the offence charged on the basis of the testimony of the prosecutrix Ku. Savita, holding it to be reliable. The learned appellate Judge held otherwise and acquitted the respondents. The question, therefore, would be whether the view taken by the learned Appellate Judge is totally incorrect or perverse to the record. If such inference is not possible, then this would be a case of two views possible, one taken by the learned appellate Judge to acquit the respondents. 13. On perusal of the reasons recorded by the learned appellate Judge, for coming to the findings that the evidence of prosecutrix Ku. Savita is not that much trustworthy for basing conviction, it would be seen that they are apparently borne out from the record. 14. It is necessary to note that the incident is of morning when the villagers usually go for their agricultural works, as the prosecutrix Ku. Savita has herself stated. From the spot panchnama, it does appear that there were standing crops of cotton on the spot of incident and in fact, prosecutrix Ku. Savita stated that she had gone to the field for protecting the crops. It is pertinent to note that PW-8 Manda, elder sister of the prosecutrix, has admitted that it was weekly Bazar day and there is a public way by the side of the spot. Therefore, for a moment, even if the possibility of independent witnesses not being there at the time of incident is considered, still it is not brought on record that respondents are so brazen that they would commit such a heinous offence at the relevant time even when there was possibility of their being exposed and being caught red-handed. 15. It is, in this context, the evidence of PW-7 Police Patil, Ganpat Mahajan has to be seen. In his evidence, particularly in cross examination, he has stated that Lilabai r/o Antri had prosecuted him for the offence under Section 354 of Indian Penal Code wherein he was acquitted. At present offence under Section 376 of Indian Penal Code is registered against him. He has further stated in cross examination that, it is true that there are 4 to 5 cases of rape happened in the village Antri and only 2 rape cases were sent to the Court and the accused in those cases are acquitted. He has in further cross examination stated that he knew Raghunath Suradkar and he was prosecuted for the offence under Section 376 of Indian Penal Code when he was Sarpanch. His evidence tends to show that the allegations of committing rape are made in that village even against the Police Patil and Sarpanch. This is not to say that for that prosecutrix Ku. Savita has to be disbelieved. But then, it would not be unreasonable to expect corroboration to her evidence on material particulars. 16. DW-2 Watsalabai had also deposed about the habit of lodging false report and in fact she stated that Police Patil informed her to make a false allegations against Raghunath Suradkar and Pundlik Mandar about committing rape on her. She has also stated that her husband had advised her that they are required to reside in the village, therefore, she had filed false rape case against them. What is more she has stated is that Police Patil had informed her to break her bangles and a lantern and thereafter her saree was taken away and brought the same after containing some stains of semen and thereafter she, Police Patil and other villagers had gone to the police station and she was required to put thumb print on her complaint, if such is the evidence led by a woman of the village, it is rather must to find out whether the prosecutrix Savita is reliable or not and whether her evidence is corroborated from some independent source. 17. This takes us to consider the medical evidence on record. PW-1 Dr. Dilip Kulkarni who had examined the prosecutrix has stated in his report thus- (3) Injuries : i) Abrasion of 2 in No. (Lt.) elbow dorsal aspect/1 cm and ½ cm. long ii) Abrasion on (Rt) elbow dorsal aspect, 2 in Nos. 3 mm and 5 mm in length. No injuries or scratches seen on thigh, breast, back and private parts. Private parts : No matting of pubic hairs. No semen stains noted. No foreign body seen on hairs or in private part. Vulva and Vag. orifis stained with blood & hairs around vulva matted. On P/S, no injuries seen over cervix vaginal walls, blood oozing through OS' + P/v at AV AF NS Ex clear chetle intact, hymens ruptured. No recent sign. Rupture of hymen, blood present in vagina & around the vulval orifis. (6) Pubic hairs matted with blood & stains trimned are collected for chemical analysis. (7) Swab from labia minora and vagina with post Fx taken on glassed slides, fixed & sealed for Chemical analysis (8) Blood sample taken for grouping & Ph. typing and sealed. (9) Pieces of clothes from Parkar & underpant are taken in bottle, sealed for Chemical analysis. (10) X-ray of wris St. AP both hands, elbow are advised for conformation of age. Report regarding age of Pt. will be given after examination. It is rather surprising and shocking that in the said certificate he has not mentioned as to whether there were signs of any recent intercourse. But the fact remains that the injuries stated by him are abrasion on dorsal aspect of the hands. He has specifically stated that there were no injuries or scratches seen on thigh, breast, back and private parts. The case of the prosecution is that she was dragged first by Respondent No. 1 Rameshwar and then by both respondents in the field of cotton crops. She was made to lie down, respondent No. 2 pressed her mouth and respondent No. 1 committed forcible intercourse with her after removing her inner wear and also his own and all the time she was resisting. She is a girl of about 16 to 18 years. She is from village. It is difficult to believe that had she resisted, she would have suffered only two small injuries that too of a very little dimensions on the dorsal sides of her arms. 18. The learned appellate Judge has found that the medical evidence does not support the prosecution case in any way. In fact it appears to be against the theory of forcible rape or intercourse with the prosecutrix. 19. It is also found by him that as per evidence of prosecutrix Ku. Savita, there was complete sexual intercourse with emission. But then the CAs Report does not show the existence of semen in the vaginal smear and the clothes. CAs Report (Exh.24) clearly mentions that neither semen nor spermatozoa was detected on the slides of swab from vulva, pubic hairs and articles 1, 2, 5, 8 & 11. It is clear that had there been complete intercourse as alleged by the prosecutrix Ku. Savita, some semen & spermatozoa would have been found on these slides. Therefore, the medical evidence as well as the report of C.A. runs contrary to the evidence of the prosecutrix. 20. The learned appellate Judge has pointed out several discrepancies in the evidence of prosecutrix Ku. Savita and other witnesses including Police Patil. It is rather difficult to say that all these observations made by him are incorrect or perverse, though to some of them we are unable to concur. But fact remains that this is not a case of 'no corroboration' to the evidence of the prosecutrix, but it is a case of medical evidence being contrary to her story. The learned A.P.P. is unable to explain as to how such evidence can be reconciled with the theory of the prosecutrix that there was forcible complete intercourse despite her resistance in a field of cotton crops without resulting into any injuries on her rest of the body. 21. In the instant case, we had called for the clothes of the prosecutrix Ku. Savita, to verify as to whether it was Maxi or Petticoat seized from her by the Medical Officer who had examined her. Unfortunately, no clothes could be made available and the reports were received that no such property like Maxi is available in the police station or in the trial Court. There is lot of difference between the clothes; Maxi and the petticoat. It is necessary to note in this context that prosecutrix Ku. Savita in her evidence has stated that at the time of incident, she had a Maxi on her person and there were stains of blood & semen on her Maxi and the inner pant. It is also pertinent to note that the clothes on her person were taken by the Medical Officer, PW-1 Dr. Dilip Kulkarni. He has stated that she was wearing petticoat. He also stated that she was wearing inner pant of greenish colour with strip, which was soaked with blood stains and other stains, the same was preserved for analysis. He also stated that she was wearing Manila and blouse of white colour. As there is no case of the prosecutrix Ku. Savita that Manila and Blouse were removed, it is reasonable, to expect that the said Manila and Blouse of white colour would have been stained with mud or earth, but no such things are borne out from the record. As already stated above, the clothes were not produced, though they were called and therefore, it is not possible for us to verify as to whether the said Manila or blouse were stained with any mud or earth. As already pointed out above, CAs. report and medical evidence do not corroborate the testimony of prosecutrix Ku. Savita, on the contrary that evidence tend to cast doubt on the prosecution version. 22. The circumstances prevailing in the said village clearly makes out a case that in the cases of that village on allegations of rape, the evidence of prosecutrix cannot be treated as gospel truth. In the present case, as rightly pointed out by the learned appellate Judge, evidence of prosecutrix Ku. Savita requires corroboration. Her uncorroborated testimony cannot be relied upon for basing the conviction. The cases cited by the learned A.P.P are distinguishable on facts. It is true that the evidence of prosecutrix can be relied upon in the sex offences even if it is uncorroborated, but provided it is found wholesome trustworthy. Here is the case where material evidence i.e. medical evidence and CAs report tend to shed doubts on the prosecution case. The possibility of false accusation cannot be ruled out. The evidence of the prosecution witnesses is riddled with contradictions and omissions and top of all, she though claimed that she has resisted the forcible rape by the respondents, no remarkable injuries were found on her person. All this makes us to hold that the view taken by the learned appellate Judge cannot be said to be perverse. 23. Even if, it is assumed for a moment that the view taken by the learned trial Judge is probable; this would be a case of two views possible, one view taken by the learned appellate Judge to acquit the respondents, which is not altogether unreasonable and improbable. In these circumstances, the observations of the Apex Court, referred above, require us not to over-turn the appellate judgment of acquittal of the respondents. As such, the appeal is dismissed.

Author: S Dongaonkar

State Of Maharashtra vs Rameshwar Shridhar Jaware And ... on 27 August, 2007

Bombay High Court

JUDGMENT Spencer, J. 1. The appellant was summoned on 26th January 1924 to appear as a witness on 8th February. He did not appear and a warrant was issued and he was fined Rs. 40 for disobedience of summons. His explanation was that, as he was going to Court, after arriving at the place where the Court was held, he was met by the plaintiff and defendants who told him that the case had been adjourned. We have no means of testing whether this statement was true. The parties were not examined to corroborate him, but the Judge did not accept the explanation. He only gave him five days time to pay the fine. 2. It is argued that the Subordinate Judge acted without jurisdiction inasmuch as there was no issue of a proclamation or attachment of property before the fine was imposed. This argument is based on the decisions in Ashutosh Mullick v. Secretary of State [1920] 57 I.C. 302 and Ram Gopal v. Secretary of State [1920] 31 C.L.J. 363. I regret that I must express dissent from the opinion of two learned Judges of the Calcutta High Court who decided these oases. I am unable to construe the provisions of Rules 10 to 12 of Order 16 of the Civil Procedure Code as meaning that the issue of a proclamation or an order for attachment of property are conditions precedent to the imposition of a fine for non-attendance of a person who has been summoned to attend a Civil Court. Beachcroft, J., treats Rule 12 as an alternative to Rule 11 and he understands the words "such person" in Rule 12 as meaning a person against whom a proclamation has been issued or whose property has been attached. In my opinion "such person" means a person to whom a summons has been issued and who fails to attend under Rule 10(1). Rule 12 itself provides both for cases where an attachment has been made and for cases where an attachment has not been already made, but is made in enforcement of the order of fine. It seems to me that to say that a Judge cannot fine a witness for disobedience of summons unless the preliminaries are first gone through of attaching his property or issuing a proclamation against him is to put a great and unnecessary limitation on the powers of Courts to deal with refractory witnesses. The Subordinate Judge's order was thus passed in the exercise of his jurisdiction. 3. There is nothing to show that the witness had ever previously disobeyed a summons of Court. He did not prove that he was told by the parties that the case had been adjourned; and even assuming that story was true, it would not legally be a sufficient excuse for non-attendance. The fine of Rs. 40 is rather excessive and is in contrast with the fact that all the other witnesses who were fined in the case were excused when they appeared before the Court and represented their reasons for non-appearance. I reduce the fine imposed by the lower Court from Rs. 40 to Rs. 5 (five rupees). The excess will be refunded. In other respects the appeal is dismissed. No costs. Ramesam, J. 4. I entirely agree. The case in Ashutosh Mullick v. Secretary of State [1920] 57 I.C. 302, merely follows the earlier case in Ram Gopal v. Secretary of State [1920] 31 C.L.J. 363 and contains no additional reasoning. It seems to me that the argument addressed to Beachoroft, J., in Ram Gopal v. Secretary of State [1920] 31 C.L.J. 363, and which was rejected by him namely that Order 16, Rule 12 should be construed independently of Rule 11, and should be taken to refer to Rule 10, is sound and might have been accepted by him. I am of opinion that Order 16, Rule 12 deals with all cases of disobedience not covered by Rule 11, whether there has been attachment or not. If it were not so, there would be cases of flagrant disobedience with which Courts would have no power of dealing; but, apart from such considerations, Order 16, Rule 12 contains clear indications that it deals also with cases where there has been no attachment. It provides for a fresh attachment of property where the witness has failed to give a satisfactory explanation, if there, has been no attachment of property, and if there has been an attachment already, for sale. Both cases being expressly referred to in the section, it is difficult to construe Order 16, Rs. 12 as being confined to cases in which there has been an attachment. 5. I agree with the order passed by my learned brother.

Author: Spencer

In Re: Peta Narasayya vs Unknown on 30 April, 1925

Madras High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C) No. 21473 of 2004(F) 1. GEORGE P.U., S/O.ULAHANNAN, ... Petitioner 2. RAVEENDRAN KESAVAN, S/O.KESAVAN, 3. RANJI, S/O.GEORGE, MELATHIL HOUSE, Vs 1. STATE OF KERALA, REP: BY THE ... Respondent 2. THE DISTRICT COLLECTOR, For Petitioner :SRI.G.SUKUMARA MENON For Respondent :GOVERNMENT PLEADER The Hon'ble MR. Justice KURIAN JOSEPH Dated :06/07/2007 O R D E R KURIAN JOSEPH J. ---------------------------------------------- W.P.(C) No.21473 of 2004 ---------------------------------------------- Dated 6th July, 2007. J U D G M E N T The writ petition is filed mainly with the following prayers :- It is stated in the counter affidavit that any action can be taken in the matter only subject to the outcome of O.P.No.2599/99. Therefore, the writ petition is disposed of directing the 2nd respondent to take appropriate action in the case of the applications filed by the petitioners in the light of the judgment in the writ petition referred to above. The interim orders passed by this Court will continue till such time. KURIAN JOSEPH, JUDGE. tgs  OP NO. 2  KURIAN JOSEPH, J. ---------------------------------------------- ----------------------------------------------

George P.U. vs State Of Kerala on 6 July, 2007

Kerala High Court

[Section 29] [Complete Act]

Central Government Act

JUDGMENT M.F. Saldanha, J. 1. We have heard the learned Advocates for both contesting parties and the learned Government Advocate on merits. 2. Though the cause list shows that the learned Government Advocate is not on record, because of some confusion, a copy of the proceedings were handed over to the learned Government Advocate and he has been heard on merits. 3. The appellant claims to be an ex-serviceman and he had filed an application for resumption of the lands on this ground. That application was rejected on 8-12-1976 for certain reasons against which an appeal was filed to the Assistant Commissioner, who strangely enough returned the papers on the ground that he has no jurisdiction. This was on 15-1-1977. On 17-1-1977 itself the appellant filed an application to the Tribunal pointing out that he desires to file an appeal to the Assistant Commissioner and that the Tribunal should wait until the resumption issue is decided. It appears that even though the appeal was filed to the Special Assistant Commissioner, for some strange reason he did not hear it and dispose it of and the record shows that ultimately, the appeal papers went to the Tribunal. In the meanwhile, the Tribunal after waiting for a considerable period of time, had passed an order dated 13-6-1977 granting occupancy rights and the Tribunal by its order dated 18-5-1993 has disposed of the appeal on the ground that since the occupancy rights are granted, that nothing survives in the appeal. To add to the state of mess, the appellant has preferred W.P. No. 19114 of 1993 in which both the orders namely, the Tribunal's order granting occupancy rights dated 13-6-1977 and the order rejecting the appeal dated 18-5-1983 have been challenged in the same writ petition. It is unfortunate that this is the manner in which cases are conducted and on this ground alone, the Court ought to have normally dismissed the writ petition but, the end result is that for the fault of the lawyers the client will be put into great difficulty. The learned Single Judge ultimately heard the parties and confirmed the Tribunal's order granting occupancy rights against which the present appeal has been filed. 4. The only submission canvassed before us by the appellant's learned Advocate is that the appellant claims to be an ex-serviceman since he was working for the Air Force and the contention is that in this capacity, the law makes special provision for persons of this category to resume the lands and such an order is competent even against a valid tenant. It is true that the application for resumption was rejected in the first instance, but, the submission put forward is that on a mere perusal of that order it will be seen that it is highly vulnerable and that the appellant had every right to get the order corrected by the Appellate Forum in which case the lands would have been resumed even assuming the respondents' answer to the description of a tenant. The error seems to have been committed by the Government Authorities who not only did not entertain and dispose of the appeal in time but committed the further blunder of sending it to the Land Reforms Tribunal which clearly had no jurisdiction to entertain an appeal of this type. The only fair order therefore, would be to set aside the order dated 18-5-1993 and to direct the Tribunal to separate the appeal papers from the record and to forward them to the Assistant Commissioner who has jurisdiction to hear the appeal and the Assistant Commissioner to issue notice to the parties or their L.Rs as the case may be, to hear them and to dispose of the appeal in an outer limit of four months from today. The appellant was within his rights when he applied to the Tribunal on 17-1-1977 pointing out that he intends appealing against the rejection of his resumption application and that the Tribunal should wait until that appeal is decided. Obviously, after waiting for a period of six months, the Tribunal assumed that the appeal had been disposed of and it appears from the Tribunal's order that the appellant was absent when the Tribunal disposed off the application for grant of occupancy rights. Though the appellant would be at fault to some extent, the position that arises is that the order for grant of occupancy rights could only survive or could only be granted provided the application for resumption was rejected and finally disposed off. If that application had succeeded then there could be no question of granting occupancy rights. As of now, we have no option except to pass a conditional order which is to the effect that if the present appellant succeeds in the appeal before the Assistant Commissioner, then that order shall be filed before the Tribunal. In the event of the appellant succeeding then even if it is on technical grounds the order dated 13-6-1977 would have to be set aside and the Tribunal would have to then issue fresh notice to the parties or their L.Rs as the case may be and re-decide the case in the light of the changed circumstances. Since the outcome of the appeal is uncertain, we have passed a conditional order because if for any reason, the appellant is unsuccessful in the resumption proceedings then we see no ground on which the Tribunal's earlier order should be disturbed. 5. The appeal succeeds to this extent and stands disposed off. No order as to costs.

Author: M Saldanha

Krishnoji Gundu Kulkarni vs State Of Karnataka And Ors. on 24 September, 2002

Karnataka High Court

JUDGMENT R.R. Yadav, J. 1. Heard the learned Counsel for appellant Shri A.L. Chopra at length. I have been taken through the judgments given by both the courts below with the assistance of Mr. Chopra. 2. Instant Second Appeal is concluded by concurrent finding of fact recorded by both the courts below and no substantial question of law is involved. 3. It is well to remember that interference with the concurrent finding of fact by this Court under Section 100 CPC must be avoided unless warranted by compelling reasons. There are inherent limitation for interference in concurrent finding of facts recorded by courts below. In such cases where both the courts below have recorded concurrent finding of fact, this Court is not expected to reappreciate the evidence just to replace the concurrent finding of facts recorded by two courts below. 4. In the present case the learned lower appellate court has fairly appreciated the evidence on record adduced by both the parties and has confirmed the conclusion of the trial court. In such a situation I do not think it fit and proper to interfere with the concurrent finding recorded by both the courts below within the meaning of amended Section 100 CPC. Assuming for arguments sake that other view is possible on reappreciation of evidence on record even then this Court will refrain to interfere with the concurrent finding of facts recorded by both the courts below unless it is demonstrated that the aforesaid finding is either perverse or based on no evidence on record. Nothing is brought to my notice that either the finding is perverse or based on no evidence, therefore, the concurrent finding of facts recorded by both the courts below deserves to be affirmed. 5. Learned Counsel for the appellant Shri Chopra urged before me that it is true that when the agreement of tenancy was entered into on 4.11.69, the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred to as Act. No. 17 of 1950) was not applicable to the premises in question. It is further admitted that there were stipulations in the contract of tenancy that in the event of any default in payment of rent that tenancy would be forfeited. 6. It is vehemently urged by Mr. Chopra that since Act No. 17 of 1950 was made applicable to the town of Napasar vide Notification published on 18.9.79 in Rajasthan Raj Patra, therefore, applicability of the Act is to be extended to the premises in question. The aforesaid argument is not acceptable for the reasons given hereinbelow. 7. It is to be noticed that in the present case no such plea was raised in the written statement and no such issue was framed about the applicability of Act No. 17 of 1950 for the reasons best known to the tenant-defendant-appellant. No steps were taken to amend the written statement as postulated under Order 6 Rule 17 CPC at any stage of the suit or appeal. There is no discussion about the aforesaid point in the judgment of both the courts below. 8. In view of the aforesaid facts and circumstances, I am not inclined to allow the appellant to raise a new point which was not raised before any of courts below by way of amending the written statement. 9. Learned Counsel for the appellant stated that the aforesaid ground was taken before the learned lower appellate court but no memo of appeal has been filed along with the Second Appeal to demonstrate that the point being argued before me was also argued before learned lower appellate court. A pointed question was asked to the learned Counsel for appellant whether he has got a copy of memo of appeal with him but he replied in negative. In absence of memo of appeal how it can be argued that the aforesaid point was taken in memo of appeal. 10. This Court takes judicial notice of the fact that many grounds are taken in the memo of appeal but only some of them are argued and rest of them are left over. Even the memo of appeal is produced and it is shown that such ground was taken, it would not be sufficient unless it is further proved before this Court that this ground was argued by the counsel before the learned lower appellate court. 11. In view of the aforesaid facts and circumstances of the case this Court has no option except to believe the statement of the learned lower appellate court recorded in its judgment as to what points were argued. Since there is no reference about the aforesaid argument in the judgment, therefore, I am satisfied that this argument was never raised before the learned lower appellate court. The aforesaid principle of law must be taken to be settled to the effect that statement of facts recorded in a judgment are to be treated to be last word on the subject. I am fortified in taking the aforesaid view from a decision' rendered by the apex court in case of State of Maharashtra v. Ramdas Shrinivas Nayak and Ors. reported in 1982, SC 1249. 12. Learned Counsel Shri A.L. Chopra prayed that he is running a petrol pump over the disputed premises and for shifting his business to some other premises at least one year's period in the interest of Justice may be given. I think it Just and proper to allow the appellant to remain in possession over the disputed premises for a period of 8 months from today provided he deposits the entire decreetal amount before the trial court and continue to deposit the future rent month by month. The appellant is further directed to execute a written undertaking before the learned trial court that immediately after expiry of 8 months from today he will hand over peaceful possession to the land lord. 13. With the aforesaid observation and direction the instant Second Appeal is hereby dismissed in limine.

Author: R Yadav

Chandra Filling Service vs Ramprasad on 4 December, 1996

Rajasthan High Court

In the Central Information Commission  at New Delhi File No: CIC/AD/A/2011/000546 Date of Hearing  :  May 19, 2011 Date of Decision :  May 19, 2011 Parties:  Appellant   Shri J S Gupta Kothi No. 1225,  Sector 19, Faridabad Haryana 121 002 The Appellant was present. Respondents  Northern Railway  Office of the Divisional Railway Manager, State Entry Road, New Delhi Represented by: Shri S P Mahi, ADRM, Shri Jagjit Singh, Sr.DMM, Dr. Sashi, Sr. DMO,  and   Shri  N.K. Kalia, CDMS (assisted by Shri Bhagvan Das, Sr. Clerk) Information Commissioner :   Mrs. Annapurna Dixit ___________________________________________________________________ Decision Notice As given in the decision In the Central Information Commission  at New Delhi File No: CIC/AD/A/2011/000546 ORDER Background 1. The Applicant filed his RTI­application with the PIO, Northern Railway, New Delhi on 16.06.2010  seeking   information   (such   as   PFA  bills,   PFA  samples,   Court  order  sheet,  judgments   ,   TA  bills,  exhausted imprest amounts etc.) against 36 points for the years 2006 to 2009. The PIO replied to this  application on 02.08.2010. The  Applicant   being aggrieved with the PIO's reply, filed his first  appeal with the Appellate Authority (AA) 27.08.2010 and received a reply from him on 10.12.2010.  The Appellant thereafter, filed the present appeal before the Commission on 01.01.2011 alleging that  incorrect, incomplete, misleading information has been given  to him.  Decision  2. Heard submissions. 3. Given the volume of the information sought herein, the compilation of which will disproportionately  divert the resources of the Public Authority,  it is considered best to allow  the   disclosure   of   the  present information through inspection of all relevant  records. It is  accordingly   directed   that  the PIO, in consultation with the Appellant, should identify the  dates   for   inspection   and  communicate the same to the Appellant formally   and then  allow   the   Appellant   to   inspect   the  relevant records (based on the Appellant's second appeal)  on the said identified dates.  Copies of  documents/file notings identified by the Appellant may be provided to him.  In the event any related  file/document  is   not  traceable  the  same may  be  intimated  to the  Commission  in the  form  of an  affidavit , with a copy of the same to the Appellant , while giving reasons for its non­availability.  Be  that as it may, the PIO may also provide certain information without the Appellant having to inspect  the files such as copies of specific letters, orders, judgments etc.  Information to be provided by end  June, 2011.  4. As regards complaint regarding  delayed response to the Appellant, the PIO/CMS, Northern Railway,  Delhi Division is directed to  showcause as to why penalty should not be imposed upon him  for the delay in furnishing the information. The explanation may reach the Commission by 20.06.11.  5. The appeal is disposed of with the above direction.  (Annapurna Dixit) Information Commissioner Authenticated true copy  (G.Subramanian) Deputy Registrar Cc: 1. Shri J S Gupta Kothi No. 1225,  Sector 19, Faridabad Haryana 121 002 2. The Appellate Authority Northern Railway  Office of the Divisional Railway Manager, State Entry Road, New Delhi 3. The Public Information Officer  Northern Railway  Office of the Divisional Railway Manager, State Entry Road, New Delhi 4. Officer In­charge, NIC

Mr.J S Gupta vs Ministry Of Railways on 19 May, 2011

Central Information Commission

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Author: Ram Mohan Reddy

R Ananthraju vs The State Of Karnataka on 3 December, 2009

Karnataka High Court

Gujarat High Court Case Information System Print SCA/5826/2011 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 5826 of 2011 ====================================== SHAHPATEL ILABEN BIPINCHANDRA THROUGH POA - Petitioner Versus PATEL JAYANTIBHAI MOTIBHAI - Respondent ====================================== Appearance : MR PJ KANABAR for the Petitioner. None for the Respondent. ====================================== CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 04/05/2011 ORAL ORDER Office objections to be removed on or before 6th June,2011, failing which, Registry is directed to place the matter in the board on 14th June,2011 for appropriate order for dismissing the same for non-prosecution. [M.R.SHAH,J] *dipti     Top

Author: M.R. Shah,&Nbsp;

Shahpatel vs Patel on 4 May, 2011

Gujarat High Court

Court No. - 54 Case :- APPLICATION U/S 482 No. - 23171 of 2010 Petitioner :- Khalak Singh Respondent :- State Of U.P.Petitioner Counsel :- Vijay Bahadur Shivhare Respondent Counsel :- Govt. Advocate Hon'ble Vinod Prasad J. In the revised list, learned counsel for the applicant is not present to press this application, which stands dismissed in default. Order Date :- 19.7.2010 AKG/-

Khalak Singh vs State Of U.P. on 19 July, 2010

Allahabad High Court

[Section 240(1A)] [Section 240] [Complete Act]

Central Government Act

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 30073 of 2007(E) 1. M/S. SDF INDUSTRIES LTD., ... Petitioner Vs 1. CIRCLE INSPECTOR OF EXCISE, ... Respondent 2. THE DEPUTY COMMISSIONER OF EXCISE, 3. THE EXCISE COMMISSIONER, 4. STATE OF KERALA, REPRESENTED BY For Petitioner :SMT.PRABHA R.MENON For Respondent : No Appearance The Hon'ble MR. Justice S.SIRI JAGAN Dated :04/11/2008 O R D E R S. SIRI JAGAN, J. ------------------------------------ W.P.(C)No.30073 OF 2007 ---------------------------------------- Dated this the 4th day of November, 2008 JUDGMENT The petitioner challenges Ext.P13 order, whereby the petitioner's application for permission for expansion of their distillery was rejected on the ground that the petitioner's financial condition is not satisfactory. 2. I have heard the learned Government Pleader also. 3. The order does not disclose as to how the Government has come to the conclusion that the financial condition of the petitioner company is not satisfactory to enable the petitioner to invest in expansion. On the other hand, the petitioner has produced documents to show that earlier, twice, the petitioner has been granted permission for expansion. As a result of the expansion, the financial condition of the petitioner had improved and the petitioner was able to pay off considerable liabilities of the petitioner is the contention of the petitioner, which could not be disputed by the respondents. W.P.(c) No.30073/07 2 4. In the above circumstances, I am not satisfied that Ext.P13 has been passed by the Government after applying their mind properly to the facts. Accordingly, Ext.P13 is quashed and the Government is directed to pass fresh orders, after considering the application of the petitioner for permission for expansion. I make it clear that the order on the face of it shall show on what materials the Government has come to the conclusion to be arrived at and on what basis they have assessed the financial capacity of the petitioner. Orders shall be passed within a period of six weeks from the date of receipt of a copy of this judgment. The writ petition is disposed of as above. S. SIRI JAGAN, JUDGE Acd  W.P.(c) No.30073/07 3

M/S. Sdf Industries Ltd vs Circle Inspector Of Excise on 4 November, 2008

Kerala High Court

10. In the result I order that Morning Star Private Ltd. (the company concerned in this case) be wound up. Parties will bear their own costs. JUDGMENT M.U. Isaac, J. 1. This is a petition by the Income-tax Officer, Company Circle, Trivandrum, under Section 439 of the Companies Act, 1956 (hereinafter referred to as " the 1956 " Act), read with Sections 433 and 560(5)(b) and 560(6) thereof, to wind up an incorporated company by name Morning Star (Private) Ltd. The company was assessed to income-tax by the petitioner for the assessment years 1957-58 to 1963-64 both inclusive. It did not pay the tax due under these assessments; and penalties were imposed for default by the petitioner. A sum of Rs. 59,460.42 is now due from the company under the aforesaid assessments by way of arrears of tax, interest thereon and penalties imposed for non-payment of tax. The petitioner issued several notices calling upon the company to pay the above amount; but he did not succeed in recovering anything. This petition has, therefore, been filed to wind up the company. 2. It appears that the company was not carrying on business for sometime ; and the Registrar of Companies took action under Section 560 of the 1956 Act. The name of the company was struck off the register, and the Registrar of Companies published a notice thereof in the Gazette of India, dated August 28, 1965. This application is resisted by one of the shareholders, who was a director of the company. According to him, the company was carrying on the business of passenger transport; and due to the nationalisation of that business, the company lost all its business. Hence, it was struck off the register, and dissolved under Section 560(5) of the 1956 Act. He contends that this petition is not maintainable as the company has ceased to exist consequent on the dissolution. 3. The question for decision is whether a company which has been struck off the register and dissolved under Section 560(5) of the 1956 Act can be wound up. The learned counsel for the petitioner contends that Clause (b) of the proviso to Section 560(5) applies to the case ; and the company is liable to be wound up, even though it has been struck off the register and dissolved. Sub-section (6) of Section 560 empowers a court to order the name of the company, which has been struck off the register, to be restored to the register on the application of the company or any member or creditor thereof if the court is satisfied that the company was, at the time of striking off, carrying on business or in operation or otherwise that it is just that the company be restored to the register. It is not disputed that, if the company is thus restored to the register, it can then be wound up. But the contention is that the company was not carrying on business or in operation at the time of striking off, and that there are no grounds justifying the restoration of the company to the register. Sub-sections (5) and (6) of Section 560 read as follows : " 560. (5) At the expiry of the time mentioned in the notice referred to in Sub-section (3) or (4), the Registrar may, unless cause to the contrary is previously shown by the company, strike its name off the register, and shall publish notice thereof in the Official Gazette, and on the publication in the Official Gazette of this notice, the company shall stand dissolved : Provided that- (a) the liability, if any, of every director, the managing agent, secretaries and treasurers, manager or other officer who was exercising any power of management, and of every member of the company, shall continue and may be enforced as if the company had not been dissolved ; and (b) nothing in this sub-section shall affect the power of the court to wind up a company the name of which has been struck off the register, (6) If a company, or any member or creditor thereof, feels aggrieved by the company having been struck off the register, the court, on an application made by the company, member or creditor before the expiry of twenty years from the publication in the Official Gazette of the notice aforesaid, may, if satisfied that the company was, at the time of the striking off, carrying on business or in operation or otherwise that it is just that the company be restored to the register, order the name of the company to be restored to the register ; and the court may, by the order, give such directions and make such provisions as seem just for placing the company and all other persons in the same position as nearly as may be as if the name of the company had not been struck off." 4. Sub-section (5) corresponds to Section 247(5) of the Indian Companies Act, 1913 (hereinafter referred to as " the 1913 Act "), the only difference being that Clause (b) of the proviso to Sub-section (5) of Section 560 did not exist in the 1913 Act. Section 247(5) of the 1913 Act reads as follows : " At the expiration of the time mentioned in the notice the Registrar may, unless cause to the contrary is previously shown by the company, strike its name off the register, and shall publish notice thereof in the local Official Gazette, and, on the publication in the Official Gazette of this notice, the company shall be dissolved : provided that the liability (if any) of every director and member of the company shall continue and may be enforced as if the company had not been dissolved." 5. Section 353(5) of the English Companies Act of 1948 is the same as Section 560(5) of the 1956 Act. 6. The question whether a company which had been struck off the register and dissolved under Section 247(5) of the 1913 Act can be wound up arose incidentally for consideration before a Division Bench of the Judicial Commissioners' Court of Nagpur in Shekh Kaudu v. Rerar Ginning Co. Ltd., A.I.R. [1928] Nag. 194, 195 The application for winding up in that case was made by a shareholder ; and it was dismissed by the District Judge on the ground that, after the company was struck off the register, a shareholder automatically ceased to be a member of the company, and he was not therefore entitled to apply under Section 247(5) of the 1913 Act. In dealing with the above ground, which the court rejected, it stated as follows: " The proviso to Section 247(5), Companies Act, shows clearly that a company can be wound up after it has been dissolved." 7. This question arose for decision before a Division Bench of the Madras High Court consisting of P.V. Rajamannar C.J. and Venkatarama Iyer J. in Nataraja Textile Mills Ltd. v. S.V. Angidi Chettiar, [1954] 24 Comp. Cas 94, 102 ; I.L.R. [1955] Mad. 635 . It was contended in that case that the absence of a provision similar to proviso (b) of Section 353(5) of the English Companies Act of 1948 in Section 247(5) of the 1913 Act, made all the difference between the English law and the Indian law on the subject, and that, under the Indian law, there was no scope to wind up a company which has been dissolved, consequent on its name being struck off the register. The contention was rejected ; and, in doing so, the court referred to the above Nagpur decision. Venkatarama Iyer J., who delivered the judgment of the court, stated as follows : " Section 353(5)(b) only makes explicit what is really implied in Section 353(5)(a). If the directors and members of the company continue to be liable as if the company had. not been dissolved, it must follow that the court must have jurisdiction to order winding-up, if that is necessary for enforcing those obligations. As argued by Mr. Veeraswami, the effect of a striking off of a company under Section 247 is not the same as dissolution thereof on the completion of the administration of the concern under Section 194. When a company is struck off under Section 247(5), there may be assets to be realised and debts to be discharged and for that purpose there might be need for administration and the effect of the provision in Section 247(5), that for certain purposes the company shall continue as if it had been dissolved, is to invest the court with jurisdiction under Section 162 to order its winding-up. The only decision which has been cited before us bearing on this question is Shekh Kaudu v. Berar Ginning Co. Ltd., A.I.R. 1928 Nag. 194 There it was held that a company could be wound up even after it had been struck off under Section 247(5). We are accordingly of opinion that, even apart from an order restoring the company to the register under Section 247(6), the court has jurisdiction under Section 162 to order winding up of the concern. " 8. I respectfully agree with the view expressed in the above decision and the reasons stated therein. In the above case there was no dispute that, if there was in the Indian statute a provision similar to proviso (b) of Section 353(5) of the English Act, the court would be entitled to wind up a company dissolved on account of its name being struck off the register. As already stated, such a provision has now been incorporated in Section 560(5) of the 1956 Act; and it must therefore follow that even the argument advanced before the Madras High Court is not available in this case. 9. The learned counsel for the contesting director, however, submits that Clause (b) of the proviso to Section 560(5) of the 1956 Act refers only to a company, whose name has been struck off the register and not to a company whose name was struck off and dissolved by publishing a notice thereof in the Official Gazette. His contention is that striking off the register and dissolution consequent on the publication of the notice are different things happening at different stages, and that, while Clause (b) permits a winding up of a company which has been struck off the register, there is no scope for winding up a company dissolved consequent on the striking off, as the company ceases to exist on the dissolution. This contention has also been well met in the Madras decision. The dissolution of the company under Sub-section (5) is the consequence of the publication of the notice that it has been struck off the register. Yet there may be assets and liabilities of the company to be administered. What Clause (b) of the proviso provides is that nothing in this sub-section, namely, the fact that the company has been struck off the register and that it has been dissolved consequent on the publication of the notice thereof, shall affect the power of the court " to wind up a company, the name of which has been struck off the register ". A company dissolved under Sub-section (5) is certainly " a company, the name of which has been struck off the register ". To say that Clause (b) of the proviso would not apply to such a company, in respect of which notice of striking off has been published, would be adding such a restriction to the power of the court, which has been expressly saved by the above Clause of the proviso for obvious reasons. The argument of the learned counsel for the contesting director, if accepted, would defeat the remedy available to an aggrieved person to invoke the jurisdiction of the court to wind up a company whose name has been struck off the register. No period is prescribed for publication of the notice of striking off. Normally, the Registrar should do it as soon as the name is struck off; and this would mean that the power of the court to wind up such a company, which is expressly saved by Clause (b) of the proviso, can scarcely be invoked by an aggrieved or interested person. Such a construction of the Clause is contrary to the obvious legislative intent of the said provision, which, as stated by the Madras High Court, only makes explicit what is really implied by Clause (a) of the proviso. Sub-section (6) of Section 560 of the 1956 Act empowers the court to restore to the register a company whose name has been struck off the register on an application made by any of the persons mentioned therein within 20 years of the date of publication of the notice of striking off; and the court can do it, if it is just to do so. This sub-section does not refer to the dissolution of the company consequent on the publication of the notice ; and it cannot be contended that an application under this sub-section is not maintainable, as the company is not existent consequent on the dissolution. If that were so, such a contention is not available for the same reason against the exercise of the power of the court, expressly saved by Clause (b) of the proviso to Sub-section (5) for the winding up of a company whose name has been struck off the register. On reading Sub-sections (5) and (6) of Section 560, it appears to me clear that the court's power to wind up a company whose name has been struck off the register is not affected by the publication of the notice of striking off by the Registrar.

Author: M Isaac

In Re: Morning Star Private Ltd. vs Unknown on 7 August, 1969

Kerala High Court

> Title: Statutory resolution regarding disapproval of Sugar Development Fund (Amendment) Ordinance (No. 4 of 2008) and Sugar Development Fund (Amdnement) Bill, 2008 (Resolution Withdrawn and Bill Passed ). श्री मोहन सिंह (देवरिया)  : उपाध्यक्ष महोदय, मैं आपकी आज्ञा से प्रस्ताव करता हूं:- “कि  यह  सभा 5 फरवरी, 2008 को राष्ट्रपति द्वारा प्रख्यापित  चीनी  विकास       निधि  (संशोधन) अध्यादेश,   2008  (2008 का संख्यांक 4) का निरनुमोदन   करती   है।   ..(Interruptions) श्री बृज किशोर त्रिपाठी (पुरी): उपाध्यक्ष महोदय, मुझे एक मिनट का समय दे दीजिए।...( व्यवधान) उपाध्यक्ष महोदय : त्रिपाठी जी, ज़ीरो ऑवर में आप अपनी बात रख सकते हैं। …( व्यवधान) MR. DEPUTY-SPEAKER: Nothing is going on record except what Shri Mohan Singh says. (Interruptions) … * THE MINISTER OF AGRICULTURE AND MINISTER OF CONSUMER AFFAIRS, FOOD AND PUBLIC DISTRIBUTION (SHRI SHARAD PAWAR): Sir, I beg to move**: “That the Bill further to amend the Sugar Development Fund Act, 1982 and the Sugar Cess Act, 1982 be taken into consideration.”   MR. DEPUTY-SPEAKER: Motions moved: “That this House disapproves of the Sugar Development Fund (Amendment) Ordinance, 2008 (No. 4 of 2008) promulgated by the President on 5 February, 2008.”   “That the Bill further to amend the Sugar Development Fund Act, 1982 and the Sugar Cess Act, 1982, be taken into consideration.”   * Not recorded * * Moved with the recommendation of the President SHRI SHARAD PAWAR: Mr. Deputy Speaker Sir, I wish to inform the House that the sugar season 2006-07 had unprecedented surplus production of sugarcane, which resulted in an all time high production of about 283 lakh tonnes of sugar against an estimated domestic consumption of about 190 lakh tonnes. The surplus production of over 90 lakh tonnes in 2006-07 coupled with an unviable international market where sugar prices were quite low because of an international surplus of about 110 lakh tonnes and an expected surplus production of cane and sugar in 2007-08 sugar season in India and abroad resulted in depressed sugar prices to the tune of Rs.450 to Rs. 600 per quintal in the country. The sugar factories incurred substantial losses and were unable to pay cane dues resulting in accretion of cane price arrears of farmers. The cane price arrears in June 2007 were Rs.4964 crore. Under the circumstances, the Central Government had to intervene to dispose of the large surplus of sugar. The Government announced a) financial incentives for exports of sugar and b) creation of buffer stock of 50 lakh tonnes and announcement of buffer subsidy for maintenance of the same, with the objective to stabilize prices and improve liquidity position of the factories, so that the arrears of farmers could be cleared. However, since the sugar surplus was so high and international market still unviable, the cane price arrears of cane farmers continued to be alarmingly high, despite the steps taken by the Government. There was, therefore, urgent need to further assist the factories with more liquidity support so that the cane dues of farmers could be further cleared. Decision was accordingly taken by the Government to give loans from banks to the factories against notional excise duty on total production of sugar in 2006-07 and likely production in 2007-08 sugar seasons, with the condition that the loan would be used to pay the cane arrears/dues of farmers. Interest rates of 12 per cent per annum made the loans unattractive and considering that the scheme would be a non-starter, the Government decided to provide full interest subvention on the loans. Without the assurance from the Government regarding the interest subvention and payments of the same within the financial year, the banks seemed reluctant to extend the loans to avoid the liability from appearing in their balance sheet for 2007-08. Considering the importance of the scheme and its implications for the cane farmers, the Government decided to provide the amount on account interest subvention to the extent of 5 per cent per annum from the budget, and allowed payment of the balance of interest subvention up to 7 per cent per annum from the SDF.[MSOffice25]   Due to heavy losses incurred by the sugar industry during 2006-07 sugar season, the factories did not have adequate working capital or funds to start their factories in time for the 2007-08 season. The delay resulted in diversion of cane to gur or khandsari manufacturers - where the farmers got lesser price for their cane - and in delayed harvesting, which resulted in delayed sowing of wheat crop. The Parliament was not in Session and the farmers were agitating for their dues, and the factories needed funds quite badly, sometimes to even start crushing of cane. Therefore, Mr. Deputy Speaker Sir, enabling legislative amendments to defray interest subvention and augment the SDF corpus right from 2007-08 financial year, were accomplished through the Ordinance. The Government decided to promulgate the Ordinance without further delay so that the loans get released without actually waiting for the Parliament to meet and pass the necessary legislative amendments. With the steps taken by the Government by way of buffer subsidy, export assistance and now the loans from banks including interest subvention, the sugar mills have been able to clear a substantial amount of the cane arrears of the farmers. As per latest figures received from the States in 2008, the arrears, excluding current year's dues is about Rs.1090 crore. I wish to submit that the Ordinance was promulgated by the President of India on 5th February 2008. Banks have already sanctioned about Rs.2482 crore from then with another Rs.464 crore of loan proposals in the pipeline for sanction. Payments have already begun being made to the farmers for the arrears against the sugar season of 2006-07 as also for the cane supplied in the 2007-08 season. Had the Government not promulgated the Ordinance, about crucial two months would have passed with further accumulation of the cane dues of the farmers. Some sugar factories would not have got started or started later, resulting in loss of cane crop and loss of time to farmers to sow another crop. Sir, in the end, I may emphasise that the Ordinance has been promulgated in public interest with the sole objective of clearing cane price arrears of farmers, mostly small and marginal, and also ensure timely payments against cane supplies in 2007-08 sugar season. THE MINISTER OF PARLIAMENTARY AFFAIRS AND MINISTER OF INFORMATION AND BROADCASTING (SHRI PRIYA RANJAN DASMUNSI):  After this legislative business is disposed of, we have two other items in the List of Business; Forward Contracts Regulation (Amendment) Bill and Prasar Bharati (Broadcasting Corporation of India) Amendment Bill.  On behalf of the Government I have today requested the hon. Speaker in writing that Forward Contracts Regulation Bill we would not like to take it up today and the last item regarding Prasar Bharati we would like to take up today. MR. DEPUTY-SPEAKER: We will see that later after this Bill is disposed of. श्री मोहन सिंह  : उपाध्यक्ष महोदय, कुछ हमारी नियमावली, संसद की परम्परा - उसके अनुसार कोई अध्यादेश जब विधेयक के रुप में सदन के समक्ष विचार के लिये आता है तो उसके लिये निरनुमोदन का प्रस्ताव प्रस्तुत करने की जो परिपाटी रही है, उसका पालन करते हुये मैं निरनुमोदन का प्रस्ताव तो रख रहा हूं लेकिन मेरी मंशा इसे 'डिसअप्रूव' करने की नहीं है। मैं चाहता हूं कि किसी भी सरकार का यह कर्तव्य है कि  वह गन्ना उत्पादकों के हितों का विशेष ध्यान रखे लेकिन साथ ही चीनी उत्पादक कम्पनियों के हितों का ध्यान रखना भी आवश्यक है।  यदि हम चीनी उद्योग को पूरे-पूरे बाजार के हवाले कर देंगे तो किसी भी हालत में, चाहे वह सरकारी हो या सहकारी हो या निजी क्षेत्र की चीनी मिल हो, वह किसानों का समुचित भुगतान नहीं कर सकती है। अगर हम गन्ने के इतिहास के अलावा चीनी उत्पादकों के इतिहास को देखें तो पायेंगे कि हर तीसरे साल गन्ने का उत्पादन घटता है।[s26]  गन्ने की घटती उत्पादकता को देखकर बाज़ार में चीनी के दाम बढ़ने लगते हैं, यानी डिमांड और सप्लाई का सिद्धांत हर क्षेत्र में लागू है और चीनी और गन्ना के क्षेत्र में यह विशेष रूप से लागू है। जब तीसरे साल गन्ने का उत्पादन कम हो जाता है और चीनी की कीमत बढ़ने लगती है, मिलों को फायदा होता है और गन्ना काश्तकारों को कोई भी कीमत देने की स्थिति में मिलें हो जाती हैं, क्योंकि उनकी अपनी क्षमता भर की पेराई के लिए गन्ना बाज़ार में उपलब्ध हो जाता है, ऐसे में जब एक वर्ष गन्ना काश्तकारों को गन्ने की कीमत अधिक मिलती है तो दूसरे वर्ष में ही गन्ने की बुवाई का एकरेज विस्तृत हो जाता है। नतीजा यह होता है कि गन्ना अधिक होने से चीनी का निर्माण भी अधिक होता है और बाज़ार में जब चीनी अधिक हो जाती है तो उसकी कीमत घटने लगती है और गन्ना मिलें सांसत में पड़ती हैं, झंझट में पड़ती हैं। इसके ही निराकरण के लिए इस देश में चीनी फंड की स्थापना की गई थी कि जब चीनी मिलें परेशानी में पड़ें तो उनकी समस्याओं के समाधान के लिए हम कुछ उपाय कर सकें। पिछले दो वर्ष का इतिहास देखें तो उत्तर प्रदेश में बड़ी क्षमता की नई चीनी मिलें स्थापित हुई हैं। उत्तर प्रदेश की सरकार ने इतिहास में गन्ने का सबसे अधिक मूल्य 125 रुपये प्रति क्विंटल निर्धारित किया। लेकिन यदि पिछले साल के बाज़ार को देखें तो सरकारी गन्ना मूल्य का जो एग्रीड प्राइस था, भारत सरकार एक स्टैच्युटरी प्राइस सर्कुलेट करती है पूरे देश के लिए, लेकिन कुछ राज्य सरकारें चीनी मिलों की सहमति से एग्रीड प्राइस तय करती हैं। उत्तर प्रदेश की ऐसी परिपाटी रही है। भारत सरकार ने 80-85 रुपये प्रति क्विंटल का भाव तय करके भेज दिया, लेकिन उत्तर प्रदेश सरकार ने 125 रुपये प्रति क्विंटल का भाव निर्धारित किया। लेकिन व्यावहारिक दृष्टि से चीनी मिलों ने खेत में जाकर गन्ना किसानों को 135-136 रुपये प्रति क्विंटल का भाव उऩके अपने ही खेत में दिया। नतीजा यह हुआ कि एक वर्ष के प्रयास से उत्तर प्रदेश के गन्ना काश्तकारों को 19 हज़ार करोड़ रुपये का भुगतान स्वयं कृषि मंत्री जी के अपने शब्दों के अनुसार पिछले वर्ष उत्तर प्रदेश में वहाँ की चीनी मिलों ने किया था। उसके चलते जहाँ पहले महाराष्ट्र का भारत में चीनी उत्पादन में नंबर एक का स्थान था, उसको छीनकर नंबर एक का स्थान उत्तर प्रदेश ने ले लिया। लेकिन उसका घाटा क्या हुआ? इस वर्ष गन्ना उत्पादन का क्षेत्र इतना बढ़ गया और पिछले साल चीनी का उत्पादन जैसा मंत्री जी ने स्वयं इस बात को कहा है कि भारत के अंदर जितनी चीनी की खपत है, उससे 80-90 लाख टन हमने अपने देश में अधिक उत्पादन किया। चूँकि हमने पिछले 11 वर्षों से भारत की अर्थव्यवस्था को दुनिया की अर्थव्यवस्था से जोड़ दिया, इसलिए दुनिया में जो ठहराव आता है अर्थव्यवस्था का, उसका सीधा असर भारत पर पड़ता है और यदि दुनिया की अर्थव्यवस्था छलांग मारती है तो भारत भी उसमें कुछ रेंगने लगता है और भारत सरकार अपनी पीठ ठोंकने लगती है कि यह तो हमारी नीतियों का प्रतिफल है कि भारत रेंग रहा है। लेकिन जब गिरता है और ठहराव आता है तो भारत सरकार उसकी जिम्मेवारी लेने को तैयार नहीं होती। यदि आप आँकड़े देखें तो पिछले तीन महीनों में हिन्दुस्तान का औद्योगिक उत्पादन साढ़े पाँच फीसदी से अधिक गिरा है ठहराव की ओर। उसी तरह कृषि उत्पादन के लिए भारत  सरकार संकल्प करती है कि चार फीसदी हो जाए, लेकिन बीच में वर्ष 2001-2002 में तो शून्य फीसदी था। अब दो-ढाई फीसदी के ऊपर आकर रुका हुआ है। यही स्थिति होती है कि जब भारत में चीनी का उत्पादन अधिक होता है तो दुनिया में चीनी का बाज़ार भाव गिर जाता है। जब भारत में गेहूँ हो, चावल हो, सरसों हो या चीनी हो, कुछ भी हो, भारत में जिस खाद्य पदार्थ का उत्पादन कम होता है, दुनिया के बाज़ार में उसकी कीमत बढ़ जाती है, क्योंकि खाद्यान्न की  खपत सबसे अधिक खरीदकर, भारत जैसे देश में होती है। कृषि मंत्री जी ने हमारे ही प्रश्न के उत्तर में स्वीकार किया कि 2100 रुपये प्रति क्विंटल के हिसाब से हिन्दुस्तान की सरकार को गेहूँ की अंतिम खेप खरीदकर लानी पड़ी। [h27]            उसका कारण यह है कि हमारे देश की कमी को देखते हुए अंतर्राष्ट्रीय बाजार में गेहूं की कीमत बढ़ गई और आसमान छूने लगी। हमारे देश के अतिरिक्त उत्पादन को देख कर चीनी की कीमत दुनिया में कम हो गई, जिसका नतीजा यह हुआ कि दीवालियेपन की स्थिति में हिन्दुस्तान की चीनी मिलें हो गईं और गन्ना काश्तकारों के गन्ना मूल्य का भुगतान नहीं हुआ। अभी थोड़े दिन पहले सदन में यह बात आई थी और मंत्री जी ने उसे स्वीकार किया, आपने सहायता देने की कोशिश की। इस फंड से पहली बार नहीं, जब राजनाथ सिंह जी भारत के कृषि मंत्री थे तो उन्होंने भी इस फंड से पैसा देने की कोशिश की कि उनका समय से भुगतान हो जाए। जैसे मैंने कहा कि हर तीन साल के अंतराल पर चीनी और गन्ने के उत्पादन, उसके निर्माण एवं उसकी कीमत में ठहराव तथा कमी आती है, उसका असर आज से तीन साल पहले भी था। उस समय उनकी सरकार की कोशिश थी कि हम से इसी तरह पैसा लेकर चीनी मिलें भुगतान कर दें और बाद में तीन साल के इंस्टालमेंट पर हमारा भुगतान भारत सरकार करती रहेगी।           उपाध्यक्ष महोदय, हमारी भारत सरकार से केवल इतनी शिकायत है, अपनी तरफ से कृषि मंत्री जी और भारत सरकार ने कोशिश की कि इस फंड से फ्री इंटरेस्ट लोन दे दें। किसानों पर भारत सरकार ने बड़ी कृपा की है, ये कहते हैं कि हम सात फीसदी पर किसानों को ऋण दे रहे हैं, यह तारीफ की बात है, लेकिन चीनी मिल-मालिकों को आपने शून्य प्रतिशत पर दे दिया। चीनी मिलों के इस ऋण के ऊपर जो ब्याज है, स्वयं मंत्री जी ने इस बात को स्वीकार किया कि हम उस इंटरेस्ट का पांच फीसदी भुगतान भारत सरकार के बजट से और सात फीसदी, हमारी जो चीनी निधि है, उस पैसे से करेंगे। इंटरेस्ट का कोई भार गन्ना मिलों के ऊपर नहीं आएगा। किसानों के ऊपर भारत सरकार का जो दया का दायरा है, वह कुछ सीमित है और चीनी मिलों के ऊपर जो आशीर्वाद का दायरा है, वह ज्यादा विशाल है। उनके ऊपर ज्यादा मेहरबानी है कि तुम भी जीवित रहो, हम तुम्हें जो कर्जा देंगे, वह शून्य फीसदी पर होगा और किसानों को बचाने के लिए हम जो कर्जा देंगे, उस कर्जे की रकम सात फीसदी होगी। उसके बाद ये प्रचार करेंगे कि हम किसानों की भरपूर सेवा करने में लगे हैं, लेकिन दूसरा पक्ष इसे स्वीकार करने के लिए तैयार नहीं है। आपकी मंशा को हम चुनौती नहीं देते, इसके पीछे इतनी ही मंशा थी कि चीनी मिलें गन्ना काश्तकारों के मूल्य का भुगतान कर दें।           उपाध्यक्ष महोदय, हम दुख के साथ कहना चाहते हैं कि भारत सरकार की इस कोशिश के बावजूद चीनी मिलों ने गन्ना काश्तकारों के खरीद का इस वर्ष का कोई पैसा नहीं दिया। कृषि मंत्री जी ने स्वयं स्वीकार किया था कि उत्तर प्रदेश की सबसे खराब हालत है। उनके पिछले हफ्ते सदन में दिए गए वक्तव्य के अनुसार, आज भी उत्तर प्रदेश की गन्ना मिलों पर वहां के काश्तकारों का एक हजार नौ करोड़ रुपया बाकी है। यह इस वर्ष के सीजन का आधा पैसा है, मैं ऐसा समझता हूं कि पूरा सीजन होने तक ढाई हजार करोड़ से अधिक केवल अकेले उत्तर प्रदेश के गन्ना काश्तकारों के गन्ने के मूल्य का भुगतान शेष रह जाएगा। ...( व्यवधान) उपाध्यक्ष महोदय : पंजाब में भी यही हालत है। श्री मोहन सिंह  : उपाध्यक्ष महोदय, आपके माध्यम से कृषि मंत्री जी से हम यह विनती करना चाहते हैं कि जब भारत सरकार इतनी कृपालु है तो चीनी मिलों से इस बात की भी गारंटी लेनी चाहिए कि 15 दिन के भीतर हम जो पैसा अपने फंड से दे रहे हैं, वह पैसा किसानों को समय पर मिलना चाहिए। यदि उसके भुगतान में एक महीने से अधिक देरी हो तो उसका भुगतान चीनी मिल को सूद सहित, उस मूल्य का भुगतान गन्ना काश्तकारों को करना पड़ेगा। यह प्रावधान भारत के कृषि मंत्री जी को किसानों के हित में करना चाहिए। इन थोड़े से सुझावों के साथ मैं इस बात का आश्वासन मंत्री जी से चाहूंगा कि उत्तर प्रदेश के गन्ना काश्तकारों का और साथ ही साथ देश भर के गन्ना काश्तकारों के खरीद का भुगतान एक महीने के भीतर हो। यदि मंत्री जी ऐसा आश्वासन हमें देंगे तो यह जो डिसएप्रूवल का प्रस्ताव है, मैं इन्हें वचन देता हूं कि हम इनके विधेयक का पूर्णतया समर्थन करेंगे। उपाध्यक्ष महोदय: यू.पी. के साथ पंजाब को भी इन्क्लुड कर लेना चाहिए।[rep28]      योगी आदित्यनाथ (गोरखपुर) : उपाध्यक्ष महोदय, चीनी विकास निधि (संशोधन) विधेयक, 2008 माननीय मंत्री जी ने सदन के सम्मुख प्रस्तुत किया है, जिस पर सदन विचार कर रहा है। माननीय मंत्री जी की इच्छा शक्ति  या  उनकी नीयत पर हमें संदेह नही है, लेकिन जो हमारे सहयोगी माननीय मोहन सिंह जी ने कहा कि चीनी मिलों पर तो माननीय मंत्री जी कृपा कर रहे हैं, परन्तु इस देश के किसान, जिनके संरक्षण के लिए इस प्रकार की नीतियां बनाई गई थीं, वह इसमें कहीं भी नजर नहीं आ रहा है और न कहीं दिखाई दे रहा है। हम इस बात को बड़े दुख के साथ कहते हैं कि सरकार की इन्हीं गलत नीतियों के कारण पिछले 10 वर्षों में देश के डेढ़ लाख से अधिक किसान आत्महत्याएं कर चुके हैं और आज भी वह क्रम लगातार जारी है, फिर चाहे वह विदर्भ का मामला हो जो माननीय कृषि मंत्री जी के गृह राज्य में पड़ता है। उत्तर प्रदेश के बुंदेलखंड में किसान लगातार आत्महत्याएं कर रहे हैं। पूर्वी उत्तर प्रदेश, जहां से हम लोग चुनकर आते हैं, वह सचमुच इस देश का वृहद् गन्ना उत्पादन का क्षेत्र है।           महोदय, आजादी से पहले, 1920 और 1930 के दशक में वहां चीनी मिलें स्थापित हुई थीं। पूर्वी उत्तर प्रदेश के जितने भी छोटे-बड़े कस्बे हैं, उन सब के विकास में चीनी मिलों ने अपना योगदान दिया है। उन चीनी मिलों के नाम पर ही उन कस्बों का नामकरण और उस क्षेत्र का विकास हुआ है। हम आज दुख के साथ कहना चाहते हैं कि उस क्षेत्र का किसान "खून के आंसू बहा रहा है" और सरकारें चैन की नींद सो रही हैं। गन्ना किसान अपनी खड़ी फसल को खेतों में आग लगाकर जला रहा है, क्योंकि उसे मालूम है कि उसके पिछले गन्ने के मूल्य का भुगतान नहीं हुआ और इस बार के गन्ने के मूल्य का भी भुगतान नहीं होगा।           महोदय, शुगर डैवलपमेंट फंड चीनी मिलों के जीर्णोद्धार, एक्सपेंशन करने और उनके मॉडर्नाइजेशन हेतु बनाया गया था, किन्तु ऐसा कुछ भी नहीं हो पाया। उत्तर प्रदेश राज्य चीनी निगम के अन्तर्गत चलने वाली जितनी भी चीनी मिलें हैं, वे या तो पुरानी पड़ चुकी हैं, बन्द पड़ी हुई हैं या फिर उनकी इतनी क्षमता नहीं कि वे प्रतिस्पर्धा में जो आधुनिक चीनी मिलें हैं, उनका मुकाबला कर सकें और इसी का परिणाम है कि उन चीनी मिलों पर गन्ना किसानों का करोड़ों रुपया वर्षों से बकाया है, फिर वे चाहे सरकारी क्षेत्र की चीनी मिलें हों, सहकारी क्षेत्र की चीनी मिलें हो या निजी क्षेत्र की हों। गोरखपुर में निजी क्षेत्र की एक चीनी मिल है, जिस पर पिछले छः वर्षों से लगभग 30 करोड़ रुपए, गन्ना किसानों के बकाया हैं और उन 30 करोड़ रुपयों को अभी तक देने का कोई नाम नहीं ले रहा है और न उस पर कोई ब्याज ही दिया जा रहा है और वह शुद्ध रूप से गन्ना किसानों का बकाया है। उसे देने की अब तक कहीं कोई व्यवस्था नहीं है। सरकार ने अभी तक ऐसी कोई व्यवस्था नहीं की है कि चीनी मिलें गन्ना किसानों के बकाया मूल्य का भुगतान कर सकें। यह आश्चर्यजनक है कि कयों चीनी मिलों द्वारा पिछले सालों के गन्ना किसानों के बकाया धन का भुगतान नहीं किया जा रहा है? सरकार की गलत नीतियों के कारण पूर्वी     उ. प्र. की अधिक्तर  चीनी मिलें या तो  जर्जर स्थिति में है अथवा बन्द पड़ी हैं। गन्ने के उत्पादन के बारे में बताया गया कि पिछले दो वर्षों में गन्ने का अधिक उत्पादन हुआ। वहां के किसानों ने गन्ना उत्पादन भी किया क्योंकि डिमांड थी, इसलिए वहां किसानों ने डिमांड के अनुसार गन्ना पैदा किया, लेकिन उत्पादन के साथ आज जिस प्रकार की स्थितियां पैदा हुई, वे ठीक नहीं हैं। सरकार गन्ने का मूल्य घोषित करती है, सुप्रीम कोर्ट ने भी कहा कि चीनी मिलों को 125 रुपए प्रति क्विंटल के हिसाब से गन्ना किसानों को भुगतान करना चाहिए, परन्तु सचाई कुछ और है। अगर आज गन्ना किसान, अपना गन्ना चीनी मिलों तक ले जा रहा है, तो 80 से 82 रुपए प्रति क्विंटल गन्ने के मूल्य का भुगतान बमुश्किल हो रहा है। यह मूल्य भी उन लोगों को मिल रहा है, जिनके पास साधन हैं, शक्ति है और जो समर्थ हैं। सामान्य और गरीब किसान तबाह होता जा रहा है, क्योंकि उसे अपने गन्ने की पर्ची तक नहीं मिल पा रही है। जब उसे गन्ने की पर्ची प्राप्त नहीं होगी, तो वह अपना गन्ना, गन्ना माफियाओं को 35 से 40 रुपए प्रति क्विंटल की दर पर बेचने को मजबूर हो रहा है, क्योंकि शासन ने कहीं कोई व्यवस्था नहीं की है।[r29]            उपाध्यक्ष महोदय, सरकार द्वारा गन्ना किसान को उसके गन्ने का मूल्य सरकार और सुप्रीम कोर्ट द्वारा दिए गए निर्देश के अनुसार 125 रुपए प्रति क्विंटल की दर पर खरीदने के लिए कहीं कोई व्यवस्था नहीं है। इसलिए जो बचा हुआ गन्ना है, उसे वह खेत में ही जलाने के लिए मजबूर हो रहा है। माननीय मंत्री जी ने कुछ प्रावधान किए हैं, लेकिन जब तक इन प्रावधानों से किसान सीधे लाभान्वित नहीं होंगे, तब तक इस प्रकार की नीतियों को परिवर्तित करने और उन्हें संशोधित करने का बहुत ज्यादा मतलब नहीं है। इसलिए मैं माननीय मंत्री जी से अनुरोध करूंगा और जानना चाहूंगा कि हम लोग जब किसानों के हित की नीतियां बनाते हैं, तो किसान हमारी नीतियों के दायरे में सीधे क्यों नहीं आते? आखिर चीनी मिल मालिक ही क्यों, आखिर बड़े कास्तकार ही क्यों उनका लाभ उठाते हैं, जो अपना संरक्षण कर लेते हैं? हम बैंक लोन तो माफ करते हैं, लेकिन बैंक लोन में कौन से व्यक्ति लाभान्वित हो रहे हैं, यह नहीं देखते हैं। बैंक से जो लोग लोन लेते हैं, वे ही लाभान्वित होते हैं। किसी गरीब किसान को बैंकों से लोन कहां मिलता है? यह असंभव है या बहुत ही कठिन है। इन स्थितियों में माननीय मंत्री जी ने जो बात कही थी कि पहले शुगर डैवलपमेंट फंड में जो 15 रुपए जाते थे, उसे अब वे बढ़ाकर 25 रुपए कर देंगे। इसके अलावा उन्होंने और भी प्रावधान किए हैं उनमें एक यह भी है कि बैंक चीनी मिलों को जो लोन देंगे, उससे उनका जीर्णोद्धार होना चाहिए। हम मानते हैं कि चीनी मिलों का जिर्णोद्धार होना चाहिए, उनका आधुनिकीकरण होना चाहिए, लेकिन इसके साथ-साथ माननीय मंत्री जी ने यह प्रावधान भी किया है कि जो ऋण वे लें, उससे वे किसानों का भुगतान करें, लेकिन यह हो नहीं रहा है। वास्तविक स्थिति में ऐसा कहीं नहीं हो रहा है और खासतौर से पूर्वी उत्तर प्रदेश में हमने देखा है कि वहां किसानों को चीनी मिलों द्वारा उनके गन्ने के मूल्य का भुगतान नहीं किया जा रहा है।           महोदय, मैं माननीय मंत्री जी से इस बात का पुरजोर अनुरोध करूंगा कि अगर इस प्रकार का प्रावधान करना ही है, तो सामान्य उपभोक्ता पर, चाहे 10 पैसे ही एक किलो ही भार आता होगा, कम से कम उपभोक्ता और किसान को उसके दायरे से मुक्त कर के चीनी मिलें उस भार को वहन करें, क्योंकि अब यह तय है कि चीनी मिलें एक तो किसानों के गन्ने के मूल्य का भुगतान नहीं कर पा रही हैं और दूसरे वहां कम भी तोलती हैं। वहां कोई जांच करने वाला नहीं है। अन्ततः किसान ही उसका शिकार होता है। फिर चाहे चीनी मिलों के द्वारा उनके साथ जो कदाचार तोल के माध्यम से किया जा रहा है या फिर गन्ना मूल्य का भुगतान न कर के। जैसा मैंने कहा कि इस बात की क्या गारंटी है कि चीनी मिलें किसाने के गन्ने के मूल्य का भुगतान 125 रुपए प्रति क्विटंल से ही करेंगी, क्योंकि उच्चतम न्यायालय के आदेश के बावजूद अब तक ऐसा नहीं हो रहा है। वहां कोई चीनी मिल गन्ना किसान को इस दर पर भुगतान नहीं कर रही है। इसलिए मैं माननीय मंत्री जी से अनुरोध करना चाहूंगा कि यद्यपि आप अच्छी नीयत से इस विधेयक को लाए होंगे, तथापि ऐसी व्यवस्था करें कि उस दायरे में केवल चीनी मिल मालिकों का ही लाभ न हो, बल्कि चीनी विकास निधि, गन्ने को पेरने के बाद जो चीनी उत्पादित होती है, आखिर उसके मूल में किसान है, किसान का ही गन्ना है, इसलिए किसान भी उससे सीधे लाभान्वित हो सके। इस प्रकार की व्यवस्था, इसमें संशोधन के माध्यम से लाई जाए। इस बात के लिए मैं माननीय मंत्री जी से अनुरोध करूंगा। इसके साथ-साथ मेरा अनुरोध यह भी होगा कि चीनी मिल मालिकों द्वारा जो ऋण उन्हें शुगर विकास निधि से प्रदान किया जाए, वित्तीय संस्थाओं या बैंकों से उन्हें जो लोन उपलब्ध कराया जाए, वहीं यह व्यवस्था भी की जाए कि किसान को उसके गन्ने के बकाया का भी भुगतान सुनिश्चित किया जाए। इन्हीं शब्दों के साथ, मैं अपने वक्तव्य को समाप्त करता हूं। श्री बालासाहिब विखे पाटील (कोपरगांव)  : उपाध्यक्ष महोदय, आपने मुझे इस विधेयक पर बोलने का समय दिया, इसके लिए आपको धन्यवाद। इस बिल के समर्थन और रिजोल्यूशन के विरोध के लिए मैं खड़ा हुआ हूं। श्री मनमोहन सिंह जी ने भी कहा और मुझे भी यह कहने में कोई संकोच नहीं है कि यह बिल सही समय पर और एक सही काम हेतु लाया गया है। इसका मैं विरोध नहीं कर रहा हूं, लेकिन किसानों के गन्ने के बकाया मूल्य का भुगतान समय पर हो जाए, इस हेतु हमें मंत्री जी की ओर से आश्वासन मिलना चाहिए।           उपाध्यक्ष महोदय, सब लोगों को पता है कि वर्ष 1982 से शुगरकेन डैवलपमेंट फंड चल रहा है। अब तक इस फंड में लगभग 4,400 करोड़ रुपए जमा हो चुके हैं और उसमें से लगभग 3,500 करोड़ रुपए इस फंड में ट्रंसफर हो चुके हैं। हर साल टैक्नीकल अपग्रेडेशन होता है, किसान के गन्ने की उपज बढ़ाने का काम होता है और खेती में टैक्नौलौजी ट्रंसफर होती है। [r30]      मैं हमारे कृषि मंत्री, यूपीए की चेयरपर्सन श्रीमती सोनिया गांधी और श्री मनमोहन सिंह का अभिनन्दन करना चाहूंगा क्योंकि दो साल पहले गन्ने के किसानों के लिए सरकार ने 1300, 1400 और 1500 रूपये दाम तय किए थे, लेकिन उनको 1000 रूपये और 900 रूपये मिल रहा था। वर्ष 2004-05 में 16 रूपये, वर्ष 2005-06 18 रूपये और वर्ष 2006-07 में 17 रूपये था। आपको यह सुनकर ताज्जुब होगा कि हमारे देश में चीनी मिल का स्टाक कितना है? वर्ष 2003 में हमारा कैरीओवर स्टाक 40 लाख टन था, जबकि 113 अन्य प्राडक्शन, 101 लाख टन शुगर प्रोडक्शन, 41 लाख टन इम्पोर्ट शुगर, टोटल एवैलेबिलिटी 314.92 लाख टन और इन्टरनल कन्ज़म्पशन 183 थी। इसीलिए 115 लाख टन हुआ था और 116 हमारा क्लोजिंग स्टॉक था। वर्ष 2005-06 में हमारा कैरीओवर स्टॉक 40 लाख टन था, प्राडक्शन शुगर 59 लाख टन, इम्पोर्ट शुगर 3.62 लाख टन और टोटल एवैलिबिटी 233.21 टन था। इन्टरनल कन्ज़म्पशन 183.21 और एक्सपोर्ट 13.61 था। पिछले साल 2 लाख 87 हजार टन गन्ने का उत्पादन हुआ था। इस साल 2 लाख टन चीनी का उत्पादन कम होगा। इसका कारण यह है कि किसान को समय पर पैसा नहीं मिल रहा है। मनमोहन सिंह जी के कहने पर किसान ने गन्ने के अलावा दालें इत्यादि फसल बोना शुरू किया। तीन साल से किसानों का बकाया बढ़ रहा था। इसके बाद शुगर पैकेज आया। उसने टर्म लोन लिया, लेकिन उससे भी काम नहीं बना। इन्टरनेशनल मार्किट में चीनी के जो दाम थे, उससे कई गुना हमारे यहां कम थे। एक्सपोर्ट करने में भी घाटा हो रहा था क्योंकि वर्ष 2000 में विदेश में 1300-1400 रूपये प्रति क्वींटल दाम थे, जबकि यहां 900 रूपये प्रति क्वींटल चीनी का दाम था। सरकार ने एक्सपोर्ट पर सब्सिडी भी दी थी। लेकिन वह सब्सिडी डालर के मुकाबले रूपये के बढ़ने के कारण कामयाब नहीं रही। इसके कारण चीनी का एक्सपोर्ट कम हो गया है, क्योंकि एक्सपोर्टर्स को घाटा हो रहा है।           आपने इस साल नौ रूपये एक्साइज डयूटी को फिर से बढ़ा दिया है। इसके अलावा आपने तीन रूपये सेस भी लगाया हुआ है। कुल मिलाकर 97 रूपये हो गए हैं। केन डेव्लपमेंट फण्ड 14 से बढ़कर 25 रूपये हो गया है। चीनी का पैसा किसान से लेते हैं और किसान को ही देने का प्रयत्न करते हैं। इसमें हमें कोई आपत्ति नहीं है। लेकिन मनमोहन सिंह जी सही नहीं हैं, गलत हैं, क्योंकि 12 रूपये विदाउट इंटरेस्ट चीनी पर ऋण दे रहे हैं, सात प्रतिशत भारत सरकार अपने बजट से दे रही है, लेकिन सात प्रतिशत केन डेव्लपमेंट फण्ड से किसको जा रहा है? यह पूरा पैसा चीनी मिलों को जा रहा है और उन्हें यह इस शर्त के साथ दिया जा रहा है कि गन्ने का बकाया और एरिअर्स चुका दें। इसके अलावा उन पर लेबर्स का भी काफी बकाया है, बैंकों का बकाया है। इसलिए किसानों, लेबर और बैंकों का भुगतान किया जाना चाहिए।   महोदय, हमारा यह फण्ड माडर्नाइजेशन के लिए है। हमारे हिन्दुस्तान में आंकड़ों के अनुसार 552 चीनी मिलें हैं, उसमें से शायद 242 निजी चीनी मिलें हैं। मुझे लगता है कि इन आंकड़ों में कुछ गलती है। मेरे ख्याल से 552 में से 500 सहकारी में हैं और 42 मिलें पब्लिक सेक्टर में हैं। सहकारी सेक्टर में दो तरह की चीनी मिलें हैं, निजी चीनी मिलें और कॉपरेटिव चीनी मिलें[r31] ।  मैं यह चाहूंगा कि कोआपरेटिव चीनी मिल के पास तो कोई रास्ता नहीं है, जैसे निजी चीनी मिल तो आई.पी.ओ. में, स्टाक एक्सचेंज में चली जाती है, स्टाक एक्सचेंज में जाने के बाद उनके शेयर की कीमत भी बढ़ती है, उसको आई.पी.ओ. भी करते हैं, एक्सपेंशन भी करते हैं, पावर प्लांट भी लगाते हैं, एथेनोल भी लगाते हैं, हालांकि वह तो एस.डी.एफ. में ज्यादा आता नहीं है, लेकिन सहकारी चीनी मिल में हम तो मैम्बर के अलावा किसी से पैसा नहीं लेते। आपके पंजाब में भी तो सहकारी आन्दोलन की चीनी मिल है, इसलिए हमको तो शुगरकेन डैवलपमेंट फंड के अलावा कोई सहारा नहीं है।           जैसे एथेनोल की बात है, एथेनोल में 21.50 रुपये पूरे देश के लिए कीमत तय हुई। आज भी महाराष्ट्र में मंत्री जी को पता है कि एथेनोल इतना कम पैट्रोलियम कम्पनी लेती नहीं। वे कहती हैं कि हमारा टेंडर 19 रुपये का है। यह केबिनेट में तय हुआ है। सरकार ने मुम्बई में मीटिंग करके इसे तय किया है, लेकिन अभी काफी एथेनोल कम्पनियां नहीं ले रही हैं। इसके ऊपर भी मैं मंत्री जी का ध्यान आकर्षित करूंगा कि उसके ऊपर ध्यान दें। इसके लिए मैं कह रहा हूं कि बैगास से हम बिजली बनाने की बात कर रहे हैं, वह भी एस.डी.एफ. से हम फंड दे रहे हैं। यह तो एक ठीक बात है कि चीनी मिल के लिए एक इंटीग्रेटिड प्रोजैक्ट होना चाहिए। जब चीनी मिल लगाएंगे, तब खाली चीनी मिल नहीं लगाएंगे, उससे बिजली भी बनाएंगे, एथेनोल भी बनाएंगे, हाई प्रैशर बॉयलर भी लगाएंगे। कई पुरानी चीनी मिलें ऐसी हो गई हैं कि उनमें हाई प्रैशर बॉयलर की जरूरत है, कहीं टैक्नोलोजी ट्रंसफर की जरूरत है, नई तंत्र नीति लाने की जरूरत है, लेकिन वह हाई कास्ट हो जाती है और हाई कॉस्ट होने के कारण फिर उसकी कीमत बढ़ जाती है। उत्पादन की, चीनी की कीमत बढ़ने के कारण फिर वह चीनी मिल घाटे में चली जाती है, कोआपरेटिन चीनी मिलों की खास कर मैं बात कर रहा हूं।           दूसरे मैं यह भी बात कर रहा हूं कि एग्रो प्रोसेसिंग चीनी मिल जैसा एक और भी फंड हो जाये, जो एग्रो प्रोसेसिंग में कोआपरेटिन यूनिट आएगी, जो हमारी बाकी भी फसल होती हैं, उसके लिए भी थोड़ा फंड हो जाये और उसके कारण हम एग्रो प्रोसेसिंग कोआपरेटिव में लगायें, उसका कुछ पैकेज बनाकर किसान को सही दाम मिले। आज किसान कहां आत्महत्या कर रहा है, जहां किसान को ठीक दाम नहीं मिल रहा है, लेकिन गन्ने के दाम इस समय तो ठीक मिल रहे हैं, चीनी के दाम भी इस समय ठीक हैं, लेकिन आज अन्तर्राष्ट्रीय मार्केट में चीनी के दाम हमारे यहां से इतने कम हैं, जिसके हिसाब से हमें जितना लाभ होना चाहिए, उतना लाभ नहीं हो रहा है। यह बात ठीक है। यू.पी., बिहार में हमारी चीनी मिलें किसान को कितना दाम दे रही हैं, कितना नहीं दे रही हैं, मुझे इसका इतनी जानकारी नहीं है, लेकिन जब हमने हाई टैक्नोलोजी की तरफ जाना है, भारत सरकार ने इसके लिए एक टैक्नोलोजी मिशन भी बनाया है। टैक्नोलोजी मिशन ने क्या काम किया है, कितना काम किया है, उसकी एकाउंटेबिलिटी होनी चाहिए। कितनी चीनी मिलों को कितनी टैक्नोलोजी की उन्होंने भुगतान किया है और चीनी मिल को पैसे देने के बाद उससे कितना उत्पादन बढ़ा, कितनी रिकवरी बढ़ी, क्योंकि टैक्नोलोजी ट्रंसफर टैक्नोलोजीकल अपग्रेडेशन के बाद हमारी रिकवरी बढ़नी चाहिए।           हमारे जो 16 जोन हैं, उसके ऊपर हमारी लेवी चीनी के दाम तय हो जाते हैं। आज कई बार लेवी के दाम कम होते हैं और मार्केट में चीनी के दाम ज्यादा होते हैं। मार्केट में दाम ज्यादा होने के कारण चीनी मिल लेवी वाली सरकार उठाती नहीं है, कोई कांट्रैक्टर नहीं उठाता है, फिर जब बाजार में चीनी मिल के दाम कम हो जाते हैं और लेवी चीनी के दाम ज्यादा होते हैं, पिछले साल में जैसी स्थिति हुई तो सब राज्य सरकारें और जो निजी कांट्रेक्टर होते हैं, वे पूरी लेवी की चीनी उठाते हैं, क्योंकि, वह चीनी किसके पास जाती है, बिलो पावर्टी लाइन वाले को जाती है या डिस्ट्रीब्यूशन सिस्टम में जाती है या नहीं जाती है या वहां क्या होता है, यह जानकारी सब को है। लेकिन मैं यह कहना चाहूंगा कि जब यह स्थिति आती है तो मिनिमम प्राइस कैसा होता है। हमारा पिछले साल और इस साल तो 81 रुपये कुछ पैसे प्राइस है, अभी और भी बढ़ेगा। मैं यह चाहूंगा कि लेवी के दाम जब कम होते हैं और कम से कम जो फ्री सेल के प्राइस आपने लिए हैं, उसी हिसाब से लेवी के दाम तय होने चाहिए। उसके दाम कम हो जाते हैं तो सरकार को कम से कम उसके ऊपर कम्पेंसेशन देना जरूरी है। इसलिए मैं यह चाहूंगा कि चीनी के लिए निर्यात और आयात की एक दस साल की नीति होनी चाहिए। साल दो साल में मन में आया, चीनी का आयात किया, दिल में आया चीनी बाहर जाने से रोक दी, इससे चीनी उद्योग और किसान, दोनों को घाटा हो रहा है। चीनी में तीन साल, पांचसाल के बाद एक साइकिल आता है, हर बार दो साल अच्छे होते हैं, किसान का तीसरा साल खराब होता है। दो साल मिल का भी घाटा होता है और किसान को भी घाटा होता है और गन्ने की उपज इतनी कम हो जाती है कि फिर मिल की स्पर्धा हो जाती है कि कौन किसका गन्ना ज्यादा खरीद ले। इसीलिए 10-15 साल की गन्ने की और चीनी की एक दीर्घकालीन नीती हो। चीनी हमेशा एक राजनीति का विषय रहा है।[R32]  चीनी के दाम हमेशा राजनीति का विषय रहे हैं, गन्ने के दाम हमेशा राजनीति का विषय रहे हैं, लेकिन हम राजनीति के बाहर आकर चीनी मिल, चीनी और गन्ने के लिए कोई हमेशा के लिउ दीर्घकालिक नीति बनायें।  पहले ड्वेल प्राइसिंग कंट्रोल सिस्टम था, इसमें पहले 40-60 था, फिर 50-50 हो गया, फिर 60-40 फिर 70-30, अभी 90 प्रतिशत फ्री सेल है और 10 प्रतिशत लेवी सुगर है।           महोदय, मैंने अखबार में पढ़ा है कि इसमा, जो निजी उद्योगों का एक संगठन है, वह चाहता है कि चीनी उद्योग पर नियंत्रण बिल्कुल खत्म कर दिया, इसे डी-रैग्युलेट कर दिया जाए और दीर्घकालीन कर दिया जाए।  मैं कहना चाहूंगा कि कुछ समय तक इसे डी-कंट्रोल करना या डी-रैग्युलेट करना अभी ठीक नहीं है, क्योंकि पता नहीं कि अगले साल क्या साइकल आएगी? हाल में विदेश में भी चीनी के दाम थोड़े बढ़ रहे हैं और हिंदुस्तान में अभी चीनी के दाम ठीक हैं। सभी चीनी मिलें भी वैसे ही काम कर रही हैं, पैकेज का पैसा तो उनको मिल ही रहा है।  उन्हें पिछले साल का भी पैसा मिल रहा है और इस साल का भी मिलेगा, लेकिन राज्य सरकार को देखना जरूरी है कि यह दाम किसान के पास तक पहुंचता है या नहीं।            महोदय, केंद्र सरकार चीनी मिल को पैसा देती है, लेकिन जब राज्य सरकार एक एडवाइजरी प्राइज कमेटी तय करती है, तो उनका यह फर्ज है कि भारत सरकार ने जो पैकेजेज दिए हैं, उन पैकेजेज के हिसाब से दाम किसानों को मिलते हैं या नहीं, उसे देखे। अगर वे यह सब नहीं देखेंगे, तो फिर कैसे काम चलेगा? हमारे कृषि मंत्री जी इसके जानकार हैं। उनको पूरी तरह से पता है कि चीनी मिल की क्या स्थिति होती है, लेकिन साथ ही साथ राज्य सरकार को भी थोड़ा जिम्मेदारी उठानी है।            महोदय, आपने बेल बजायी है, अब मैं ज्यादा समय नहीं लूंगा। मैं इतना कहना चाहूंगा कि इस बिल का समर्थन करना जरूरी है और जो सुगरकेन डेवलपमेंट फंड है, इसका और भी विस्तार होना चाहिए, क्योंकि जब-जब समय आता है, तब-तब हम अमेंडमेंट करते हैं। कई बार इसका अमेंडमेंट हो चुका है।  एक कांप्रिहैंसिव बिल लाया जाए, जिससे सरकार को पूरा अधिकार हो।  चीनी मिल और किसान की जो समस्यायें आती हैं, उन समस्याओं से निपटने के लिए उस बिल से एक महत्वपूर्ण काम लेना है और इसके लिए सही काम करें, इसके लिए मैं मंत्री जी से आग्रह करूंगा।  मैं पुनः मंत्री जी को धन्यवाद देता हूं कि उन्होंने आर्डिनेंस बिल्कुल सही समय पर निकाला।  आपको पता है और मंत्री जी ने भी बताया कि गन्ने की मिल दो महीने लेट शुरू हुयीं, क्योंकि उन्हें पता नहीं था कि उनका क्या होने वाला है?  दिसंबर में आर्डिनेंस नहीं हो जाता, तो और भी एक महीना चीनी मिलें लेट हो जातीं। इससे किसान की हालत और भी खराब हो जाती।  हमारे मित्र कह रहे थे कि अभी किसान गन्ना जला रहे हैं। वे दो महीने लेट हो गए। अक्टूबर-नवंबर में मिलें चालू होनी चाहिए थीं, लेकिन दिसंबर के आखिर में और जनवरी में ये शुरू हुयीं।  इसी कारण आर्डिनेंस सही समय पर निकाला।  जो निर्णय हुआ, इसके लिए मैं उनका अभिनंदन करता हूं और आपने बेल बजायी है, इसलिए आपका आदर करते हुए मैं अपनी बात को यहीं विराम देता हूं। DR. BABU RAO MEDIYAM (BHADRACHALAM): Mr. Deputy-Speaker, Sir, I thank you for giving me the opportunity to speak on this Bill. I oppose the Statutory Resolution disapproving the Ordinance and I would like to support the Sugar Development Fund (Amendment) Bill. This is a welcome measure. While supporting this Bill, I would like to voice some doubts and also give some suggestions to the Government.           Sir, production of sugar and sugarcane has increased during the last two crop seasons, but the market price of sugar has decreased. This goes against the market rule and so, between the end product sugar and sugarcane which is the raw material, the farmer is the worst sufferer because he is being linked with the industrial interests. The Sugar Development Fund which is intended to help the farmer is primarily given to the sugarcane crushing units and that too at the market price of the end product, not at the buying price of sugarcane.           Today, the condition of sugarcane growers is very miserable. For example, in my own State of Andhra Pradesh there are about 4,25,000 sugarcane growers. This year they are not able to plant sugarcane and almost out of 6 lakh acres usually planted, this time in 90,000 acres they are not able to plant sugarcane.[R33]  [r34] They are in indebtedness and there are over dues for the last two crop years.  They have not been given their dues properly by the industries.  So, almost Rs.65,000 crorer are due to the sugarcane farmers in my State.            While, in almost 38 units, where sugarcane crushing is going on, people are getting loans, subsidies on transport, etc. and so many other benefits, the actual grower is at a loss.  He is not able to grow more now. He is almost on the verge of indebtedness and burning his own crop instead of sending it to the factory. The factory people are not giving cutting permission at the right season and are also deceiving the sugarcane growers. In this respect, I would like to humbly submit that a separate fund should be allocated for the growers and this should be separated from the crushing units.  That will be very useful to the growers. Secondly, the Minimum Support Price, which is being promised, is not being observed by the crushing units.  They are paying less than Rs.950 per tonne, whereas the recommended amount is Rs.1,500 per tonne.  The M.S. Swaminathan Committee recommended for Rs.1,800 per tonne, but it was never followed in any part of the country.  Hence, the remunerative price should be ensured and should be given in time to the cane growers.  This should be given separately. While supporting this amendment Bill, I would like to submit that the ‘L’ Formula, which is supposed to help the cane growers and is not being declared so far, should be declared as early as possible.  The farmer is still at a loss.  So, I would like the Agriculture Ministry to look into this formula and declare it immediately and thereby help the farmers. श्री सीताराम सिंह (शिवहर)  :  महोदय, माननीय कृषि मंत्री जी जो चीनी विकास निधि विधेयक सदन में लाए हैं, उसका मैं हृदय से समर्थन करता हूं। सोच बहुत अच्छी है, उद्देश्य बहुत अच्छा है, इसलिए मैं इसका समर्थन कर रहा हूं। इसमें दो-तीन बातें जो किसानों और मिलों के बीच की हैं, मैं स्पष्ट रूप से उनका उल्लेख करना चाहता हूं। पहली बात यह है कि इस विकास निधि में जो व्यवस्था 1982 से है और सरकार ने इस संदर्भ में जो कदम उठाए, जब-जब भारत सरकार ने इस निधि से मिल मालिकों को पैसा निकालकर दिया, चाहे वह प्राइवेट सैक्टर का हो, पब्लिक सैक्टर का हो, कॉरपोरेट सैक्टर का हो, यह बात सुनिश्चित नहीं हो पाती कि वह पैसा किसानों को मिल जाएगा। दूसरी बात है कि यदि पैसा मिल भी जाए तो उसकी कोई समय सीमा नहीं है, भुगतान की कोई तारीख नहीं है, जब तक मन में नहीं आए, तब तक नहीं मिले और यदि साल भी लग जाए तो कोई परवाह नहीं है। मैं आपके माध्यम से मंत्री जी से आग्रह करना चाहता हूं कि आप इस विधेयक को जिस उद्देश्य से लाए हैं, तो जो पैसा किसानों के भुगतान के लिए देंगे, जो आज पूरे देश में परेशान हालत में हैं, जब आप जवाब दें और इसे पास कराएं, उन्हें कितनी समय सीमा के अंदर भुगतान कर दिया जाए, इसे सुनिश्चित करने की बात भी सदन में रखी जाए।[N35]  15.00 hrs. दूसरी बात, मैं गन्ना मूल्य के बारे में कहना चाहता हूं। भारत सरकार गन्ना मूल्य के बारे में यहां से जो निर्देश देती है, उसे देखकर राज्य सरकार मिल मालिकों के साथ बैठकर मूल्य तय करती है। यह रेट अलग-अलग राज्यों में अलग-अलग तय किये जाते हैं और पूरे देश के स्तर पर इनमें कोई मेल नहीं होता। माननीय सदस्य मोहन सिह जी अभी बोल रहे थे कि उत्तर प्रदेश में गन्ने का रेट अलग है। अब बिहार में कोई रेट ही नहीं है। राज्य सरकार के साथ गन्ना मिल मालिक बैठकर किसानों के भाग्य का निर्धारण करते हैं। इस बैठक में किसान का प्रतिनिधि कभी नहीं बैठता। मैं इस विधेयक के माध्यम से मंत्री जी से कहना चाहूंगा कि यदि आप किसानों के हित की बात सोचते हैं, तो क्या किसान के प्रतिनिधि को भी उस बैठक में बैठने की इजाजत देंगे और जो मूल्य का निर्धारण होगा, उसमें कोई एकरुपता होगी?           तीसरी बात, मैं कहना चाहता हूं कि चीनी मिल मालिक इस वर्ष जो गन्ना ले रहे हैं, उसका मूल्य वे किस परिस्थिति में पर्चे पर नहीं लिख रहे हैं। हमारे बिहार में कई मिलों में यह मूल्य नहीं लिखा जा रहा है।  चौथी बात यह है कि पिछले साल हमारे बिहार में गन्ने के खेतीहर किसानों का गन्ना जून महीने तक खराब हो गया। उनका गन्ना चीनी मिल मालिक नहीं ले पाये। वे उस गन्ने को जला नहीं पाये, सूखा नहीं पाये।  इस कारण वह गन्ना खराब हो गया। हमारी समझ में यह नहीं आता है कि यह कौन सी नीति है? मैं किसान की हैसियत से यह बात बोल रहा हूं। किसान जब खेत में गन्ना लगाता है, तो उसका एरिया जिस चीनी मिल में पड़ता है, वहां उसका गन्ना न जाये, तो उनका क्या होगा? अब चीनी मिल मालिकों को इसकी कोई परवाह नहीं होती, कोई जवाबदेही नहीं होती। यह कौन सा कानून है, कौन सा नियम है? मैं चाहूंगा कि सरकार को इस पर गंभीर होना चाहिए।           पांचवी बात यह है कि किसान को कर्जा मिलेगा चाहे  वह मिल मालिक दें या बैंक दें। उस कर्जे के एवेज में उनसे सूद वसूल होगा।  मैं पूछना चाहता हूं कि यह कौन सा कानून है कि किसान का पैसा मिल मालिकों के पास वर्षों तक रहे और किसान को उसका एक पैसा सूद भी न मिले?           छठी बात यह है कि इस विधेयक में प्रोविजन किया गया कि मिल मालिकों को सूद नहीं लगेगा और जो किसान कर्ज लेकर खेती करेगा, उसे सूद लगेगा। अब साधारण आदमी के ज्ञान में यह बात नहीं आती है। मैं साफ-सुथरा कहना चाहता  हूं कि सरकार की तरफ से यह बात स्पष्ट होनी चाहिए कि किसान के पज्ञ में ऐसी बात आये। आप जो विधेयक लाये हैं, उसमें आप किसान के बारे में ऐसी कुछ व्यवस्था करने का उपाय करें। आपने जब इस विधेयक का नाम चीनी विकास निधि लिखा है, तो बिना किसान के बिल या बिना  मिल के चीनी नहीं। इससे एक तरफ की बात होगी।  इससे चीनी मिल का विकास होगा। वैसे भी मिल चलनी चाहिए क्योंकि  मिल चलेगी नहीं, तो फिर गन्ना कैसे पैदा होगा। लेकिन दूसरा पक्ष यह है कि किसान के लिए इस विधेयक में कोई प्रोविजन होना चाहिए।           उपाध्यक्ष महोदय, मैं थोड़ा वक्त और लूंगा। हमारा घर मोतिहारी है। बिहार में सबसे अधिक चीनी मिलें हमारे जिले में थीं। वे सारी चीनी मिलें एक सुर से बंद हो गयी हैं। जब हमने इस बारे में चर्चा की, तो माननीय मंत्री जी ने हमारे यहां चीनी मिल खोलने के लिए कहा। वे वहां गये  और बहुत मेहनत की। लेकिन वे ऐसे वक्त गये जब चुनाव आचार संहिता लागू थी। इस संबंध में माननीय मंत्री जी पर गलत मुकदमा भी दायर हुआ। यह सब कुछ होने के बाद भी कोई चीनी मिल नहीं खुली। अकेले मोतिहारी चीनी मिल का 15 करोड़ से ज्यादा रुपया दस साल से बाकी है।[MSOffice36]            महोदय, मैं इस विधेयक के माध्यम से माननीय मंत्री जी काध्यान आकृष्ट करना चाहता हूँ कि इस विधेयक को पारित करवाकर और इससे भी पांच फरवरी को राष्ट्रपति जी के यहां से अध्यादेश जारी करवा  आपने जो बहुत अच्छा काम किया है, लेकिन किसानों का जो 15 करोड़ रूपए बकाया है, वह हमारे किसानों को कब मिलेगा। मेरे लोकसभा क्षेत्र की रोजा चीनी मिल में किसानों का पिछले साल का पैसा बाकी है।  उस किसान की बेटी की शादी में पैसा नहीं मिल पा रहा है। इस साल भी गन्ने की खरीद जारी है, लेकिन उसका पैसा किसानों को नहीं दिया जा रहा है। इस विधेयक को लाने का मतलब साफ है, लेकिन मैं माननीय मंत्री जी से लाखों-करोंड़ों बार यह आग्रह करूंगा कि आज इस विधेयक पर जब आप सदन में जवाब दें, तो यह भी सुनिश्चित करें कि यह  सदन आपको जो पैसा दे रहा है, यह पैसा जो आप चीनी मिलों के लिए भेज रहे हैं, किसान के लिए भेज रहे हैं, नई टेक्नोलॉजी पर खर्च करेंगे, इस पैसे का किसानों को भुगतान कितने दिन के अंदर किया जाएगा, इस सदन में यह बात साफ होनी चाहिए। यहां से जो पैसा जाता है, राज्य सरकार मिल वालों से मिलकर तिजोरी में बंद करवा देती है। मिल वाले उस पैसे को मैनेज करते हैं। अब गरीब किसान हाईकोर्ट और सुप्रीमकोर्ट में नहीं जा सकता है।  जिसके पावं न फटी बिवाई, सो का जाने पीर पराई। किसानों की हालत किसान ही जानता है। आज वहां यही स्थिति है। किसानों ने अपने खेत का सारा गन्ना मिल को दिया है, उसके पास खाने के लिए अनाज नहीं है, बेटी की शादी के लिए पैसे नहीं हैं, बेटे को पढ़ाने के लिए पैसे नहीं है। हमारे इलाके की आज यही परिस्थिति है कि वह आज तड़प-तड़पकर मर रहा है। मैं चाहूंगा कि जिस तरह एक मजबूत इरादे से आप यह विधेयक लाए हैं, उसी मजबूत इरादे के साथ सदन को यह बताएं कि किसानों  का बकाया पैसे का भुगतान, कितने महीने, कितने दिन और कितने घंटों में होगा।           इसी के साथ मैं इस विधेयक का स्वागत करता हूं। आपने मुझे बोलने के लिए अवसर दिया, इसके लिए मैं आपको धन्यवाद देता हूँ। SHRI BRAJA KISHORE TRIPATHY (PURI): Hon. Deputy-Speaker, Sir, we are now discussing the Sugar Development Fund (Amendment) Bill, 2008           The Sugar Development Fund Act, 1982 was enacted to provide for financing the activities for development of sugar industry and for matters connected therewith or incidental thereto.  Now, a proposal has come to provide loan from the Sugar Development Fund to the sugar mills and to the sugar industries. I would like to know from the hon. Minister as to how much money has been provided to the sugar industries after 1982 and also – ‘incidental thereto’ means indirectly assisting to the farmers – how much he has provided assistance to the farmers.           Sir, as per the latest Economic Survey that has been placed in Parliament, cane arrears, as a percentage of the price, have been increased to 6.2 per cent, and the outstanding dues has been estimated at Rs. 1,830 crore.  The outstanding dues of the farmers who have not got their price is Rs. 1,830 crore are now in great difficulties.  Now, the hon. Minister and the Government are very much interested to provide interest free loan to sugar industries.  But, I think, they are not concerned about the farmers.           The loans from the Sugar Development Fund (SDF) are given to eligible sugar mills for expansion of capacity, modernization/rehabilitation of plant and machinery as well as technological upgradation.  In order to make this Fund more popular and acceptable to sugar factories, the Government amended the SDF Rules in 2002 for better utilization of the important by-products by deciding to give loan from SDF for production of ethanol and bagasse based co-generation of power.[h37]            So, to produce ethanol and alcohol, which would ultimately help in generating power, the loans from the SDF was provided, and the Act was amended by this Parliament in the year 2002.           Sir, I would like to know from the hon. Minister as to how much power has been generated by way of providing loans to this industry; and how much ethanol and alcohol have been produced by them, which would ultimately help in refining the petrol and diesel. I would also like to know whether the Government has made any estimate of all  these  thing to see that this SDF has been better utilised for the purpose it has been provided for.           Sir, the Centre has increased the Excide Duty on sugar by Rs. 9 a quintal  in this Budget.  The additional duty would make the total excise levied on sugar as Rs. 95 a quintal.  Together,  with cess there  would be a burden  of  Rs. 97.85 a quintal.  But ultimately who is going   to bear this burden?  It is the consumers.  It will not be borne by the sugar factories. It is the consumers, who would be taking the burden of Rs. 97.85 per quintal, by taking sugar.   Now, this loan would be provided to the sugar industries.           The dues pending on farmers in the form of loans is about R.2,000 crore, which is not being paid to the farmers. They are also suffering greatly. They are also in a very distressing condition.           At the moment, as per the figures of 30th September, 2006, there are about  582 sugar factories in the country, of which, 317 are in the cooperative sector; 203 are in the private sector; and 62 are in the pubic sector.  So, most of the sugar mills are  in the cooperative sector.  But the loans mostly that have been provided, are to the sugar factories in the private sector, so far.  Of course, some sugar mills in cooperative sectors have also been provided, but most of the loans have been given to the private sectors. In one way, we are helping  the sugar industry. Yes, it is also necessary, otherwise, this industry would not survive, the farmers would not be able to take the advantage of utilising their sugarcane.  I  do not say that it is not necessary.  But if you see the answer to a Question put in the  Parliament,  it is replied that the loan from the SDF has been provided to a limited number of  States only.  Other States have not been provided  with this loan from the SDF  or for that matter, any other assistance.  As far as Orissa is concerned, there is no such figure, which says that the loan has not been provided to Orissa, it is said in the answer. I do not say that Uttar Pradesh or Maharashtra should not be provided with such a loan. Of course, they are producing more sugarcane.  My point is that there are other States like Punjab etc., which should also be given more. Similarly, other States also should be given such a loan from the SDF, so that their sugar industries and farmers are also benefited out of it.           Sir, the Central Government fixes the Statutory Minimum Price (SMP)  for sugarcane. Then, we have the State Advisory Boards, which are also doing price fixation.  But  if we look at the condition of the sugarcane farmers,  it is very much pitiable and deplorable.           The present battle between the sugarcane farmers and the mill owners centres on price.  The Government is providing so much of assistance to the sugar mill owners, with the sole intention that it would ultimately help  the sugarcane farmers. [r38]            But so far as price is concerned, they are not providing the real price to the sugarcane farmers as per the Statutory Minimum Price that is fixed by the Government of India or at the State level, the State Advised Price Fixation Body which are fixing the price. That is why, of course, the sugarcane farmers are ultimately going to the Supreme Court, the apex court. A number of Hon’ble Members have also discussed this thing. But that price is also not being provided by the mill owners to the farmers.           While the farmers claim that they are not able to recover the cost of cultivation, the mill owners say that cane crushing is not viable after buying the crop. So, this is the situation. While farmers are telling that whatever they are investing, leaving apart their labour, they are not getting the price. They are investing in this crop but they are not getting the price so far as their investment is concerned.           As per the latest Economic Survey, I have already said that outstanding is pending to the tune of about Rs.1,830 crore. There is one thing because this is happening. The network for the cane cooperative societies, which was working mainly for the farmers’ interest, has now completely collapsed. The Government has not shown any interest. The State Governments are also equally not taking so much interest. This network could have ultimately helped the sugarcane farmers’ interest. Since that cooperative society body has completely collapsed, they are not coming forward to purchase sugarcane from the farmers directly. So, naturally, the farmers are selling to the middlemen. In U.P. alone, their farmers' organisation has told that they are in a position to sell only at the rate of Rs.50 per quintal. Where? It is to the middlemen because the mill owners are not purchasing directly from the sugarcane farmers. So, they are compelled to sell it to the middlemen in a very distress sale and at a very low price. It is because the network of cane cooperative societies has completely collapsed, and hence they are selling to the middlemen. That is the situation now.           So, I would like to know whether the Government will declare any package for the farmers also. They are not interested in this. Through this Sugar Development Fund, now we are providing all assistance to the sugar mill owners and their factories. But so far as the farmers’ distressed condition is concerned, we have discussed that. We, all the Members cutting across Party, are discussing the pitiable condition of these farmers. They are not getting their price. Whatever price that is fixed, they are not getting that price. They are also not getting their arrear dues for years together. All these things are now compelling the farmers to shift to other crops. Some of the farmers’ organisations have declared that in future they will shift their cultivation from sugarcane to either wheat or rice or any other crop. So, the situation will be like this. When the farmers of Brazil and other countries are completely competing with the farmers of our country quite well and they are selling at a very low price in the international market, our sugarcane farmers will not be in a position to face the farmers of other countries because whatever subsidies and incentives that the other countries; are providing to the sugarcane farmers of their countries are not being provided to our farmers.           That is why I want to know what type of package the Government is interested to declare for the farmers. I also want to know whether the other States, which are not availing the fund from the Sugar Development Fund, like Orissa, should also be provided from this Fund to develop their sugar mills and industries. SHRI SURESH PRABHAKAR PRABHU (RAJAPUR): Sir, I have given a notice for disapproval of the Ordinance that was issued. Though I broadly support the contents of the Bill, I really fail to understand why there was a need for issuing an Ordinance on 4th of February. I just heard the statement of the Minister that it was issued because to protect the interests of the farmers who were agitating, who were demanding their dues for the cane supplied to the sugar factories and there was a law and order problem. The factories would have failed to start the crushing season, and therefore they had to do it.[m39]            If I recall, the last Session of the Parliament ended in the last week of December, almost close to that. Therefore, the Bill of this type could have been introduced in the last Session of the Parliament rather than issuing an Ordinance. Sir, I always feel that Ordinance should be used as a rarest of the rare occasion because Ordinance takes away the right of the Parliament to decide on an important issue like this, and if the Ordinance is issued, it is like a fait accompli for the Parliament to really convert it into a law. Therefore, I really oppose the promulgation of the Ordinance, and therefore, I had given the notice.           Sir, there is already a huge agrarian crisis engulfing our rural India. We have been worried about the fact that agricultural production is stopping. We are also worried that yields are falling and the farmers are not getting remunerative prices. As a result of which, the production is not increasing at the rate at which we wanted. It is also threatening our food security and creating a lot of other economic issues. As we discussed the other day, the share of agriculture in GDP has fallen to 18.5 per cent now. So, we need many ways to tide over this. One of the ways we thought of doing is to do agro-processing. We thought that agricultural production need not be just sold in the market in the primary form but it should be processed and therefore, the farmers will be able to get a value for not just the produce that he is selling but also for the finished product which will be sold in the market as an agro-processed good.           It is also true that in India almost more than 30 per cent of our agricultural production is lost because of not being processed adequately. Therefore, sugar is one of the very important agro-processed products, and that is what we really started doing it many years ago and in a way we are successful in that. But we always have faced the problem in sugar industry. Therefore, sugar industry needs a different type of treatment.  It is true that sugar passes through a cyclical form. Every three years or four years, the production increases so much that the prices fall. Since the prices fall, therefore, the farmers do not plant sugarcane in the next following season. Then, over a period of time, again the production falls. The prices go up, and then again we have to provide such incentives. So, I think this is the time that we really need to think about re-vitalising sugar industry, not just in the form of this--which I will come to it later--but also in the form of making sugar, that is, cycleability through which the sugar industry always gets affected. How do we get over that, is something the Government must see, and for that, probably, we need to look at the possibility of making the cropping pattern change, give proper notice to the farmers that you do not plant so much, so we will not have a problem. We also really need to look at that. For some time we are thinking that probably, we can import to tide over the problem. But that is not the solution because we need our own agricultural production. So, the Government must think about a long-term sustainable nature of making sugar so that the sugar industry will not pass through these phases like many other industries which pass through such cyclical form.           Sir, this particular Bill seeks to amend Section 4 of the Sugar Development Fund Act. It was passed in 1981. In 1982, we had amended this Act to bring buffer stock as one of the qualifying items to receive the funds from this. In 2002, it was amended for exporting the sugarcane and for that to provide internal transport and supports like that. Then, we also amended it for co-generation and for alcohol and ethanol. But this is the first time we are amending this Act for the purpose of paying money for the sugar factories to run their operations. This is actually the law, the Act which was passed primarily for strengthening the sugar factories to do research and development, to increase the profitability, to bring in some sort of a capital expenditure, though as I mentioned, earlier we also mentioned the revenue expenditure. But to pay for actual working capital of the sugar factories by paying from the Sugar Fund is something which I think really defies the very purpose for this Act. Therefore, we should really try to find out how we can use this Sugar Fund to make sure that the sugar factories are strengthened on a long-term basis rather than paying for the revenue expenditure which will not be in the long-term interests of this country.           Sir, I was talking about making sure that sugar industry itself is re-vitalised. We had an Economic Survey which was presented to the Parliament on 20th of February in which we have seen that the Finance Minister talking about decontrol of the sugar industry.[m40]            In that Economic Survey, we have seen that the hon. Minister of Finance was talking about decontrol of the sugar industry. This is something which I would like to know from the hon. Minister who probably is one of the few persons in the country who knows the sugar industry on the palm of his hand. I do not think there are many other people who know this. I would like to know from the hon. Minister as to what is the long-term plan. Are we thinking about decontrolling the sugar industry which is what is mentioned in the Economic Survey? If it is so, then, is this the solution of providing a sugar fund? Is this a solution to that problem? We really need to know about it.           The other issue is to increase the amount of money from Rs. 15 to Rs. 25 to augment the sugar fund. It is absolutely required that we need support for the sugar industry. There is no doubt about it. There are no questions about it. But, who should fund that support? I want to know whether it should be from the consumers or whether it should be from the Government. I think that the Government has to provide for it and should not really talk of the charges on the consumers to make that happen. Therefore, I really think that the Government should now really focus on how to diversify the portfolio of the sugar industry.           Sir, Brazil is one of the largest producers of sugar in the world. Brazil popularised one of the great bio-fuels called ethanol on a long-term basis which is now blended worldwide into the fuel that we use for transportation. I think ethanol is something which has now become one of the principal sources of revenue for the sugar industry in Brazil. You really need to do something like this in India to make sure that the sugar industry in India stands on a long-term footing, on a basis that will not suffer such type of cyclibility. That is what is really required to be done.           I know Cuba used to be, once upon a time, the largest producer of sugar in the world. What happened after a few years of the so-called new regime that was there? Now there is a change of regime in Cuba as well. Fidel Castro’s brother has taken over. He is already talking about reforms. Suppose, for example, Cuba starts investing more into the sugar industry, then start bringing more sugar into the market, what will happen in the world market? We really need to look at that also and probably we need to be careful about drawing our strategies about the sugar industry in future.           Sir, sugar industry in India and predominantly in Maharashtra is controlled by cooperatives. That is a very welcome thing because cooperatives ensure that the farmer gets a share in the produced crop that goes into the sugar mill. Therefore, he is not only getting the price for sugarcane but he is also getting part of the profit that the sugar mills make in terms of selling the sugar. But, cooperatives, generally in India, are suffering a great deal these days. We need to revitalise these cooperatives. We need to bring the spirit of cooperative which drove this movement a great deal many years ago. Therefore, we need to find out how the cooperatives themselves can be revitalised. If that does not happen, then probably the structure through which the sugar industry operates will not also get the cooperation. Therefore, this is something which we will need to do.             Sir, I, therefore, support the Bill. I feel that some sort of support is required for the sugar industry. But I sincerely hope and wish that the hon. Minister, as I said earlier is one of the most qualified persons to look into the issues, will be able to apply his mind to make sure that the sugar industry is properly revitalised. श्री धर्मेन्द्र प्रधान (देवगढ़) :   उपाध्यक्ष महोदय, मैं सैद्धातिक रूप से शूगर डैवलपमेंट फंड अमेंडमेंट बिल का समर्थन करता हूं। जब मैं इसकी जानकारी आगे-पीछे कर रहा था और माननीय सदस्यों के भाषण सुन रहा था तो मुझे बहुत सी दूसरी बातों की जानकारी मिली। My State is a negligible player in the sugar economics. अभी हम अपने क्षेत्र में इसे थोड़ा-थोड़ा शुरू कर रहे हैं। इसकी पिछले 15-20 साल से उड़ीसा में शुरुआत हुई है जिससे हमें कुछ अनुभव हो रहा है। अभी मेरे साथ उड़ीसा के सांसद तथागत जी से बैठे थे। उनके वहां इसकी एक इंडस्ट्री है लेकिन गन्ने की खेती मेरे इलाके में होती है। मैं अपने आजू-बाजू के इलाकों के कुछ अनुभव बताना चाहता हूं। अगर माननीय मंत्री जी खेती करने वाले मजदूरों का ध्यान रखते हुए यह बिल बनाते तो अच्छा होता। इसके द्वारा चीनी मिलों को सब्जिडाइज्ड रेट पर या इंटरेस्ट फ्री रेट पर लोन देने का प्रॉविजन किया गया है। वह इसे ऑर्डिनेन्स के रूप में लाए हैं और आज हम इसे पास करने जा रहे हैं। वहां तमिलनाडु की शक्ति नाम की एक शुगर फैक्ट्री लगायी गई है ।[a41]  इसमें हमारा 55-56 साल का क्या अनुभव है। अभी हम शुगर साइकिल के बारे में समझ रहे थे कि खेती एक साल अच्छा होती है और दूसरे साल चीनी का रेट घटता है उसके बाद फिर खेती और बढ़ जाती है लेकिन इससे किसान को नुकसान होता है।  आप चीनी मिल को एजेंसी बनाते हो, मुआवजा, दाम अच्छे देने के लिए और क्रॉप शक्ति अच्छी रखने के लिए लोन देते हो, यह स्वागत योग्य पक्ष है। लेकिन कानून में उसे मिलता है या नहीं, फार्मर तक पहुंचता है या नहीं, इस बारे में सैंट्रल और स्टेट गवर्नमेंट, दोनों के पास बड़ा मैकेनिज्म नहीं है। इसमें लिमिटेशन आ जाती हैं, राज्य सरकार हाथ खड़ा कर देती है, केंद्र सरकार के पास बात पहुंचती नहीं है। हमारे प्रदेश की फैक्ट्री अगर शुगरकेन लाने के लिए रोड रिपेयर करती है तो उसका भी पैसा किसानों के ऊपर लादा जाता है। इसके अलावा जो कैनाल मैंटेनेंस होता है, उसका भी पैसा लादा जाता है। अगर गारन्टियर फैक्ट्री बनकर इन्डीविजुअल लोन लेता है तो भी लोन का पूरा अमाउंट किसानों को नहीं मिलता है। अगर आप इतनी बड़ी बात यहां से कर रहे हो कि चीनी मिलों को सस्ती दर पर या बिना ब्याज के लोन देंगे तो मेरी इतनी विनती है कि इसके लिए कोई प्रोवीजन होना चाहिए। हम देख रहे हैं कि उड़ीसा जैसे प्रांत में कालाहांडी, वलांगीर, कटक और ढेंकानाल जिले में भी कुछ हुआ है जिससे वे लड़खड़ा जाते हैं। आप किसानों के हित को थोड़ा ध्यान में रखें ताकि आप उसके लिए जो यहां से देते हो वह किसानों तक पहुंचे। इस संबंध में अगर बिल में कुछ प्रोवीजन हो जाए, एडमिनिस्ट्रेटिव या एक्जीक्यूटिव डॉयरेक्शन्स दी जाएं, मैं मानता हूं यह किसानों के हित में होगा, गरीब लोगों के हित में होगा।           मैं आपके माध्यम से पुनः मंत्री द्वारा लाए गए बिल का समर्थन करता हूं। आपने मुझे बोलने का मौका दिया इसके लिए मैं आपका धन्यवाद करता हूं। उपाध्यक्ष महोदय : मेरी सब मैम्बर्स से विनती है कि सभी मैम्बर्स का फर्स्ट राउंड खत्म हो गया, अब सैकिण्ड राउंड शुरू होना है इसलिए मैं चाहता हूं कि मैम्बर्स दो या चार मिनट में अपनी बात कह दें। कृषि मंत्री तथा उपभोक्ता मामले, खाद्य और सार्वजनिक वितरण मंत्री (श्री शरद पवार): इसके लिए दो घंटे दिए गए थे, दो घंटे हो गए हैं। उपाध्यक्ष महोदय: जी, हां लेकिन पांच-सात मैम्बर रहते हैं। DR. M. JAGANNATH (NAGAR KURNOOL) : Thank you Mr. Deputy-Speaker, Sir. I rise to support the Bill with a few reservations. The Bill is intended for the overall development of the sugar industry and matters concerned therewith and increasing the cess from Rs. 15 per quintal to Rs. 25 per quintal. It looks like that though the Bill has taken care of the cases of factories and other institutions, yet it has not exactly taken care of the farmers. I think the Bill does not have anything to say about the farmers.           As usual, like any other agricultural produce, the sugarcane producers have been neglected throughout the country as well as in my State of Andhra Pradesh, particularly in the areas of Telengana – Medak, Nizamabad, Adilabad and Karimnagar districts where they grow sugarcane. It is because as no reasonable MSP is given either by the Central Government or the State Government to the sugarcane growers, they are distressed as usual like any other farmer and they are forced to commit suicide.           Apart from this, a strange thing is happening. In any agricultural produce, if anybody purchases it from the farmer, the price will be paid then and there itself to help the farmer. But a strange thing is happening with respect to the sugarcane growing farmers. The fact is any institution who purchases the sugarcane from the farmers, they do not make the payment on-the-spot. But they will ask the farmers to wait till such time that the crushing season is over. Depending upon the rate they get, they will be paying to the farmers. At times, it is happening that the investment that the farmer is making on the sugarcane growing, he is unable to get that much also and he is forced to commit suicide. This is happening. [k42]            It is alleged that nearly Rs. 65,000 crore are due to the farmers only in Andhra Pradesh. If that is the case, you can assess how much it could be throughout the country. This is a very wrong thing. In case of paddy, it is being paid. I would request the Government of India, and hon. Minister is also here, not to wait till such time the crushing season is over and to make payment, depending on the rate prevailing at that time. The farmer should be paid there itself at the prevailing rates.           Recently, Swaminathan Commission has submitted its report suggesting that Rs. 1,800 should be given to the farmers. There has been a long delay. If such type of things are accepted, based on that, the farmers should get payment there itself.  Recently, the hon. Finance Minister has announced waiver of loans for farmers. This should also apply to sugarcane farmers. The MSP should be announced to the tune of Rs. 1,800. Only then the problem of sugarcane growers will be solved. उपाध्यक्ष महोदय : कुंवर मानवेन्द्र सिंह जी, अब आप बोलिये, लेकिन आप केवल तीन-चार मिनट में अपनी बात खत्म करें। कुँवर मानवेन्द्र सिंह (मथुरा)  : उपाध्यक्ष महोदय, मेरे बोलने से पहले ही आप तीन मिनट कह देते हैं। उपाध्यक्ष महोदय : मेरी भी मजबूरी है, सभी पार्टियों का टाइम खत्म हो गया है, दो घंटे का अलॉटेड टाइम भी खत्म हो गया है। अब आप ही बतायें, मैं क्या करूं। अपनी पार्टी से कह दें, मैं दूसरे किसी .. …( व्यवधान) कुँवर मानवेन्द्र सिंह  : सर, आप दो मिनट टाइम बढ़ा दीजिएगा। उपाध्यक्ष महोदय : आप स्टार्ट करें, फिर देख लेंगे। कुँवर मानवेन्द्र सिंह   : अगर आपकी आज्ञा हो तो क्या मैं यहां से बोल सकता हूं? उपाध्यक्ष महोदय : आप यहां से बोल सकते हैं। श्री सुरेन्द्र प्रकाश गोयल (हापुड़): सर, आज आपका जन्म दिन है ...( व्यवधान) उपाध्यक्ष महोदय : गोयल साहब, जैसा आप कहो, वैसा कर लेंगे। कुँवर मानवेन्द्र सिंह   : सर, जन्मदिन की आपको बधाई हो, मुझे अभी पता लगा। उपाध्यक्ष महोदय : वह 15 तारीख को था, उस दिन छुट्टी थी, वह बीत गया। बहुत-बहुत धन्यवाद। कुँवर मानवेन्द्र सिंह  :  माननीय उपाध्यक्ष जी, मैं आपके माध्यम से माननीय कृषि मंत्री जी को अपनी और समस्त गन्ना किसानों की ओर से हृदय से बधाई देना चाहता हूं। मंत्री जी नये बिल को अमैन्डमैन्ट करके शुगर डैवलपमैन्ट फंड के द्वारा जो चीनी विकास निधि अधिनियम, 1982 और चीनी उपकर अधिनियम, 1982 आप लाये हैं, उसके लिए मैं आप सबको हृदय से बधाई देता हूं। सर्वप्रथम अगर हम गन्ना किसानों की तरफ देखें तो बहुत वर्षों से उनके सामने एक समस्या चली आ रही है कि जो गन्ना किसान बड़ी मेहनत से गन्ना उगाता है, उसका भुगतान नहीं होता और न केवल फसल पर ही भुगतान होने की बात है, बल्कि दो-दो, तीन-तीन साल तक उसका भुगतान नहीं होता है, जिसके कारण निरन्तर उसकी आर्थिक स्थिति खराब होती जाती है और अपने बच्चों की परवरिश, घर का खर्चा, बच्चियों की शादी करने तक के लिए वह मोहताज हो जाता है। माननीय मंत्री जी इस बिल के द्वारा किसानों की आर्थिक स्थिति को सुधारने का भी प्रयास करेंगे, ऐसी मैं उम्मीद करता हूं। इसमें कई चीजें हैं। पहले यदि हम गन्ने के बारे में देखें तो जो पर्चियों का वितरण होता है, वे किसानों तक नहीं पहुंचती, उनका वितरण बिचौलियों के द्वारा होता है और बाद में किसान जिन पर्चियों को लेना चाहता है, वह उन्हें ब्लैक से खरीदता है। इसके बाद जब वह पर्ची लेकर फसल काटकर तुलाई के लिए जाता है तो वहां भी ठीक से गन्ने की तुलाई नहीं होती और वहां वह जितना गन्ना ले जाता है, उसकी सही तुलाई नहीं होती। कई बार हम लोग भी मौके पर गये हैं और उन अधिकारियों को डांटा, फटकारा है, उनके खिलाई कार्रवाई भी कराई गई है, मगर कोई विशेष सुधार नहीं आया। इसके अलावा आपने देखा कि किसानों ने अपनी मांग उठाते हुए कहा कि उनका भुगतान समय पर हो, इस मुद्दे को लेकर कई प्रदर्शन हुए और उन प्रदर्शनों के दौरान किसानों पर गोलियां भी चलाई गई हैं[b43] । बहुत से किसान वहां मारे गये हैं। बहुत से किसानों ने खेती की समस्याओं से जूझते हुए वहां पर आत्महत्याएं की हैं जो आप सभी को मालूम हैं और यह सदन भी भली प्रकार से जानता है। इसके अलावा केवल किसानों ने ही नहीं, बल्कि परिवार के परिवारों ने आत्महत्या करके अपने जीवन का अंत किया है जो इस सदन और देश के लिए बहुत दुख की बात है क्योंकि इस देश में करीब 80 फीसदी किसान जो हमारा अन्नदाता भी कहलाता है। इसलिए इस पर विशेष ध्यान देना चाहिए। मैं इस ओर माननीय मंत्री जी का ध्यान इसी से जुड़ी हुई समस्याओं की तरफ भी आकर्षित करना चाहूंगा कि सिंचाई के साधन बहुत ही सीमित हैं। बिजली 18-18 घंटे नहीं आती है, किसान को पानी भी पूरा उपलब्ध नहीं होता, पम्प चलाकर पानी देना पड़ता है और कभी-कभी डीजल की कमी होती है, डीजल भी समय पर नहीं मिलता और इस तरह से उसकी खेती सूख जाती है। जितनी पैदावार होनी चाहिए, जितना गन्ने में रस होना चाहिए, उतनी क्षमता नहीं रहती। इसके अलावा सिंचाई के भी साधन, नहरों की सफाई न होने के कारण खेतों तक पानी पहुंचने का सवाल नहीं है। बीस-बीस सालों से पानी वहां नहीं पहुंचता। जो किसान गन्ना उगाते हैं, जो नहरों के पास भी हैं, उनको भी सिंचाई पूरी नहीं मिलती जिससे किसानों का समय-समय पर बहुत उत्पीड़न होता रहता है। इसलिए मैं आपसे अनुरोध करूंगा कि इस ओर भी ध्यान देते हुए किसानों को सुविधाएं उपलब्ध करानी चाहिए। यहां तक किसान और फैक्टरी ओनर्स के झगड़े में चाहे वे कोआपरेटिव फैक्टरियां हों या प्राइवेट फैक्टरियां हों, उनके झगड़े में माननीय सुप्रीम कोर्ट को भी इंटरफिअर करना पड़ा है। मैं यह 28 फरवरी,  2008 के इंडियन एक्सप्रैस की सुप्रीम कोर्ट की रूलिंग को कोट करना चाहूंगा जो इस अखबार में दी गई है:  “…The hon. Supreme Court on Wednesday directed mill owners in Uttar Pradesh to pay cane growers their dues by fixing the price between Rs. 115 and Rs. 123 depending upon the quality for the season 2006-2007…”             वर्ष 2006-07 के सीजन की बात कही गई है और सुप्रीम कोर्ट ने भी इसमें इंटरफिअर किया है। उसके बाद हमारे उत्तर प्रदेश में हाइ-कोर्ट ने भी कहा है:  “HC scraps UP Government’s price order.” उन्होंने लिखा है: “…the State Advised Price (SAP) of sugarcane for the 2006-2007 season of October-September. The court also recommended the constitution of a committee headed by a retired judge to calculate sugarcane prices afresh…”   बार-बार हमारे सुप्रीम कोर्ट और हाइ-कोर्ट भी इसमें इंटरफिअर करती रही हैं मगर दुख की बात है कि उनके आदेश करने के बावजूद भी किसानों को न्याय नहीं मिलता। फिर आगे हाइ-कोर्ट ने कहा है कि:  “…In the 2006-2007 season, while cane prices were raised about 8 per cent, sugar prices fell 30 per cent due to a bumper harvest. As a result, all sugar mills in the State reported a loss for the first two quarters of the current financial year…”             इस तरह कभी शुगर फैक्टरियां बंद हो रही हैं, कभी किसानों को गन्ने का प्राइस नहीं मिल रहा है, इस तरह की समस्याओं को भी देखना चाहिए।           जहां तक लॉसेज का सवाल है, लॉसेज के बारे में हमारे वित्त मंत्री जी ने कहा है, Implement sugar package.  यह हमारे वित्त मंत्री जी ने 13 फरवरी, 2008 को कहा है। In the Business Standard of 13 February 2008, Shri Chidambaram told banks to implement sugar package. It states :  “The Finance Minister Shri P. Chidambaram today asked public sector banks to implement the interest-free loan package announced for sugar mills…”   “Punjab National Bank, Indian Overseas Bank and the Indian Bank have implemented the package. Others have been advised to complete the exercise soon. In December, Government notified a package allowing sugar mills to avail of interest-free loans.”   उन्होंने इंटरैस्ट फ्री लोन की बात कही तो मैं माननीय मंत्री जी से आग्रह करूंगा कि जब आप शूगर इंडस्ट्री को इंटरैस्ट फ्री लोन देते हैं तो फिर किसानों को क्यों नहीं? जब उन्हें बराबर सरकार की तरफ से, बैंकों की तरफ से, फाइनैंस मिनिस्टी की तरफ से ऋण मिला है। हमारे कृषि राज्य मंत्री डा. अखिलेश प्रसाद सिंह ने कहा है : “Government disappointed with the response for Sugar Development Fund.”             यह उन्होंने अपना स्टेटमेंट दिया है। आगे कहा है : “The poor response from the sugar industry to the Sugar Development Fund for the modernization or expansion of plants has disappointed the Union Government.”                     अगर दोबारा आप इस ओर बढ़ रहे हैं तो मैं आपके माध्यम से कहना चाहूंगा कि किसानों की जो स्थिति है, उस पर आप गौर फरमायें।           मुझे याद है कि जब हमारे यहां चीनी मिलें हुआ करती थी और जो गांव इसके अंदर आते थे, जहां जहां गन्ना खरीद करते थे, वहां सड़क निर्माण किया करते थे, उन्हें शैल्टर बनाकर देते थे, जहां किसानों का गन्ना तुलने के लिये जाता था। लेकिन आज, यदि ठंड या बरसात का मौसम रहता है तो वह भीगता रहता है और शूगर फैक्टरी पर एक किलोमीटर से ज्यादा की लाइन में खड़ा रहता है । न उसके लिये प्रापर शौचालय है, न शैल्टर है और न रोटी बनाने के लिये जगह है। वह खुले आसमान के नीचे बरसात में कई दिन तक पड़ा रहता है।  मंत्री जी शूगर इंडस्टीं की समस्या जानते हैं लेकिन मेरा आग्रह है कि किसानों के लिये भी इस अध्यादेश के जरिये जल्द भुगतान किये जाने की व्यवस्था की जाये। उनकी आर्थिक स्थिति दयनीय है, इसलिये उन्हें भी बैंक से फ्री लोन दिये जाने की व्यवस्था की जाये ताकि वे भी अपना जीवन शान्ति से बिता सकें। MR. DEPUTY-SPEAKER: Shri Shailendra Kumar, please be very brief and conclude your speech within three to four minutes. श्री शैलेन्द्र कुमार (चायल)  : उपाध्यक्ष महोदय, आपने मुझे चीनी विकास निधि (संशोधन) विधेयक, 2008 पर बोलने का अवसर दिया, उसके लिए मैं आपका धन्यवाद करता हूं।           जैसा कि माननीय मंत्री जी 1982 के विधेयक में कुछ संशोधन लेकर आये हैं, जिस पर पक्ष और विपक्ष की तरफ से विस्तार में विचार आये हैं। श्री मोहन सिंह जी, जो सांविधिक संकल्प लेकर आये हैं, मैं उनके विचारों को बल देते हुये कहना चाहूंगा कि यह बात सत्य है कि इस सदन में माननीय मंत्री जी ने खुद कहा था कि चीनी के उत्पादन में सब से ज्यादा योगदान उत्तर प्रदेश का रहा है और मंत्री जी ने स्वीकारा भी है। .योगी आदित्यनाथ ने पूर्वांचल के गन्ना किसानों के दुख-दर्द को विस्तार से रखा है। पश्चिमी इलाके के गन्ना किसानों की भी बड़ी समस्यायें हैं। हालांकि मुझे कम समय दिया है, फिर भी इनके बारे में विस्तार में बताना चाहूंगा। उत्तर प्रदेश के गन्ना किसान उत्पादन में अग्रणी थे, वे पीछे न हों, उन्हें विशेष पैकेज देकर उनका जो बकाया रह गया है, उसका भुगतान तत्काल हो। इसकी कोई न कोई सुनिश्चित व्यवस्था होनी चाहिये। मैं अभी जब इस संशोधन विधेयक को पढ़ रहा था, उसमें सरकार ने चीनी मिलो की ओर ज्यादा ध्यान दिया है कि आप उन्हें ऋण देंगे लेकिन उन किसानों का कोई जिक्र नहीं किया गया जोकि एक शोचनीय विषय है। अभी जो सम्मानित सदस्यों के सुझाव आए हैं, वे ज्यादातर किसानों की समस्याओं को लेकर ही आए हैं। इसलिए मैं कहना चाहूँगा और जैसा माननीय सदस्यों ने कहा कि बात सत्य है कि किसान अगर गन्ने की बुवाई करता है और बाद में फसल को काटकर मिलों तक ले जाता है, तो मानवेन्द्र सिंह जी ने उस दुखड़े को बड़े विस्तार से बताया, मैं उसमें नहीं जाना चाहूँगा। यह बात सत्य है कि जगह-जगह पर कांटे भी लगते हैं और कांटों में भी इतनी धांधली होती है कि जो कांटों का ठेका लेता है, वह भी घटतौली करता है। उससे सबसे बड़ी चोट किसानों को पहुँचती है। वहाँ पर जो घटतौली होती है तो किसान उससे वहीं पर दब जाता है, उसको अपने उत्पाद का सही मूल्य नहीं मिल पाता। किसी तरह से वह अपने उत्पाद को मिल में ले जाता है, वहाँ पर पर्ची दे दी, समय पर उसका भुगतान नहीं हुआ तो अगली फसल के लिए वह एक प्रकार से मर जाता है। उसका उत्पादन ही रुक जाता है। वह कुछ नहीं कर पाता। जैसा सम्मानित सदस्यों ने कहा कि लड़कियों की शादी करने में और अपने घर-परिवार को चलाने में उसको इतनी मुश्किल हो जाती है कि उसको कर्ज़ लेना पड़ता है। यही कारण है कि किसान आत्महत्या करने के लिए विवश हो जाते हैं।           जैसा मंत्री जी ने कहा और संशोधन के माध्यम से बात आई है कि बहुत सी चीनी मिलें जो बंद हैं, सरकारी हैं, गैर-सरकारी हैं या कोआपरेटिव सैक्टर की हैं, अगर बंद हैं तो उन्हें चालू किया जाए। उन्हें आप प्रोत्साहन दीजिए, गन्ना मालिकों को आप प्रोत्साहन दीजिए लेकिन उसके साथ साथ आपको यह भी देखना पड़ेगा कि हमारे जो किसान गन्ने का उत्पादन कर रहे हैं, उनको हम कितनी सहूलियत दे रहे हैं? मानवेन्द्र सिंह जी ने यही कहा कि हम उनको न बिजली दे पा रहे हैं, न पानी दे पा रहे हैं, फिर हम गन्ने का भी उत्पादन इतना करना चाहते हैं कि हमारी चीनी का उत्पादन इतना हो जाए कि हमारे देश में भी खपत हो और बाहर भी इसका निर्यात हो। इन सब बातों को देखते हुए हमें सोचना पड़ेगा। हमें यह भी देखना पड़ेगा कि कहाँ हमारा बैलेन्स बिगड़ रहा है। कभी कभी गन्ने का उत्पादन इतना ज्यादा हो जाता है कि पश्चिमी उत्तर प्रदेश में तो खेत में खड़े हुए गन्ने को किसान जला देता है। माननीय अशोक प्रधान जी बैठे हैं, वे इस बात को जानते हैं। इससे बहुत बड़ी हानि उनको होती है। इसलिए यह सोचने का विषय है। मंत्री जी हँस रहे हैं।  मैं चाहूँगा कि मंत्री जी न हँसें। मंत्री जी का महाराष्ट्र तो चीनी उत्पादन में आगे है, लेकिन इसको गंभीरता से लें और इस पर सोचें। आपने इस विधेयक में किसानों का कहीं ज़िक्र नहीं किया, यह मेरी आपत्ति है। मैं चाहूँगा कि अपने उत्तर में आप कम से कम किसानों को प्रोत्साहित करने के लिए, किसानों को सहूलियत देने के लिए, उनके बकाये के भुगतान के लिए उनको किस प्रकार से सहूलियत मिलेगी, इस पर ज़रूर जवाब दें। इन्हीं बातों के साथ मैं अपनी बात समाप्त करता हूँ। श्रीमती रूपाताई डी. पाटील (लातूर)  : माननीय उपाध्यक्ष जी, चीनी विकास निधि संशोधन विधेयक पर  आपने मुझे बोलने की अनुमति प्रदान की, इसके लिए मैं आपको धन्यवाद देती हूँ।           महोदय, यह जो बिल आदरणीय मंत्री जी लाए हैं, इसके संबंध में मैं कुछ बोलना चाहती हँ। ये चीनी मिल मालिकों को जो सहूलियत देना चाहते हैं, उसके साथ ही मेरे क्षेत्र में जो 800 से 900 क्रैशर्स गुड़ निकाल रहे हैं, उनको भी कुछ राहत देने के लिए कुछ सोचना चाहिए। इसके साथ साथ जो इथनॉल और बिजली का उत्पादन करते हैं, उनके उत्पादन को बढ़ावा देने के लिए भी इसमें कोई बात नहीं कही गई है। इसलिए इनका प्रावधान भी इसमें होना चाहिए।  मेरे क्षेत्र में इतनी आत्महत्याएँ हो रही हैं कि आज के समाचारों में आया है कि आठ दिन पहले आपने जो कर्ज़ माफी की, उसके बाद भी चार-पाँच लोगों ने हमारे क्षेत्र में आत्महत्याएं कीं। इसकी एक ही वजह है कि आप चीनी मिल मालिकों को बचाना चाहते हैं। उसके साथ साथ किसानों को भी बचाना चाहिए, यह मैं कृषि मंत्री जी से विनती करती हूँ। जो चीनी मिल मालिक होते हैं, वे किसानों का गन्ना लेकर जाते हैं। अभी एक माननीय सदस्य बता रहे थे कि वहां इतनी समस्याएँ किसानों को रहती हैं - बिजली नहीं, पानी नहीं, फिर भी वे गन्ना लगाते हैं। उनको लगता है कि चीनी मिल मालिक हमारा गन्ना लेकर जाएँ और हमारे पास कुछ पैसा आना चाहिए। [h44]            इतनी समस्या होने के वाबजूद भी वे गन्ना लगाते हैं और जब गन्ना लेने की बारी आती है तो चीनी मालिक बोलते हैं कि अभी टाइम नहीं हुआ है। टाइम हो जाता है तब भी उनका गन्ना नहीं लेते हैं। इस तरह जो ये राजनीति करते हैं, यह बंद होनी चाहिए। गन्ने का भाव निर्धारित करना चाहिए कि इसका इतना भाव है। गन्ने का भाव निर्धारित किया हुआ है तब भी हमारे यहां के जो मालिक हैं वे उन्हें उतना नहीं देते हैं। जो रिकवरी आती है, उसके हिसाब से वे उन्हें पैसा नहीं देते। वे मनमानी करते हैं, उन्हें ठीक से पैसा नहीं देते।           उपाध्यक्ष महोदय, मैं आपके माध्यम से आदरणीय कृषि मंत्री जी से कहना चाहती हूं कि आपने जैसे चीनी मालिकों के बारे में सोचा है, उसी तरह हमारे यहां जो गुड़ बनाते हैं, कम से कम उनके लिए बिजली मुफ्त होनी चाहिए। उसका उन्हें जो मुआवजा दे सकते हैं, वह भी उन्हें देना चाहिए। हमारे क्षेत्र में एक तहसील में नौ सौ गुड़ के कारखाने चलते हैं, इन कारखानों में चीनी मालिक जितना क्रशिंग करता है, उतना ही गुड़ निकालने वाला किसान भी करता है। इसलिए इनके बारे में भी थोड़ा सोचना चाहिए, इससे इन्हें भी राहत मिलेगी और किसान आत्महत्या कम करेंगे। जो गुड़ बनाते हैं, उनके लिए कुछ पैकेज वगैरह देना चाहिए।            इन्हीं शब्दों के साथ मैं अपनी बात समाप्त करती हूं।           MR. DEPUTY-SPEAKER: Shri Jasubhai Barad is our last speaker.  Please be very brief.  Complete your speech within four minutes.  श्री जसुभाई धानाभाई बारड़ (जूनागढ़) : उपाध्यक्ष महोदय, आपने मुझे बोलने का अवसर दिया, इसके लिए आपको बहुत-बहुत धन्यवाद। आज श्री शरद पवार जी जो बिल लेकर आए हैं, पूरा गन्ना बोने वाले जो किसान हैं, उनके लिए वे लगातार कुछ न कुछ हल निकालने की कोशिश कर रहे हैं। सबसे अहम् सवाल यह है कि आज जो चीनी मिलों की आर्थिक स्थिति है, उसके कारण क्या हैं। ऐसा नहीं है कि पूरे हिन्दुस्तान में हर जगह पर जो लागत आती है, वह सभी जगह पर एक ही तरीके से आती है। इसके लिए अलग-अलग जोन बनाए हुए हैं। किसी जगह पर लो रिकवरी जोन है और किसी जगह पर हाई रिकवरी जोन है। किसी जगह पर एक एकड़ पर पैदावार 40 प्रति टन है तथा किसी जगह पर सूखा पड़ता है। आज अगर 1250 मीट्रिक टन केपिसिटी की कोई चीनी मिल 65 परसैंट नहीं चलती है तो एक भी पैसे का मुनाफा नहीं होता।           उपाध्यक्ष महोदय, मैं दो-तीन बातें मंत्री जी के ध्यान में लाना चाहता हूं कि ऐसी स्थिति में 1998 से लेकर इंटरनेशनल मार्केट में दाम कम हुए। यहां उत्पादन की पैदावर ज्यादा हुई और उसके बाद लगातार चीनी के भाव कम होने की वजह से जो लागत आती थी, इससे करीब-करीब तीन सौ-चार सौ रुपए प्रति क्विंटल जो चीनी का भाव मिलना चाहिए, वह कम हुआ। इस वजह से चीनी मिलों की जो आर्थिक स्थिति थी, वे जो प्लेज और क्लीन के लोन लेते हैं, इन सब लोन का भुगतान करने में एक बड़ी समस्या आ गई। गन्ने का न्यूनतम भाव सेंट्रल गवर्नमेंट तय करती है, वह चुकाना ही पड़ता है। जहां तक कोआपरेटिव मिल का सवाल है, यह मिल अपने हिसाब से तीन पार्ट में पेमेंट करती है। पहले दो सौ- तीन सौ रुपए का पेमेंट करती है, फिर बाद में सौ-डेढ़ सौ रुपए का करती है। मिल बंद हो जाने के बाद आखिरी पेमेंट वह उनको देती है। राज्य सरकार में जो कोआपरेटिव बैंक है, उनके लिए मैं कहूंगा कि प्लेज किस हिसाब से मिलता है, करीब-करीब 13.5 परसैंट के हिसाब से प्लेज मिलता है। बैंक वाले 14 से 15 परसैंट लेते हैं। जहां तक रीस्ट्रक्चर का सवाल है, इसमें मैं आपको गुजरात की, खास कर सौराष्ट्र की बात बताता हूं। सौराष्ट्र का एरिया सूखा है। वहां पहले छ: मिलें थीं और आज सिर्फ दो मिलें चल रही हैं, चार मिलें वहां इसी वजह से बंद हो गईं। केन्द्र सरकार कोई नीति बनाती है, कोई खास पैकेज डील करती है। [rep45]  16.00 hrs. उपाध्यक्ष महोदय, केन्द्र सरकार ने यह किया है। माननीय मंत्री, श्री शरद पवार जी ने चीनी मिलों के लोन को दो वर्ष पहले रीस्ट्रक्चर किया। उसके कारण आज स्थिति यह हो गई है कि गुजरात सरकार इसमें गारंटी नहीं दे रही है। जब गुजरात सरकार गारंटी नहीं देगी, तो ब्याज की दर में 3 प्रतिशत तक राहत जो बैंक को मिलने वाली है, वह नहीं मिल पा रही है। लिक्विडिटी सपोर्ट लोन, गुजरात में पांच कोआपरेटिव मिलों को मिल सकता था, लेकिन गुजरात सरकार ने सिर्फ चार को दिया। सौराष्ट्र में जहां सूखा पड़ा है, वहां वह नहीं दे रही है। इस प्रकार की कुछ बातें हैं, जो होनी चाहिए। जिस मिल ने पिछले दो साल में जितनी भी एक्साइज पे की है, उसके हिसाब से, उसे बिना ब्याज के लोन देने की बात है। 7 परसेंट कौन रखेगा, एस.डी.एफ. के माध्यम से 5 परसेंट भारत सरकार देगी। एस.डी.एफ. में जो कन्वर्जन की बातें हो रही है, उनका सामना आज भी गुजरात के सौराष्ट्र क्षेत्र की मिलें कर रही हैं। स्टेट कोआपरेटिव बैंक से बात करते हैं, तो वे कहते हैं कि नाबार्ड ने कोई नीति बनाई है कि जब तक गुजरात की गवर्नमेंट इसमें गारंटी नहीं देगी, तब तक हम परसेंटेज के हिसाब से ब्याज का भुगतान नहीं कर सकते हैं, जिसके कारण लिक्विडिटी सपोर्ट नहीं मिल सकेगा। इसलिए जहां तक आम किसानों का सवाल है, जिनके लिए शरद पवार जी लगातार कोशिश कर रहे हैं, उनसे मैं उम्मीद करता हूं कि वे किसानों की समस्याओं को सुलझाने में यदि जरूरत पड़े, तो राज्यों की सरकार से भी बात कर के इन समस्याओं को निपटाने में मदद करें। अन्त में, मैं उनका और उनके द्वारा प्रस्तुत बिल का समर्थन करता हूं तथा आपको समय देने के लिए धन्यवाद देते हुए, अपनी बात समाप्त करता हूं।                              श्री संतोष गंगवार (बरेली): उपाध्यक्ष महोदय, समय देने के लिए मैं आपका आभारी हूं। मैं सिर्फ दो ही मिनट लूंगा।           महोदय, मैं माननीय मंत्री जी से निवेदन करना चाहूंगा कि अभी हाल ही में बजट प्रस्तुत किया गया है, जिसमें सरकार ने 60 हजार करोड़ रुपए के किसानों के कर्ज माफ करने यानी उन्हें छूट देने की घोषणा की है। आप इस बिल के माध्यम से चीनी मिलों को लाभ पहुंचा रहे हैं। अब चीनी मिलें गन्ना किसान को पैसा देंगी या नहीं, यह कैसे सुनिश्चित होगा? इसलिए मेरा आग्रह है कि यह पैसा चीनी मिल को न देकर आप सीधे गन्ना किसानों को दें। चीनी मिलों को बैंक द्वारा जो भुगतान होता है, उसमें एक-एक और दो-दो महीने का डिले होता है, उससे चीनी मिलों को ब्याज का बहुत ज्यादा फायदा मिलता है। नंबर दो बात यह है कि उत्तर प्रदेश में इस बार, पालिसी फायनल न होने की वजह से, गन्ने के किसानों ने, शुरू के दो-तीन महीनों में खेत जल्दी खाली करने की गर्ज से, ताकि वे उसमें गेहूं बो सकें, 30 से 50 रुपए प्रति क्विंटल में अपना गन्ना बेच दिया। हमारी नीति दुरुस्त न होने के कारण, हमारी चीनी मिलें दिसम्बर में चलनी शुरू हुईं। मेरा आपसे आग्रह है कि आप ऐसा सुनिश्चित करें कि एक तो जून में केन्द्र और राज्य सरकार द्वारा किसान को कितना पैसा दिया जाएगा वह बताएं और एक डेट निर्धारित करें कि इस क्षेत्र की इस तारीख तक और इस क्षेत्र की इस तारीख तक चीनी मिलें शुरू होंगी। यह भी सुनिश्चित करें कि गन्ने के मूल्य का भुगतान यदि एक सप्ताह या 15 दिन के अंदर नहीं देंगे, तो उस चीनी मिल वाले को ब्याज देना पड़ेगा। अगर आप यह सुनिश्चित करेंगे, तो चीनी मिल वालों के ऊपर कुछ दबाव पड़ेगा और वह किसानों का भुगतान करेंगे। जो आप उन्हें दे रहे हैं, उसे तो आप ब्याज-रहित कर रहे हैं। इसलिए मेरा आग्रह है कि आप इस दिशा में विचार कर के जब आप इसके ऊपर हुई बहस का उत्तर दें, तब इस विषय में भी कुछ बताएं और कुछ निर्देश जारी करें, तभी इसका क्रियान्वयन हो पाएगा। आपने मुझे बोलने का मौका दिया, आपका पुनः बहुत-बहुत धन्यवाद। श्री अशोक प्रधान (खुर्जा)  : उपाध्यक्ष महोदय, मैं माननीय सदस्य, श्री संतोष गंगवार जी से अपने को सम्बद्ध करता हूं। श्री सुरेन्द्र प्रकाश गोयल : उपाध्यक्ष महोदय, मैं भी अपने को श्री संतोष गंगवार जी से एसोसिएट करता हूं। उपाध्यक्ष महोदय : दोनों माननीय सदस्यों को एसोसिएट कर दिया जाए। कृषि मंत्री तथा उपभोक्ता मामले, खाद्य और सार्वजनिक वितरण मंत्री (श्री शरद पवार)  : उपाध्यक्ष महोदय, सदन के जिन सदस्यों ने इस ऑर्डिनेंस के रूपान्तर कानून के बारे में यहां जो वक्तव्य दिए हैं, मुझे खुशी है कि सभी लोगों ने इसका समर्थन किया है। इसके साथ-साथ कुछ समस्याएं जो चीनी मिलों और किसानों की हैं, उन्हें आज सदन और सरकार के सामने रखने की कोशिश की है।           महोदय, इस देश में टैक्सटाइल के बाद सबसे ज्यादा रोजगार देने वाली अगर कोई इंडस्ट्री है, तो वह शुगर इंडस्ट्री है। यह एग्रो बेस्ड इंडस्ट्री, पूरे हिन्दुस्तान के गांवों में रहने वाले गरीबों को रोजगार देती है और इसका सबसे ज्यादा लाभ, देश का जो ग्रामीण हिस्सा है, वहां के लोगों को होता है।[r46]  हमारा देश दुनिया में शुगर के उत्पादन में दूसरे स्थान पर है। 6-7 साल पहले हमारा देश दुनिया में शुगर के उत्पादन में प्रथम स्थान पर था, लेकिन आज ब्राजील दुनिया में सबसे ज्यादा शुगर का उत्पादन करता है। ब्राजील की स्थिति और यहां की स्थिति में जमीन-आसमान का अंतर है। एक तो ब्राजील में जमीन ज्यादा है और आबादी कम है, जबकि हमारे देश में 80-81 प्रतिशत किसान दो हेक्टेयर के नीचे वाले हैं। मुझे नहीं लगता है कि ब्राजील में इस तरह के किसान होंगे। ब्राजील के और हमारे गन्ना उत्पादन में फर्क है। वहां का 70 फीसदी से ज्यादा गन्ना उत्पादन बारिश पर निर्भर है, लेकिन यहां के किसानों को गन्ने का उत्पादन करने के लिए पानी का प्रबन्ध करना होता है। वहां की लागत मूल्य भारत से बहुत कम है। वहां की चीनी मिलें किसानों को जो गन्ने का मूल्य देती हैं, वह भारतीय रूपये में आप तुलना करें तो चार सौ रूपये प्रति टन के आस-पास है, यानी 40 रूपये मन के आस-पास है। 30-40 रूपये प्रति मन जब गन्ने की कीमत थी तब उत्तर प्रदेश में मुझे जहां तक याद आता है, गेन्डा सिंह नाम के एक प्रभावी नेता हुआ करते थे। उन्होंने इसके लिए बहुत संघर्ष किया था। लेकिन आज 30-40 रूपये प्रति मन किसानों को स्वीकार करना नामुमकिन है। ब्राजील में चीनी मिलों की क्रशिंग कैपेसिटी 30 या 35 हजार टन के आसपास है, जबकि हिन्दुस्तान में एवरेज दो हजार टन के आसपास है। वहां 30-35 हजार टन क्रशिंग कैपेसिटी वाली चीनी मिल में ज्यादा से ज्यादा दो सौ लोग काम करते हैं, जबकि हमारे यहां 1200 से 1500 टन की क्रशिंग कैपेसिटी वाली मिल में आठ सौ या नौ सौ लोग काम करते हैं। इसलिए उनके साथ कम्पीट करना इस देश के गन्ना किसानों और चीनी उत्पादन करने वाली मिलों के लिए मर्यादित नहीं है, फिर भी इस देश के किसानों ने दुनिया में दो नम्बर पर चीनी उत्पादन करने का एक रिकार्ड कायम किया है। हमारे देश की आवश्कयता को पूरा करने के लिए वे जो कुछ कर सकते हैं, वह करने पर उन्होंने ध्यान दिया है। शुरू में मोहन सिंह जी ने जो कहा, वह सच है कि चीनी उद्योग ऐसा है, जहां पांच साल का साइकिल होता है। वह डिमान्ड और सप्लाई पर निर्भर करता है और हमारे किसानों की आदत पर भी निर्भर करता है। शुरू के दो साल किसानों को अच्छी कीमत मिलती है। अच्छी कीमत मिलने से अच्छी पैदावार होती है। तीसरे साल कीमत कम होने का प्रोसेस शुरू होता है और चौथे और पांचवें साल इतनी कीमत कम हो जाती है कि किसान दूसरी फसल पर शिफ्ट होता है। इससे गन्ने का उत्पादन कम होता है, जिससे चीनी कम होती है, इसके बाद चीनी के दाम बढ़ते हैं, फिर गन्ने के दाम बढ़ते हैं और किसान फिर से खेत में गन्ना पैदा करता है। इस तरह का ट्रेन्ड हम कई सालों से इस देश में देख रहे हैं[r47] । इस पर कोई बंधन लगाने की भी स्थिति नहीं है, क्योंकि किसानों को हम यह नहीं कह सकते कि आपको कौन सी फसल लेनी है। अमेरिका जैसे देशों में फसल कौन सी लेनी है, इसका निर्णय कई बार सरकार करती है कि व्हीट का टोटल प्रोडक्शन हमें इतना ही करना है, इतना ही क्षेत्र व्हीट के अन्दर लगना चाहिए, हर किसान को इतना ही व्हीट लगाना चाहिए। इस तरह का कोई कानून, कुछ कदम, कोई आदेश वहां की सरकार कर सकती है, पर अपने जैसे देश में यह नहीं हो सकता, क्योंकि एक तो हमारे किसानों की ताकत बहुत कम है, क्षेत्र बहुत कम है, उनका परिवार इस पर चलाना मुश्किल है, जिसके बारे में इस सदन में भी कई बार चर्चा हुई है।           पिछले दो सालों में क्या हुआ, 2004-2005, 2005-2006 में इस देश में गन्ना पैदा करने वाले किसानों को जो कीमत मिली, वह शायद पिछले 50-60 सालों में कभी नहीं मिली थी और इसलिए जो हमेशा होता है, वह हो गया कि क्षेत्र बढ़ गया। पिछले साल से समस्या यह हो गई कि गन्ने का क्या करना है, किस तरह से इसको क्रशिंग करना है। कई राज्यों में, जहां अप्रैल मई तक चीनी मिल का सीजन चलता है, वहां की सरकार ने कदम उठाकर, दबाव डालकर चीनी मिल के मैनेजमेंट को कहा कि चाहे मई महीना हो, जून महीना हो या जुलाई महीने हो, आपको चीनी मिल चलानी चाहिए, भले ही इसके कारण बहुत बड़ा रिकवरी लॉस सहन करने की परिस्थिति आ जाये। लेकिन अगर यह नहीं करते तो वह गन्ना ऐसे ही क्षेत्र में रहता और दूसरी फसल लेने की ताकत बिल्कुल किसान की नहीं होती। इससे बड़ा भारी नुकसान अल्टीमेटली देश का होता। यह स्थिति होने के बाद आज मुझे दिखा रहा है कि शायद अगले साल इस देश में गन्ने का उत्पादन कम हो जायेगा। इस साल ही प्लांटेशन कम हुआ है, जो प्रक्रिया शुरू हुई है, अगले दो साल में चीनी की कीमत ऊपर जायेगी, गन्ने की कीमत बढ़ेगी, किसानों को दो पैसे मिलेंगे और फिर ज्यादा क्षेत्र में शायद किसान लगा सकते हैं।           कुछ न कुछ रास्ता इस बारे में हमें निकालना होगा। वह रास्ता कैसे हम निकाल सकते हैं, क्योंकि अपना ही देश एक ऐसा देश है कि यहां गन्ना तैयार करने के बाद इससे हम चीनी ही बनाते हैं। आज दुनिया में सभी जगह पर चीनी उद्योग खाली चीनी नहीं बनाता है, वे इससे बिजली बनाते हैं, जैनरेट करते हैं, वे एथेनोल बनाते हैं, प्रिट बनाते हैं, एक्स्ट्रा न्यूट्रीशनल एल्कोहल बनाते हैं और कई जगह पर कागज भी बनाते हैं। इन सभी को मिलाकर जो कीमत आती है, इसका लाभ किसानों को भी मिल सकता है और इसका लाभ चीनी उद्योग को भी मिल सकता है, इसलिए भारत को छोड़कर दुनिया के बाकी देशों में स्थिति में बदलाव आ रहा है।           इसलिए 1982 में जब यह कानून बन गया, तब देश के सामने यह बात थी कि इतना बड़ा रोजगार देने वाले उद्योग को चलना चाहिए, वह माडर्न होना चाहिए, इसमें अच्छी तरह से किसानों को कल्टीवेशन करने की परिस्थिति पैदा करनी चाहिए, उनको गन्ने का ठीक तरह से सीड मिलना चाहिए। यह सब करने के लिए रुपये की लागत लगती है, उसकी उपलब्धि ठीक करने की आवश्यकता थी, इसलिए शुगरकेन डैवलपमेंट फंड का निर्माण हो गया। जो फंड उससे कलैक्ट किया गया, वह कंज्यूमर से कलैक्ट किया गया। आज भी 15 रुपये से 25 रुपये करने का यहां जो प्रस्ताव है, इसका असर चीनी की कीमत, जो चीनी खरीदने वाले आम आदमी है या परिवार है, उन पर पड़ेगा और उनको नौ या दस पैसे प्रति किलो ज्यादा देना पड़ेगा। प्रभु साहब ने यहां पर कहा कि आप यह बोझ इनके ऊपर क्यों डालते हैं। अगर हम यह उत्पादन नहीं बढ़ाएंगे, चीनी का उत्पादन कम होगा तो अल्टीमेटली उपभोक्ताओं को इसकी जबरदस्त कीमत देनी पड़ती है। दो साल पहले हमने देखा कि चीनी की कीमत 20 रुपये से ऊपर चली गई थी।[R48]  उसकी कीमत उपभोक्ता को देनी पड़ी।  चीनी का एक स्टेबल प्रोडक्शन हो जाएगा, तो उनकी भी लूट नहीं होगी और ठीक कीमत पर चीनी उनके पास उपलब्ध होगी। इसलिए लांग टर्म कंज्यूमर का इंट्रेस्ट सेव करने के लिए, जो उत्पादन की आवश्यकता है, उसे मद्देनजर रखते हुए, हमें इसकी थोड़ी-बहुत जिम्मेदारी कंज्यूमर्स के ऊपर भी देने की आवश्यकता थी।  सन् 1983 से, जब ये कदम उठाए, उसमें आज तक फर्क नहीं आया है। यह पूरी जिम्मेदारी कंज्यूमर्स पर रहती है।            यह फंड किसलिए तैयार किया?  नंबर एक, इसमें राशि चीनी मिलों के पास उपलब्ध होनी चाहिए, क्योंकि उनके कार्य क्षेत्र में जहां गन्ना पैदा होता है या अच्छी तरह से गन्ना तैयार होने के लिए पानी का प्रबंध वे कर सकें, उसके लिए, बोरिंग करने के लिए, लिफ्ट इरीगेशन नदियों से करने के लिए, पाइपलाइन और बाकी जो पानी लाने के लिए सुविधा देनी है, उसके लिए भी इस्तेमाल कर सकते हैं।  साथ ही साथ सीड फार्म और सीडलिंग देने का भी बंदोबस्त भी कर सकते हैं।  इन सब कामों के लिए इसका प्रबंध इसमें किया गया। आज तक जो भी पैसे चीनी मिलों को दिए, इनमें से 530 करोड़ रूपए केन डेवलपमेंट के लिए दिए।  इसमें से सबसे ज्यादा हिस्सा को-आपरेटिव मिल्स के पास गया। को-आपरेटिव मिलों के मालिक खुद किसान हैं, 10-15-20 हजार किसान इकट्ठा होकर अपनी मिल शुरू करते हैं और इसका पूरा लाभ उनके पास जाता है।  इस तरह से ये पैसे केन डेवलपमेंट के लिए दिए गए।            दूसरी, यहां से रकम चीनी मिल माडर्नाइजेशन और एक्सपेंशन करने के लिए जाती है।  इस क्षेत्र में आज दुनिया में कंपटीशन हो रहा है।  इस कंपटीशन में हमारा सामना ब्राजील जैसे देश के साथ हो, तो हम अपनी मैन्युफैक्चिरंग कास्ट कैसे कम कर सकते हैं और चीनी मिल माडर्न किस तरह से कर सकते हैं, इसमें आटोमेटाइजेशन किस तरह से बढ़ सकता है, साथ ही साथ एलाइड इंडस्ट्रीज इसमें कैसे डेवलप कर सकती है, इस पर ध्यान देना पड़ेगा।  इसके लिए जो कैपिटल इन्वेस्टमेंट करने की परिस्थिति आती है, तब कहीं न कहीं से तो साधन तैयार करने की आवश्यकता होती है।  इस तरह से शुगर डेवलपमेंट फंड से उसे मदद भी हो जाती है।           तीसरे, जैसे मैंने शुरू में कहा कि एक एलाइड इंडस्ट्री, केवल चीनी बनाकर, हम इंटरनेशनल मार्केट में सामना नहीं कर सकेंगे और साथ-साथ इससे दूसरा भी जो पदार्थ बन सकता है, वह पैदा हम नहीं करें, तो इससे पूरे देश का नुकसान होता है।  आज इससे, को-जेनरेशन से, बिजली तैयार करने का काम हो सकता है और साथ ही साथ हम इथेनॉल और स्पिरिट भी बना सकते हैं। अभी तक को-जेनरेशन तैयार करने के लिए, पावर तैयार करने के लिए, बिजली तैयार करने के लिए 350 करोड़ रूपए शुगर डेवलपमेंट फंड से अलग-अलग चीनी मिलों को दिए गए हैं। इथेनॉल के प्रोजेक्ट के बारे में डिसीजन हुआ और 32 करोड़ रूपए इथेनॉल के प्लान्ट्स लगाने के लिए आज तक दिए।  इस बारे में कई एप्लीकेशंस हमारे पास पेंडिंग हैं। इससे एक नया रास्ता खुल रहा है। जो देश में स्टडी हुयी, इससे तीन हजार मेगावॉट से भी ज्यादा बिजली चीनी उद्योग से इस देश में तैयार हो सकती है।  उस रास्ते पर अब हम लोग जा रहे हैं, इसलिए इसमें हम इन्वेस्टमेंट कर रहे हैं।  जो शुगर डेवलपमेंट फंड है, इससे केन प्लांटेशन के मामले में हम मदद कर सकते हैं, प्लांट माडर्नाइजेशन के लिए मदद कर सकते हैं, डायवर्सिफिकेशन के लिए मदद कर सकते हैं। हर पांच साल के साइकल में जो दो या तीन साल का खराब समय आता है, उस समय चीनी उद्योग को बचाना किसानों के लिए आवश्यक बात होती है।  [p49]       उन्हें उस समय कुछ न कुछ राहत देनी पड़ती है। पिछले दो साल जो बहुत खराब गए, उसमें कई चीनी मिलें न किसानों की कीमत दे सकीं, न मजदूरों की तनख्वाह दे सकीं। कई मिलें डिवीडैंट नहीं दे सकीं, ऐसी परिस्थिति आई। परिस्थिति इतनी खराब हुई कि देश के बैंक भी उनकी मदद करने के लिए तैयार नहीं थे। क्यों? क्योंकि उनकी पैदावार काफी बड़े पैमाने पर हुई। उनका माल पड़ा रहा, इंटरनेशनल मार्किट  में उसकी कोई डिमांड नहीं थी। हम इंटरनेशनल मार्किट में ब्राजील, थाइलैंड, आस्ट्रेलिया, साउथ अफ्रीका जैसे देशों के साथ कम्पीट नहीं कर सकते। लेकिन इस उद्योग को बचाना, अल्टीमेटली किसानों को भी बचाना, रोजी बचानी हो, रोजगार बचाना हो, ऐसी परिस्थिति में सरकार को कुछ न कुछ मदद करनी पड़ती है। सरकार ने सिर्फ चीनी उद्योग की मदद की है, ऐसा नहीं है। टैक्सटाइल इंडस्ट्री की डैवलपमैंट के लिए हजारों करोड़ रुपये का एक प्रोजैक्ट तैयार करके भारत सरकार ने उस इंडस्ट्री को राहत दी। देश में कुछ गिनी-चुनी स्टील मिलें हैं। जब वे स्टील मिलें बहुत संकट में थीं, तब भारत सरकार ने बैंकों को सलाह देकर उनके लिए एक अलग प्रस्ताव तैयार किया और स्टील मिलें बचाने की कोशिश की। यह सबसे ज्यादा रूरल इम्प्लॉयमैंट देने वाली इंडस्ट्री है, जिसका खेती से डायरैक्ट संबंध है। ऐसी इंडस्ट्री को बचाने के लिए कुछ न कुछ मदद करने की आवश्यकता है। इसलिए जिस साल हमारा प्रोडक्शन बहुत ज्यादा हो, तब इस इंडस्ट्री को बचाने के लिए भारत सरकार ने इससे पहले कुछ कदम उठाए। हमारे पास उत्पादन ज्यादा हो गया तो चीनी मिलों से लेकर सरकार ने पचास लाख टन का बफर स्टॉक किया। जो चीनी स्टॉक में रखी, उसके ऊपर जो इन्टरेस्ट एंड स्टोरिंग चार्जेस होते हैं, उसकी जिम्मेदारी सरकार ने ले ली। साथ ही जो इंटरनेशनल मार्किट में उतरना चाहते हैं, अपनी चीनी वहां भेजना चाहते हैं, जो राज्य समुद्र किनारे, पोर्ट से दूर हैं, उन्हें 1450 रुपये प्रति टन ट्रंसपोर्ट सहायता देने का काम सरकार ने किया। महाराष्ट्र, गुजरात, कर्नाटक, तमिलनाडु, आंध्र प्रदेश आदि राज्य जो सागर के पास हैं, उन्हें सौ रुपये कम दिए गए क्योंकि उनकी ट्रंसपोर्ट कॉस्ट कम लगती है। इसलिए उन राज्यों को 1350 दिए गए। ऐसे कुछ कदम उठाए गए। लेकिन इसके साथ ही फाइनैंशियल इंस्टीट्यूशन्स को भी डायरैक्शन दी गई कि आप उनके रीहैबीलिटेशन का प्रोग्राम करें। नाबार्ड, जो खेती और कृषि उद्योगों को मदद करने वाला बैंक है, उन्हें भी सूचना दी गई कि आप कोआपरेटिव मिलों की मदद कीजिए। उन्होंने भी रीहैबीलिटेशन का पैकेज तैयार किया। यह सब कुछ करने के बाद भी आज देश में 190 लाख टन चीनी की आवश्यकता है और देश में 280-290 लाख टन से भी ज्यादा चीनी उपलब्ध है। यदि ऐसी स्थिति रही तो आज नहीं तो कल, चीनी उद्योग बहुत संकट में आ जाएगा। जब चीनी मिलें बंद हो जाएंगी, तब किसानों के गन्ने को प्रोसैस करने का दूसरा कोई रास्ता नहीं रहेगा। गुड़ बन सकता है लेकिन गुड़ से देश की समस्या खत्म नहीं होगी। यदि हम किसी भी एग्रीकल्चरल प्रोडय़ूस को प्रोसैस नहीं करेंगे तो किसानों को ठीक तरह से कीमत नहीं दे सकेंगे, देश को भी दो पैसे मिलने का कोई रास्ता नहीं मिलेगा और न ही इससे रूरल इम्प्लॉयमैंट बढ़ सकती है। इसलिए किसी भी एग्रीकल्चरल प्रोडय़ूस के प्रोसैस के लिए जो भी किया जा सकता है, वे सब कदम उठाने की आवश्यकता है। चीनी उद्योग इस क्षेत्र का उद्योग है, इसलिए सरकार ने उसकी तरफ देखने का अलग नजरिया रखा है।           अभी जो नुकसान हो रहा है, उससे क्या होगा? हमारे कुछ माननीय सदस्यों ने जो बताया, यह बात सच है कि इस साल उत्तर प्रदेश का चीनी उद्योग कई जगहों पर अपनी चीनी मिल शुरू करने की स्थिति में नहीं था, न ही शुरू करना चाहता था।[N50]  अगर गन्ना हारवेस्टिंग नहीं होता, तो देश की फूड मिनिस्ट्री का मंत्री के नाते, मेरे सामने सबसे बड़ी समस्या यह थी कि यदि गन्ना नहीं कटेगा, तो वह जमीन क्षेत्र गेहूं के लिए ऐवेलेबल नहीं होगा। इससे गेहूं पर असर पड़ेगा और फिर उसे इम्पोर्ट करने की नौबत आयेगी। आज उत्तर प्रदेश खासतौर से वेस्टर्न यूपी इस देश में पंजाब, हरियाणा के बाद या उनके साथ-साथ गेहूं पैदा करने वाला बड़ा हिस्सा है। इसलिए वहां के गन्ने की क्रशिंग होने की आवश्यकता थी। जब वे मिल ही नहीं चलायेंगे, तो यह कैसे होगा। कई जगह किसानों ने अपने गन्ने को आग लगायी है, इस तरह की न्यूज भी अखबारों में आयी है। इसका भी बुरा असर होता है और यह नेशनल लॉस है। ये सब करने और चीनी मिलों की हालत कैसे दुरस्त कर सकते हैं, इस पर हमें  ध्यान देना पड़ा। इसके साथ-साथ बड़े पैमाने पर चार हजार करोड़ रुपये से ज्यादा की राशि जिसे किसानों को देने की आवश्यकता थी, उसे चीनी मिल दे नहीं पायी। वे रकम उन  पर बकाया थी। इसलिए कुछ रास्ता निकालने के लिए हमने राज्य सरकार के साथ बातचीत की, तो एक सुझाव सामने आया कि इन चीनी मिलों को बैंकों से लोन देने का बंदोबस्त किया जाये । मगर बैंक्स इन इंडस्ट्रीज को बिल्कुल सहायता देने के लिए तैयार नहीं थे, क्योंकि इनके नेटवर्क की जो आर्थिक ताकत थी, वह बिल्कुल नीचे चली गयी थी जिससे बैंक्स रिस्क लेने के लिए तैयार नहीं थे। इसलिए कुछ जिम्मेदारी भारत सरकार को उठानी चाहिए, कुछ जिम्मेदारी राज्य सरकार को उठानी चाहिए और कुछ बैंकों को रिस्क लेना चाहिए, इस तरह का सुझाव आया। कई राज्यों ने इस पर परचेज टैक्स भी माफ कर दिया तथा कई और सहूलियतें भी दे दीं। भारत सरकार ने शुगर डेवलपमैंट फंड से यह पैसा रेज करना तय किया। अब बैंक्स से जो चीनी मिलें पैसा लेंगी, वे उसका सूद देने के लिए भी तैयार रहें।  मैं सदन के सभी सदस्यों से एक बात बिल्कुल साफ करना चाहता हूं कि बैंक्स से जो पैसा चीनी मिलों को जायेगा, उन पर यह बंधन होगा कि वह पैसा सिर्फ किसानों  को गन्ने की कीमत देने के लिए ही इस्तेमाल कर सकते हैं, दूसरी  किसी चीज के लिए इस्तेमाल नहीं कर सकते। हमारे पास एक सुझाव यह भी आया था कि किसानों की बकाया रकम देने के बाद यदि कुछ रकम बचती है, तो जो मजदूर वहां काम करने वाले हैं, उनकी तनख्वाह भी रही होगी, इसलिए इस बारे में भी सोचना चाहिए। साथ-साथ अगर फिर भी कुछ पैसे बच गये, तो बैंकों के ऋण देने के लिए भी इसे खर्च कर सकते हैं। मगर इस पर हमने अभी कुछ निर्णय नहीं लिया है। अभी विखे साहब ने जो सूचना दी, उस पर सरकार जरूर  ध्यान देगी। मगर हमारी पहली प्रॉयरिटी किसानों को उनकी गन्ने की कीमत देने के लिए रहेगी। आज यही स्थिति है। कई सदस्यों ने यहां यह सवाल उठाया कि ये पैसे वहां जायेंगे, उस पर भरोसा क्या है? इसमें जो रूल्स बन रहे हैं, उसमें पैसे दो इंस्टालमैंट में वहां जायेंगे। सबवैंशन का पहला इंस्टालमैंट जाने के बाद, दूसरा इंस्टालमैंट देने से पहले, सभी चीनी मिलों को यह सर्टीफिकेट देना होगा कि ये पैसे उन्होंने किसानों को ही दिये हैं। उसे देने के बाद ही उसका दूसरा हिस्सा रिलीज हो जायेगा। साथ-साथ आज भारत सरकार का जो शुगर केन कंट्रोल आर्डर है, इसके एक सैक्शन में सुविधा है जिसके माध्यम से किसी चीनी मिल ने किसानों को 14 दिन में पैमेंट नहीं किया, तो उनको 14 परसेंट इंटरैस्ट देना पड़ता है। यदि यह इंटरैस्ट और पैमेंट देने के लिए उन्होंने कोई कदम नहीं उठाया, तो भारत सरकार ने राज्य सरकारों को, राज्य सरकारों ने जिलाधिकारियों को पावर्स दी हैं कि आवश्यकता हो, तो वे चीनी मिलों की सम्पत्ति, मशीनरी और वहां की चीनी भी जब्त कर सकते हैं।  [MSOffice51]  आज ये पूरे अधिकार राज्य सरकारों को दिए गए हैं। मुझे बताया गया है कि खास तौर पर उत्तर प्रदेश सरकार की तरफ से कुछ कदम उठाए गए हैं। उन्होंने कुछ मिल मालिकों के लिए अरेस्ट वारन्ट्स भी जारी किए हैं और जब लोग कोर्ट्स में जाने लगे तो उन्हें स्टे आर्डर दिए गए हैं।  लेकिन इससे यह फायदा हुआ है कि बकाया 4000 करोड़ रूपए से ज्यादा रकम में से लगभग 3000 करोड़ रूपए वापस किए गए हैं, फिर भी अभी 1,000 करोड़ रूपए रकम बाकी है।  उनकी ओर हमारा ध्यान है और हमेशा रहेगा। हमने उनको कहा कि जल्दी से जल्दी पैसे रिकवर करके देने के लिए प्रबंध कीजिए, अगर पैसे नहीं दिए जाते हैं तो सख्ती से कदम उठाने के लिए आपको जो अधिकार दिए गए हैं, उनका इस्तेमाल करें और किसानों के पैसों का भुगतान कराएं। अगर यह नहीं होगा तो हम यह जो नई फेसिलिटी दे रहे हैं, उनको इसका लाभ नहीं मिलेगा।  इस बारे में हमें जो प्रिकाशन्स लेने हैं, हम लेंगे।           चीनी उद्योग के बारे में बहुत कुछ बताया गया है। खासकर उत्तर प्रदेश, तमिलनाडु, उत्तराखंड आदि कुछ राज्यों  की परिस्थितियां देश के अन्य राज्यों से भिन्न है। पूरे देश में  गन्ने की कीमत केन्द्र सरकार द्वारा तय की जाती है जिसे एसएमपी कहा जाता है। इसे भारत सरकार द्वारा तय किए जाने के बाद अन्य राज्यों द्वारा इस पर अमल किया जाता है। देश के तीन-चार राज्य ऐसे हैं, जिन्होंने इस दिशा में अपने अलग कानून बनाए हैं जिनमें उत्तर प्रदेश भी है। वहां भारत सरकार द्वारा तय की गई कीमत के आधार पर राज्य सरकार अपनी ओर से कीमत तय करती है। इससे एक बात अवश्य है कि दो पैसे किसानों को ज्यादा मिलते हैं, लेकिन पूरे देश के लिए जो नीति तय होती है, उसमें दो-तीन राज्यों की नीति अलग हो जाती है। इससे थोड़ी दिक्कत आती है और एक तरह से नुकसान होता है। लेकिन इस बारे में मैंने इन राज्यों के प्रमुखों की एक बार मीटिंग बुलाई थी, हालांकि उसमें आम सहमति नहीं हो सकी। लेकिन आज सुप्रीम कोर्ट ने राज्य सरकार के अधिकार को स्वीकार किया है, इसलिए अब इस बारे में कोई दिक्कत नहीं है। यहां कुछ चीनी मिलों के अनुभवों को माननीय सदस्यों ने सदन कि सामने रखा है।  कई जगह पर चीनी मिल ठीक नहीं चलती है, कई जगह पर पेमेंट नहीं होती है। मोतिहारी चीनी मिल का जिक्र माननीय सदस्य ने किया, हमने उसकी जांच की थी।  यह मिल तीन-चार साल से बंद है। ऐसी मिलों को इसका कोई फायदा नहीं होगा। यह सुविधा केवल उन मिलों के लिए है जिन्होंने पिछले साल क्रशिंग की, चीनी की पैदावार की, उस पर उनको जो एक्साइज के लिए पैसा देना है, उस एमाउण्ट पर बैंक उनको लोन देगी और फिर हम उसका इंट्रेस्ट देंगे। जिन चीनी मिलों ने उत्पादन ही नहीं किया, उनको इसका लाभ नहीं मिल सकेगा। ऐसी मिल को, वहां की सरकार द्वारा लिक्वीडेशन  के लिए निकालकर कुछ कदम उठाने की आवश्यकता है। जहां तक मोतिहारी मिल की बात है, उन्होंने किसानों के पुराने पेमेंट नहीं दिए, इसलिए उनको नोटिस दी गयी। इसके बाद वहां के गन्ना पैदा करने वाले किसानों के संगठन ने पटना हाईकोर्ट में एप्लीकेशन दी। उसके बारे में पटना हाईकोर्ट ने निर्णय दे दिया और बिहार सरकार को इस पर ध्यान देने के लिए कहा।  इसकी कीमत वसूली करने के लिए आर्डर दिए। इस आर्डर पर बिहार सरकार ने अभी तक ध्यान नहीं दिया है, इसलिए शायद कंटेम्प्ट ऑफ कोर्ट की स्थिति बिहार सरकार के लिए बनने वाली है।[R52]            श्री सीताराम सिंह ने जो मोतीहारी चीनी मिल का मसला बताया, वह कोर्ट में है और कई सालों से वह चीनी मिल बंद है। इस परिस्थिति में हम उसे लाभ देने की स्थिति में नहीं हैं और हम मदद नहीं कर सकते। वहां की सरकार को कुछ न कुछ इस बारे में कदम उठाने चाहिए। उद्योग, रोजगार और किसानों को बचाने के लिए यह आवश्यक कदम उठाया गया है। मुझे विश्वास है कि सदन इसे स्वीकार करेगा और हम इस कानून के माध्यम से शूगर डवलपमेंट फंड में पैसा कलेक्ट कर सकेंगे। यह पैसा देश के लाखों-करोड़ों किसानों को राहत देने के काम आएगा। साथ ही साथ शूगर इंडस्ट्री को इंटरनेशनली कम्पीटिटीव बनाने में भी हम सहायता दे सकेंगे। मुझे विश्वास है कि सदन इस पर सहानुभूतिपूर्वक विचार करके इस बिल को पास करेगा। उपाध्यक्ष महोदय: शरद पवार जी, आप मोहन सिंह को यह रिक्वेस्ट करें कि वह अपना प्रस्ताव वापस लें। श्री शरद पवार: उन्होंने शुरू में ही कहा था कि मैं इस पर जोर नहीं डालूंगा। आपने जो पहले प्रस्ताव दिया है, मैं अनुरोध करता हूं कि आप उसे वापस लें। श्री मोहन सिंह : उपाध्यक्ष महोदय, मंत्री जी ने बहुत ही विस्तार के साथ सारी बातों का उत्तर दिया है। मैं चाहूंगा कि जो उन्होंने सदन में आश्वासन दिया है, उसकी पूर्ति इनके मंत्री रहते ही होगी। इस विश्वास के साथ, चूंकि मेरी मंशा इस विधेयक को निरस्त करने की नहीं थी, मंत्री जी ने भी सदाश्यता का परिचय दिया है, इसलिए मैं सदन की अनुमति से अपने इस प्रस्ताव को वापस लेने की अनुमति चाहता हूं। MR. DEPUTY-SPEAKER:  Has the hon. Member Shri Mohan Singh leave of the House to withdraw his Statutory Resolution? SEVERAL HON. MEMBERS:  Yes. The Statutory Resolution was, by leave, withdrawn. MR. DEPUTY-SPEAKER:  The question is: “That the Bill further to amend the Sugar Development Fund Act, 1982 and the Sugar Cess Act, 1982, be taken into consideration.”   The motion was adopted. MR. DEPUTY-SPEAKER: The House will now take up clause by clause consideration of the Bill. MR. DEPUTY-SPEAKER: The question is: “That clauses 2 to 4 stand part of the Bill.”   The motion was adopted. Clauses 2 to 4 were added to the Bill. Clause 1                         Short Title and Commencement   श्री बची सिंह रावत ‘बचदा’ (अल्मोड़ा) : मैं प्रस्ताव करता हूं: पृष्ठ 1, पंक्ति 3 और 4 में,-           "चीनी विकास निधि (संशोधन)             अधिनियम, 2008" के स्थान पर”             "चीनी विधियां (संशोधन) अधिनियम, 2008"             प्रतिस्थापित किया जाए।                     (1)             उपाध्यक्ष महोदय, मैंने संशोधन मूव किया है इसलिए जो तकनीकी विषय है कि इस विषय पर क्यों यह संशोधन प्रस्तुत करना पड़ा। एक ही संशोधन है। हमारी जो स्थापित परम्परा है और विधायी कार्य की प्रक्रिया है, जहां एक से अधिक विधियां होंगी, एक ही विषय की होंगी, जो भी यहां बिल आते हैं, जैसे The Taxation Laws (Amendment) Bill है, वह मैं लेकर आया हूं; The Produces Cess Laws (Amendment) Bill यह भी मैं लेकर आया हूं। The Marriage Laws (Amendment) Bill, 2001 यह भी मैं लेकर आया हूं; The Indian Divorce Act and The Parsi Marriage and Divorce Act है, यह भी मैं लेकर आया हूं; जो हिन्दू मैरिज एक्ट है, इनका संशोधन एक ही बिल में हो सकता है, लेकिन आप जो बिल लेकर आए हैं, उसके द्वारा दो अधिनियम हैं- एक शूगर डवलपमेंट फंड एक्ट, 1982 है, उसमें संशोधन लेकर आए हैं और दूसरा शूगर सैस एक्ट, 1982 है, उसका भी संशोधन खंड तीन में है। लेकिन उसे नाम दे दिया गया है शूगर डवलपमेंट फंड अमेंडमेंट बिल, 2008। जब हम विधेयक को पारित करेंगे, उसकी धारा एक बनेगी।[R53]   वह धारा (एक) यह बननी है कि “शुगर डेवलपमेंट फंड अमेंडमेंट एक्ट, 1982”। जो इतनी बड़ी गंभीर त्रुटि हुई है, मैं यह नहीं कहता कि माननीय मंत्री जी ने त्रुटि की है, कानून मंत्रालय ने इसकी वेटेज देखी होगी, वहां से त्रुटि हुई है, फिर भी चूंकि माननीय मंत्री जी इसके इंचार्ज हैं, इनकी जिम्मेदारी बनती थी कि इसे देखते।  ठीक है, माननीय मंत्री जी ने खेल को काफी बढ़ावा दिया है, उसके लिए वे बधाई के पात्र हैं, वहां समय लगा होगा, लेकिन यहां हम इस सर्वोच्च सदन में विधेयक को प्रस्तुत करें तो यह स्थापित है कि आने वाले समय में, जहां भी यह जो सेस-एक्ट है, उसका अमेंडमेंट विद-ड्रा हो सकता है या फिर अगर एक ही नेचर के हैं, जैसे मैंने अभी उदाहरण प्रस्तुत किए हैं, ऐसे बहुत से उदाहरण हैं, क्रिमिनल लॉज अमेंडमेंट बिल, 1973 में आया था, सीआरपीसी, आईपीसी एंड एवीडेंस एक्ट अमेंड हुए थे और ये स्थापित रूल है कि एक से अधिक बिल अगर होगा तो आपको लॉज लेकर आना होगा। लेकिन आप लेकर आये हैं “शुगर डेवलपमेंट फंड”। यह इतनी बड़ी त्रुटि है, इसका निदान करना चाहिए और मैंने जो संशोधन प्रस्तुत किया है, उसे स्वीकार करें। मैंने सहयोग किया है ताकि सरकार और सदन को सहयोग हो। आप अपनी ओर से अमेंडमेंट लेकर आयें क्योंकि यह ऑन-रिकार्ड हमेशा के लिए रहेगा कि इस तरह की एक ग्रॉस-नैगलिजेंस हुई है, प्रथम-दृष्टया यह घोर लापरवाही का द्योतक है। इसमें सदन की ओर से, अध्यक्ष पीठ की ओर से निर्देश जाना चाहिए कि हमेशा विधेयक प्रस्तुत करने से पूर्व उसकी जो अंतरवस्तु है, उसे देखा जाना चाहिए। यह न केवल हमें और सत्ता पक्ष को प्रभावित करता है बल्कि यहां जो भी माननीय सदस्य उपस्थित हैं वे इस बात को स्वीकार करेंगे कि हम जो भी बिल पास करें, उसके समर्थन में विषय-वस्तु उसके अंदर है। यह तकनीकी प्रश्न है, इसलिए या तो आप इसे राज्य सभा में लेकर जाएं, वहां अमेंडमेंट लेकर आयें या इसमें यह कर सकते हैं कि “शुगर डेवलपमेंट फंड अमेंडमेंट बिल एंड शूगर सेस अमेंडमेंट बिल” इसके ऊपर बिल के हैडिंग में जोड़ें या फिर आप नीचे जो धारा (एक) लेकर आयेंगे, वहां भी आपको इसे जोड़ना पड़ेगा। कुल मिलाकर यह जो डिफैक्ट है, इस डिफैक्ट को रिमूव होना चाहिए। इसलिए मैं अपने संशोधन पर पूरा-पूरा बल देता हूं और उम्मीद करता हूं कि माननीय मंत्री जी, सहयोग का रुख अपनाते हुए, मेरे इस संशोधन को स्वीकार कर लेंगे, क्योंकि सदन में यह किसी भी पक्ष से आये, आप लेकर आयें तो हम समर्थन करेंगे, हमने किया है तो आप समर्थन कीजिए, सदन का कार्य हो जाएगा और सदन की गरिमा रहेगी और विधायी प्रक्रिया और विधायी कार्य की गंभीरता भी आगे के लिए बनी रहेगी। बहुत-बहुत धन्यवाद। THE MINISTER OF AGRICULTURE AND MINISTER OF CONSUMER AFFAIRS, FOOD AND PUBLIC DISTRIBUTION (SHRI SHARAD PAWAR): Mr. Deputy-Speaker, Sir, it is difficult to accept this proposed suggestion. The suggestion is, “in page 1, line 2, ‘for Sugar Development Act, 2008’, substitute ‘Sugar Law Amendment Act, 2008’” In fact, this particular law is there for a number of years with the same name. There is no law titled as Sugar Law Act. The proposed Bill seeks to amend the Sugar Development Fund Act, 1982 and the Sugar Cess Act, 1982. The Sugar Development Fund Act seeks to provide finance to the activities for the development of the sugar industry. The Sugar Cess Act, 1982 was enacted for the imposition of the cess on sugar for the development of the sugar industry. In other words, both the Acts have been enacted for the development of the sugar industry by way of providing the Sugar Development Fund. The sugar cess collected as provided by the Parliament was to constitute a fund for the development of the sugar industry.           Therefore, it was thought proper to keep the title of the Bill as Sugar Development Fund (Amendment) Bill, 2008. Moreover, after passing the Bill, the proposed amendment will be incorporated in the respective Acts. The proposed amendment at the title of the Bill would not affect the legislative intention and that is why it is very difficult for me to accept the hon. Member’s suggestion. So, I appeal to him that he should withdraw this amendment. MR. DEPUTY-SPEAKER : Now he has given a detailed reply. So, you may withdraw your amendment. श्री बची सिंह रावत ‘बचदा’ (अल्मोड़ा) :   माननीय उपाध्यक्ष जी, आपने अभी जो वक्तव्य दिया है वह स्वीकार करने योग्य इसलिए नहीं है कि कोई शुगर लॉज एक्ट पहले से है, ऐसा हमारा कहना नहीं है। जो माननीय मंत्री जी ने रिप्लाई दिया है, मिसलीडिंग रिप्लाई दिया है, उससे मैं सहमत नहीं हूं। मैं अपने प्रस्ताव पर बल देता हूं और उम्मीद करता हूं कि आप फिर इसमें संशोधन करेंगे। MR. DEPUTY-SPEAKER : I shall now put amendment No. 1 moved by Shri Bachi Singh Rawat ‘Bachda’ to the vote of the House. The amendment was put and negatived.[R54]  MR. DEPUTY-SPEAKER : The question is: “That Clause 1, the Enacting Formula and the Tile be added to the Bill.”   The motion was added Clause 1, the Enacting Formula and the Long Title were added to the Bill.  SHRI SHARAD PAWAR: I beg to move:           “That the Bill be passed.”      MR. DEPUTY-SPEAKER: The question is:           “That the Bill be passed.” The motion was adopted.

Statutory Resolution Regarding Disapproval Of Sugar Development ... on 17 March, 2008

Lok Sabha Debates

Court No. - 41 Case :- CRIMINAL MISC. WRIT PETITION No. - 1074 of 2010 Petitioner :- Deena Nath Mishra And Others Respondent :- State Of U.P. & Others Petitioner Counsel :- Diptiman Singh,S.D. Singh Respondent Counsel :- Govt. Advocate Hon'ble Imtiyaz Murtaza,J. Hon'ble Naheed Ara Moonis,J. Challenge in this petition is to the F.I.R. registered at case crime no. 42 of 2010 under sections 420, 427, 264, 265 and 120-B I.P.C read with Section 3/7 of Essential Commodities Act, 1955 police station Khatauli District Muzaffarnagar. We have heard learned counsel for the petitioners, learned A.G.A. for the State and Shri Ravindra Singh, learned counsel for the Cane Development Societies Ltd. The issues canvassed before us are the self same issues which have been elaborately argued in Criminal Writ Petition No. 1072 of 2010 in which while granting interim order staying the arrest of the petitioners, the petition has been posted for final hearing on 8.3.2010 alongwith other petitions involving similar issues. For detailed order, see order dated 25.1.2010 passed in writ petition no. 1072 of 2010. Learned A.G.A. may file counter affidavit within four weeks. Learned counsel for the Cane Development Society may also file counter affidavit within the same period. Rejoinder affidavit, if any, may be filed within one week next thereafter. List this matter on 8.3.2010 alongwith writ petition no. 1072 of 2010. Till then the arrest of the petitioners namely, Deena Nath Mishra, Bhupendra Singh and Pramod Kumnr who are wanted in the case, as aforesaid, shall remain stayed. Order Date :- 25.1.2010 o.k.

Deena Nath Mishra And Others vs State Of U.P. & Others on 25 January, 2010

Allahabad High Court

Gujarat High Court Case Information System Print CR.RA/60/2011 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL REVISION APPLICATION No. 60 of 2011 ========================================= DEVENDRABHAI DHIRAJLAL DESAI - Applicant(s) Versus STATE OF GUJARAT & 1 - Respondent(s) ========================================= Appearance : MRMPSHAH for Applicant(s) : 1,MS. KRUTI M SHAH for Applicant(s) : 1, MR LR POOJARI, ADDL. PUBLIC PROSECUTOR for Respondent(s) : 1, None for Respondent(s) : 2, ========================================= CORAM : HONOURABLE MR.JUSTICE MD SHAH Date : 18/04/2011 ORAL ORDER Notice returnable on 14.06.2011. Mr.L.R.Poojari, learned APP waives service of notice on behalf of respondent no.1 - State. Interim relief in terms of para 7(B) is granted on the condition that the applicant will deposit Rs.20,000/- (Rupees Twenty Thousand only) on or before returnable date with the Trial Court. If such amount is deposited by the applicant before the Trial Court, then, respondent no.2 is at liberty to withdraw the said amount. Direct service is permitted. [M.D.Shah, J.] satish     Top

Author: Md Shah,&Nbsp;

Devendrabhai vs State on 18 April, 2011

Gujarat High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA CR. REV. No.1276 of 2009 Law Jaiswal, son of late Mahabir Jaiswal, resident of village-Amirtha, P.S.-Kudera, District- Kaimur at Bhabua. ......Petitioner Versus 1. The State Of Bihar. 2. Smt. Rita Devi, wife of Law Jaiswal, resident of village- Amirtha, P.S.-Kudera, District- Kaimur at Bhabua. .....Opposite Parties ----------- V.K. Pandey ( Amaresh Kumar Lal, J.) 3. 19.09.2011 The husband-petitioner has preferred this revision application under Section 19 (4) of the Family Courts Act against the order dated 17.12.2008 passed by the learned Principal Judge, Family Court, Kaimur at Bhabua in Maintenance Case No.2/2008 by which he has been directed to pay a sum of Rs.1500/-per month to his wife, opposite party no.2. The learned counsel for the petitioner submits that the opposite party no.2 has married with Asharfi Jaiswal in the year 2010 and as such, he is not liable to pay the amount of maintenance. This fact cannot be looked into at this stage. The petitioner may raise his grievance before the learned Principal Judge, Family Court, Kaimur at Bhabua in accordance with law. This revision application stands disposed of.

Law Jaiswal vs State Of Bihar & Anr on 19 September, 2011

Patna High Court - Orders

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C) No. 36399 of 2007(G) 1. M/S.EMSONS TREAT WOOD LTD., NALAM MILE, ... Petitioner Vs 1. THE STATE LEVEL COMMITTEE FOR SALES TAX ... Respondent 2. THE COMMISSIONER OF COMMERCIAL TAXES, 3. THE STATE OF KERALA, For Petitioner :SRI.T.M.SREEDHARAN For Respondent : No Appearance The Hon'ble MR. Justice ANTONY DOMINIC Dated :10/12/2007 O R D E R ANTONY DOMINIC, J. = = = = = = = = = = = = = = = = W.P.(C) No. 36399 OF 2007 G = = = = = = = = = = = = = = = = Dated this the 10th December, 2007 J U D G M E N T The challenge in this writ petition is against Ext. P6 by which the claim of the petitioner for exemption from payment of purchase tax has been rejected by the State Level Committee on Sales Tax Exemption. Ext. P6 itself shows that the proceedings are of 14.6.2006. The writ petition is filed only now and absolutely no explanation is forthcoming for the delay in challenging Ext. P6. Therefore, in view of the delay and laches involved, the writ petition deserves to be dismissed and I do so. ANTONY DOMINIC JUDGE jan/-

M/S.Emsons Treat Wood Ltd. vs The State Level Committee For ... on 10 December, 2007

Kerala High Court

Gujarat High Court Case Information System Print SCA/14095/2004 3/ 3 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 14095 of 2004 ========================================================= DEEPIKABEN JAIRAM DAS THAKKAR - Petitioner(s) Versus DISTRICT EDUCATION OFFICER & 2 - Respondent(s) ========================================================= Appearance : MR YF MEHTA for Petitioner(s) : 1, MS NAYNABEN K GADHVI for Respondent(s) : 1, 3, MS KRINA CALLA, ASST. GOVERNMENT PLEADER for Respondent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 24/10/2008 ORAL ORDER1. The petitioner has prayed for a direction to the respondents to consider the case of the petitioner on merits and to give equal treatment as per the norms of appointment as on the date of call letter for the post of Vidhya Sahayak and to notionally consider the seniority of the petitioners in terms of merits of the petitioner. 2. The petitioner is holding degree in Diploma in Education from Maharashtra University which is equivalent to PTC Course in the State of Gujarat. The respondent has issued an advertisement calling for the post of Vidhya Sahayak. On the date of advertisement the D.Ed qualification from Maharashtra University was considered to be equivalent and at par with PTC, Gujarat. Subsequently vide Government Resolution dated 04.05.2004 the earlier Government Resolution dated 22.06.1978 came to be cancelled and the equivalence was removed. As a result the petitioner's interview was postponed, other candidates were interviewed and given appointment. 3. The contention of the petitioner is that it is not open to the competent authority to change the condition after the advertisement was issued. To support her contention she has relied upon the decision of the Apex court in the case of State of Uttaranchal Vs. Sidharth Srivastava wherein it is held that in the recruitment process rules in force at the time of initiation of selection process have to be applied. Similar view has been taken in the case of M.A. Murthy Vs. State of Karnataka, reported in (2003) 7 SCC 517 and in the case of Suman Verma Vs. Union of India and others, reported in (2004) 6 Services Law Reporter 138. 4. Learned Advocate for the petitioner has also relied upon a decision of this Court dated 31st August 2004 passed in Special Civil Application Nos.10446 and 10465 of 2000 whereby the petition was allowed on the ground that it is not open to the respondent authority to change the criteria of selection in the midst of the selection process. 5. Learned Advocate for the respondent is unable to controvert the aforesaid position. 6. Considering the facts and circumstances of the case and the above referred decisions, I am of the opinion that on the date of the issuance of the advertisement, the petitioner was entitled to be considered for the post of Vidhya Sahayak as per the existing policy and the petitioner was deprived of her genuine right. Therefore the case of the petitioner deserves to be considered by the respondent as on the date of the advertisement. 7. In the premises aforesaid, considering the facts and circumstances of the present case, as well as considering the decisions of the Apex Court, it is held that the petitioner was eligible for considering her case as on the date of the advertisement and the respondent authority should have considered her case for the post of Vidhya Sahayak. The respondent authority shall therefore consider the case of the petitioner, and she shall be appointed on the post of Vidhya Sahayak if she is otherwise eligible on merits. It is clarified that the upper age factor will not come in the way of the petitioner while considering her case because of the present litigation. The aforesaid exercise will be completed within a period of one month from the date of receipt of writ of this order. It is further clarified that the petitioner shall be given seniority from the date on which other candidates were appointed pursuant to the advertisement, but she shall not be entitled to salary from the said date. 8. The petition is allowed to the aforesaid extent. Rule is made absolute accordingly with no order as to costs. (K.S. Jhaveri, J.) (Caroline)     Top

Author: Ks Jhaveri,&Nbsp;

Deepikaben vs District on 24 October, 2008

Gujarat High Court

IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 16?" DAY OF DECEMBER, 2009 PRESENT % THE HOE\3'BLE MR. JUSTICE v. GO.P.ALA4GOWDA::'_';»: " AND V A' 4' THE HON'BLE MRS. JUSTICE'B.«.\/'V. NAG.A'R.ATT~:Vr§'A'.,; :1 WRIT APPEAL No.17/2OQ§"'(.CS--sRES§' «S1: : 1 BETWEEN t t A The Primary Co~operative_Agricu!~ture~ ' & Rurat Devetopment :Ba'n_k'1'L,im¥i_ted, . V Bhadrava-thi, represe,n~ted5';by_V its'Secreta.r~,é'- , Present Manager BEN. 'J'i-shWa_naath'a.a R-a._o',, " > Aged about 54 yearSw,._R/a'.t"Bha_d"rava't%,_ Shivamoga District. * N Appellant (By Sri" $Van'o'a_dh.é".rappa, Advocate for -- " M/s~.~ AVG Associates) ANE3: Vt 1. The"Bepat'y«t_tReg;-stt1rar of V Co--'operative'."SoAcieties, ' " Shiva-mogxa ~Dj$:trict, Shivamoga. Lakshrnan, S/0 Mudcfaiah, . ' Agedt about 48 years, R'/-at-N_o--'.257, Zinkiine Road, -Bhagciravathi, Shivamoga District. ""v.ul§'(H."iavarappagowda, ~ 8/0 HD. Kenchegowda, Aged about 55 years, I/_'. Senior Assistant, Karnataka State Cov-«operative Agricultural & Rural Development Bank Limited, R.T.O. Office Road, Shivamoga. (By Sri D. Vijayakumar, AGA for R1, V _ M/s. Chandru & S. Shekar Associates,;Ad'vo«r:ates for This Writ Appeal is filed under section éifit the High Court Act praying to set aside the order passed»'in4th_ve writ l petition No.19173/2007 dated 11.11.2o_o8,bandiie.tc; This Writ Appeal comingzon fo-i*"'di,_cta't-Eng judgment this day, B.\f.Nagarathna. 3., deli've_ifed the,V-folI'o.wi,,n"g,:_ The correctnessiotéttiiie o_rcler,_ learned Single Judge in w.r>.i\io.i1.91iCi7al;<,ro':?" 'i'1'1""1."1t;1§'2oo8 is calied in question in this -the Primary Co-operative Agriculture and Fit'i--raI*Dey'e.lop'n2e'r'i_.t'Bank Limited, Bhadravathi. re-levaynt faCt's'"'of the case are that the second respond_.e'n_t_"had._ibol'r{olzf;ed certain sum of money from the :7.ap~pellant§B_aVnk account of non-payment of the said loan --'alrfiioii_n't., the Ba__n~k had initiated proceedings before the Deputy i5{egi.5ti'-a_AAri.o_i;j'A",Co--operative Societies, first respondent herein. in proceeding i.e., Dispute No.96/99-2000, on account of Viitvtyherebeing no appearance by the Secretary of the said Bank and "there being no assistance for the adjudication of the dispute, by 49:: 3 its order dated 29.9.2003, thenfirst respondent held that the Bank had failed to prove the outstanding loan and directed that the Sr. Assistant of the Bank third respondent herein, shouldltlpal,/_V the balance amount,'if any, which was to be paid by respondent--borrower thereby fastening theggggliabilityron.:ft~he'*l~thi.rd " respondent. Being aggrieved by the said d,i4rectiio,n A the fastening of the liability personally him, AThyirdt.'vr'es:p:onde§ntVi filed an appeal before the Appellate A"utho,rity'ci1al_l'engViVing the order passed in Dispute No.96/9_§."-2G30.;.j_~i;he_','A.p'pe|late Authority considered the contentions ofvthe.h_third- and allowed the appeal and the w'lth{.r_egard;--t'o'the' responsibility of paying the balance'Ioran"ain,ou.nt--.on----the third respondent was set aside. .3; .BVe"ln§:,,,aggrievedlbylthe said order the Bank for the first time order of the Deputy Registrar of Co- l"oxpe'.'ative AS~o_cie__ties;,}als well as the Appellate Authority in the writ ,The'v..£earned Single Judge after hearing both sides ».t.h'e writ petition. It is the said order, which is chal'len.g.ed in this appeal. ' Q /4 5. We have heard the learned counsel for the appellant ~ Bank and the learned counsel for the respondents. 6. It is contended on behalf of the Bank thjait absence of there being any assistance by-the.'Ba-nkgbeiogrei' Deputy Registrar of Cooperative Societies, have been simply dismissed for nonV§p.r'o's_ecut.i'on,. impugned order which has been" passedVVV:.a_:nd"thatonvaccoiunt of the allowing of the appeal by without remanding the matt6V_iiba:ck_to the interest of the Bank has suffered:1»~l¥iVe.'t«herie'fo_re_ requests this Court that the learned Single j:u"dvfg..ewoyugii-t;'t'ci__i1av_e"given an opportunity to the Bank to contest the.matter"--by'Challenging the award made by the Deputy -R.egist'ra,r0f 'Coevoperative Societies. Per:'«:.con'tra, |ea'r'ned...counsel for the second respondent submits' ;th'at_*i.n:'=tvhe°absence of there being any materiai :it°p.ro.cfuced"before ith"e_i€3'eputy Registrar of C0--operative Societies, _ th~e'_4oi-d_er passed therein is just and proper and the same was riot 4bee'n_co'ntested in appeal and therefore, the learned Single in right in dismissing the writ petition. 2%] 8. Having heard the learned counsel on both sides andon perusal of the material placed on record, it is evident Bank did not produce any material so as to outstanding loan amount which was over:~du,e an_d'V"n"o.tf:pai'dby the second respondent. In the absence of':.an§/iassistance byft-he'::,c_' Bank, the Deputy Registrar of Co~o'pe":'=ative"fiocietieslflh2e.l..dmthati the Bank was unsuccessful in__ proving._Vt'he"d_ebt..' «~._H:oAweVx}er the direction was given as against 'i"the"--c_l_:|'l}irj.rJ '4.'i'€-ifspjondent to make good the balance amount due to it 9. It is not order passed by the Deputy Registrar §oci"eties, no challenge was made to tlqN.f,Qg¢lr"i'!e' ="proceedings by the Bank. However, the,third'reisporidentl'in his individual capacity filed an al5l?,éE5'l" Se'é'3<CiT'|§K"dé'l€ti0n ACV>"f"'the direction against him personally with.,tc»._,_V'the.,:'_fastening of the liability vis-a--vis the ll'~v._'Ao'utstanding debt the second respondent. that as it may, the said two orders were challenged writli petition by the Bank. However, the learned Single VfJudgyevldlsmissed the writ petition. From the aforesaid narration, iwhat becomes apparent is that in the absence of there being any 2 IA" challenge made to the order of the Deputy Registrar of the Co» operative Societies by the Bank, there has been no adjudication of the liability of the second respondent the outstanding dues owed to the Bank. 11. In the circumstances, while coirifirming assigned by the learned Single 3udge,"tve"howVev*e_r,'feel interest of justice would be.hn~e_t |iber't'y'"to the appe¥|ant-Bank to challenge the passed by the Deputy Registra:ri.VL:yIbefo=re Ab:pe'l~!af§V.T'Authority if so advised. 12. Accord«_irig|Vy;"V.t'hisivvi<i_t:"'va_p'peal is disposed of in the above terms. V V ..... ' g§f%'_ I:;dg"§ Sdfée Judd?

Author: V.Gopalagowda And B.V.Nagarathna

The Primary Co-Operative ... vs The Deputy Registrar Of ... on 16 December, 2009

Karnataka High Court

Court No. - 3 Case :- WRIT - C No. - 41423 of 2007 Petitioner :- Smt. Kiran Singh Respondent :- Union Of India Thru' Secretary Min. Of Petroleum & OthersPetitioner Counsel :- Arvind Singh,Shashi Nandan Respondent Counsel :- A.S.G.I.,SanjeeV Singh,Tarun Varma Hon'ble Amitava Lala J. Hon'ble S.N.H. Zaidi.J. Affidavit of service be kept with the record. Order Date :- 28.1.2010 ank

Smt. Kiran Singh vs Union Of India Thru' Secretary ... on 28 January, 2010

Allahabad High Court

Central Information Commission CIC/AD/A/2009/001472 Dated 18th November, 2009 Name of the Applicant : MR. PANKAJ WADHWA Name of the Public Authority : MINISTRY OF EXTERNAL AFFAIRS Background1. The Applicant filed his RTI request on 16.07.09 with the PIO / Regional Passport Office, Delhi requesting for information on the action taken on his 3 representations. The PIO replied on 13.08.09 informing him that a show cause Notice was sent to Smt. Minoti Bahri on receipt of the letters mentioned in his application and that till date, no action has been contemplated under Section 10(3) of Passport Act. He also stated that against serial no.1 reminders have also been sent and denied information against point 4 as it was related to third party under Section 8(1)(j) of the RTI Act, 2005. The Appellate Authority also replied on 18.09.09 reiterating the contentions as given by the PIO. Not satisfied with reply from the Appellate Authority, the Applicant filed a Second Appeal before the CIC on27.10.09. 2. The Bench of Mrs. Annapurna Dixit, Information Commissioner scheduled the hearing for 18th November, 2009. 3. Mr. V. Mahalingam, RPO & CPIO and Mr.Suresh Chand, Asstt. represented the Public Authority. 4. The Applicant was not present during the hearing. Decision 5. The Respondent stated that the issue is related to a dispute between a husband and wife over the passport of their child . The Respondent further added that both husband and wife had filed RTI requests and that in compliance with the order of the Appellate Authority, the papers submitted by the husband were given to the wife. According to the Respondent, the Appellant now wants a set of his papers which were submitted to the wife. The Commission directs the CPIO to provide the information sought by the Appellant by 15th December, 2009. (Annapurna Dixit) Information Commissioner Authenticated true copy: (G. Subramanian) Assistant Registrar Cc: 1. Mr. Pankaj Wadhwa 10/12 Sarvapriya Vihar Delhi. 2. The PIO M/o External Affiars, HUDCO Trikoot - 3 Bhikaji Cama Place R.K. Puram, New Delhi. 3. The Appellate Authority M/o External Affairs O/o JS(CPV) & First Appellate Authority Patiala House Annexe, Tilak Marg, New Delhi. 4. Officer in charge, NIC 5. Press E Group, CIC

Mr. Pankaj Wadhwa vs Ministry Of External Affairs on 18 November, 2009

Central Information Commission

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.200 of 1988 Date of decision : 09-01-2009 Smt. Ram Piari Saini ....Petitioner VERSUS State of Punjab and others ....Respondents CORAM:- HON'BLE MR. JUSTICE PERMOD KOHLI Present: Mr. B.S. Chahal, DAG, Punjab. PERMOD KOHLI, J. (PERMOD KOHLI) 9-1-2009 JUDGE manju Petitioner has challenged the promotion of respondents No.3 to 6 to the post of Superintendent Home in the scale of Rs.700- 1200 vide impugned order dated 28-6-1987. The grievance of the petitioner is that petitioner is senior to the respondents in the seniority list maintained by the Department. This fact is not in dispute and is admitted in the written statement filed by the respondents. Promotion is made on two counts that the promotion is temporary in nature for a period of six months only, secondly that the petitioner is not graduate and was not eligible for such promotion. There is nothing on record to show whether these temporary promotions are continued beyond six months or not. Otherwise also on account of ineligibility of the petitioner, she has no right to seek promotion. Petition is dismissed as having rendered infructuous.

Smt. Ram Piari Saini vs State Of Punjab And Others on 9 January, 2009

Punjab-Haryana High Court

Court No. - 19 Case :- APPLICATION U/S 482 No. - 33310 of 2009 Petitioner :- Tinku Respondent :- State Of U.P. And Another Petitioner Counsel :- Amit Saxena Respondent Counsel :- Govt. Advocate Hon'ble Ashok Kumar Roopanwal,J. Heard Mr. Amit Saxena, learned counsel for the applicant, learned AGA for the State and perused the record. It has been contended by Mr. Saxena that the applicant and his father were nominated as accused in the case. The statement of the victim Manju was recorded u/s 164 Cr.P.C. as is evident from the bail order passed by this court on 5.12.2007 in Criminal Misc. Bail Application no. 27415 of 2007. In the statement she stated that she had performed marriage with the applicant with her own free will and wanted to live with him. It has further been argued by Mr. Saxena that the trial of the applicant and his father were separated and when the statement of the victim was recorded against the father of the applicant she again supported that version, which was given by her u/s 164 Cr.P.C. In such view of the matter, there was no propriety to submit the charge sheet and the charge sheet is liable to be quashed. Issue notice to respondent no. 2. Both the respondents may file counter affidavit within two weeks. Rejoinder affidavit, if any, may be filed within one week thereafter. List thereafter. Till then the proceedings of Case No. 3795 of 2009, State Vs. Tinku, pending in the Court of J.M. 1st, Bulandshahar, shall remain stayed. Order Date :- 27.1.2010 Pcl

Tinku vs State Of U.P. And Another on 27 January, 2010

Allahabad High Court

Gujarat High Court Case Information System Print SCA/1458/2003 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 1458 of 2003 ========================================================= BRUHAD SAURASTRA SAFAI KAMDAR MANDAL - Petitioner(s) Versus SARPANCH - Respondent(s) ========================================================= Appearance : MR ARVIND K THAKUR for Petitioner(s) : 1, MR DIVYESH SEJPAL for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE H.K.RATHOD Date : 02/05/2011 ORAL ORDER Learned advocate Mr. D.C. Sejpal for respondent placed on record a note addressed to registry dated 29th April, 2011. Considering averments made in note, name of learned advocate Mr. D.C. Sejpal is deleted for appearing on behalf of respondent. However, considering the fact that now learned advocate Mr. D.C. Sejpal is not going to appear on behalf of respondent - Sarpanch, Amarapara Gram Panchayat, Tal. Babra, Dist. Amreli, therefore, issue NOTICE to respondent returnable on 1 st July, 2011. [H.K. RATHOD, J.] #Dave     Top

Author: H.K.Rathod,&Nbsp;

Bruhad vs Sarpanch on 2 May, 2011

Gujarat High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM CRP.No. 434 of 2005() 1. KAVANANCHERRY HASSANKUTTY, ... Petitioner Vs 1. THE TALUK LAND BOARD, ERANAD. ... Respondent 2. STATE OF KERALA REPRESENTED BY 3. PERUMBALAVAN MOOSAKUTTY, 4. PATHUMMA, W/O. PERUMBALAVAN IBRAHIM, 5. MOHAMMEDALI, S/O. PERUMBALAVAN 6. VEERANNI, S/O. PERUMBALAVAN IBRAHIM, 7. ISHAK, S/O. PERUMBALAVAN IBRAHIM, 8. RAZACK, S/O. PERUMBALAVAN IBRAHIM, 9. SAFIA, D/O. PERUMBALAVAN IBRAHIM, 10. AYSHA, D/O. PERUMBALAVAN IBRAHIM, For Petitioner :SRI.V.V.ASOKAN For Respondent :SRI.K.SHIBILI NAHA The Hon'ble MR. Justice HARUN-UL-RASHID Dated :20/06/2008 O R D E R HARUN-UL-RASHID, J. -------------------------------------------- C.R.P. NO. 434 OF 2005 -------------------------------------------- Dated this the 20th day of June, 2008 O R D E R The declarant in Ceiling Case No.C.R.23 of 1983 on the file of the Taluk Land Board, Ernad is the revision petitioner. The revision is directed against the order of the Taluk Land Board dated 21.2.2005 whereby the declarant was directed to surrender 3.42 acres of land. 2. The Taluk Land Board by an earlier order dated 27.9.1990 directed the declarant to surrender 4.12 acres declared as excess land. In the petition filed under Section 85(8) of the Kerala Land Reforms Act, 1963 (hereinafter referred to as "the Act"), this Court in C.R.P. No.191 of 1991 passed final order dated 10.6.1996 holding that an extent of 0.50 cents in R.S. No.218 belonged to the claimant for which he had obtained the certificate of purchase. This Court, therefore, modified the said order of the Taluk Land Board and excluded 50 cents of land in R.S.No.218 from the account of the declarant. Thus the total extent of land liable to be surrendered by the declarent is 3 acres and 62cents. Subsequently,  C.R.P. NO.434/2005 2 another claimant filed a petition under Section 85(8) of the Act. On enquiry, the authorised officer reported that the claimants had right over 20 cents of land in R.S. No.311 and that they have purchased the jenm right of the land from the Land Tribunal. The claim in respect of the larger extent is declined by the Land Tribunal by the impugned order. 3. The declarant filed a petition under Rule 136 A of the Kerala Land Reforms (Tenancy) Rules, 1970 pointing out that the lands in R.S. Nos.308, 311, 219/2B and 213 were shown in the draft statement as cashew gardens, but those lands were other dry lands as on 1.6.1964 and that conversion into cashew garden was after 1.4.1964. The said petition was rejected by the Taluk Land Board being belated. 4. Learned counsel appearing for the revision petitioner submitted that surrender of 4.12 acres of land was ordered taking into account the standard area of the lands at the credit of the declarant in excess of 10 standard acres and that classification of lands in ceiling cases is to be reckoned with the position as on 1.4.1964. She further urged that if the properties were classified correctly, the declarant would not be liable to surrender any more land. Learned counsel further submitted that pursuant to the order of the Taluk Land Board dated 27.9.1990 directing the  C.R.P. NO.434/2005 3 declarant to surrender 4.12 acres of land, the declarant had surrendered 3 acres. This, according to counsel, was not taken note of by the Taluk Land Board while passing the impugned order. 5. The question raised is regarding the classification of lands owned by the declarant. In view of the submissions made by the learned counsel for the revision petitioner, I am of the view that the matter requires reconsideration. The order under revision is, therefore, set aside and the Taluk Land Board is directed to consider afresh the question regarding the classification of lands. For the purpose of examining the classification and conversion, the Taluk Land Board shall make enquiry including physical verification of the site. The matter shall be disposed of within a period of six months from the date of receipt of a copy of this order. The Civil Revision Petition is disposed of as above. There will be no order as to costs. (HARUN-UL-RASHID, JUDGE) sp/  C.R.P. NO.434/2005 4 HAURN-UL-RASHID, J. C.R.P. NO. 434/2005 O R D E R 20th June, 2008 

Kavanancherry Hassankutty vs The Taluk Land Board on 20 June, 2008

Kerala High Court

Gujarat High Court Case Information System Print CR.MA/10346/2008 4/ 4 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 10346 of 2008 ========================================================= DURGABEN HIMATBHAI GADHVI & 1 - Applicant(s) Versus STATE OF GUJARAT - Respondent(s) ========================================================= Appearance : MR ASHISH M DAGLI for Applicant(s) : 1 - 2. MR HL JANI, APP for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE H.B.ANTANI Date : 06/08/2008 ORAL ORDER Rule. Mr.H.L.Jani, learned Additional Public Prosecutor waives service of Rule on behalf of the State. In the facts and circumstances of the case and by consent of both the sides, this application is taken up for hearing today. This application is preferred under Section 439 of the Code of Criminal Procedure for regular bail in connection with FIR registered as CR No. I? 48 of 2008 registered with Padhdhari Police Station, District Rajkot for the offence/s punishable under Section/s 498A, 306 and 114 of the Indian Penal Code. Learned advocate for the petitioners submitted that considering the role attributed to the petitioners which is reflected at Annexure-A to the petition, petitioners are not at all involved in the commission of offence. Even otherwise petitioner no.1 is residing at Bhuj and not involved in the commission of offence alleged. Further considering the FIR at Annexure-A to the petition and role attributed to the petitioners, both the petitioners may be enlarged on bail. Learned APP Mr.H.L.Jani, opposing the bail application, submitted that both the petitioners are involved in the offences punishable under Sections 498A, 306 and 114 of IPC. Considering the nature of involvement in the offences and the manner in which the offence is committed, the petition deserves to be dismissed. Heard Mr.A.M.Dagli, learned advocate for the petitioners and Mr.H.L.Jani, learned Additional Public Prosecutor at length and in great detail. I have also perused the averments made in the application as well as the FIR produced on the record. Considering the above, I am of the view that the petitioners are required to be enlarged on regular bail, without discussing the evidence in detail. In the facts and circumstances of the case, the application is allowed and the petitioners are ordered to be enlarged on bail in connection with CR No. I? 48 of 2008 registered at Padhdhari Police Station on executing a bond of Rs.10,000/- each [Rupees ten thousand only] with one surety each of the like amount to the satisfaction of the Trial Court and subject to the conditions that they shall: [a] not take undue advantage of their liberty or abuse their liberty; [b] not act in a manner injurious to the interest of the prosecution; [c] surrender their passport, if any, to the lower Court within a week; [d] not leave the State of Gujarat without the prior permission of the Sessions Court concerned; [e] furnish the present address of their residence to the I.O. and also to the Court at the time of execution of the bond and shall not change their residence without prior permission of this Court; [f] maintain law and order. If breach of any of the above conditions is committed, the Sessions Judge concerned will be free to issue warrant or to take appropriate action in the matter. Bail bond to be executed before the lower Court having jurisdiction to try the case. At the trial, the Trial Court shall not be influenced by the observations of preliminary nature, qua the evidence at this stage, made by this Court while enlarging the petitioners on bail. Rule is made absolute to the aforesaid extent. Direct service is permitted. (H.B.ANTANI, J.) (ila)     Top

Author: H.B.Antani,&Nbsp;

Durgaben vs State on 6 August, 2008

Gujarat High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.28697 of 2010 SOHARAI SAHANI, S/o Late Daroga Sahani, R/o Village- REva Malah Toli, P.S.-Saraiya, District-Muzaffarpur. Versus STATE OF BIHAR ----------- Sujit (S.N. Hussain, J.) 2. 07.10.2010 Heard learned counsel for the petitioner. 2. Petitioner is an accused for the offence punishable under sections 147, 148, 323, 302, 201, 379/364 of the Indian Penal Code. 3. Learned counsel for the petitioner submits that earlier petitioner was arrested and he was released on bail on the order of this court dated 05.03.1998 passed in Cr. Misc. No. 4324 of 1998 . Learned counsel for the petitioner further submits that thereafter he had been regularly making pairvi in the case, but he had to go outside the State to earn his likelihood entrusting his case to his pairvikar, but the said pairvikar did not do the necessary pairvi in the case till the date of commitment i.e. 15.07.1998 hence the bail bonds were cancelled and the case was committed to the court of sessions. It is further stated that thereafter the pairvikar did not inform the petitioner about any development of the case and hence in absence of any knowledge to the said effect he was taken into custody on 5.04.2010 and since then he is in custody, although six months have elapsed. 4. Considering the aforesaid facts and circumstances of the case, petitioner, named above, is directed to be released on bail on furnishing bail bond of Rs. 10,000/- with two sureties of the like amount each to the satisfaction of learned Additional District Judge-F.T.C.-V, Chapra, Saran in connection with S.T. No. 235/1998 subject to the conditions that petitioner will have to appear on each and every date of the case as per direction of the court below and one of the bailors must be a close family member of the petitioner.

Soharai Sahani vs State Of Bihar on 7 October, 2010

Patna High Court - Orders

[Section 7] [Complete Act]

Central Government Act

IN THE HIGH COURT OF KERALA AT ERNAKULAM RP No. 809 of 2005(A) 1. STATE OF KERALA, ... Petitioner 2. THE DEPUTY COMMISSIONER, 3. THE INTELLIGENCE OFFICER-I, 4. THE SALES TAX OFFICER, 5. THE TAHSILDAR, Vs 1. M/S. SUPERSTAR DISTILLERIES & ... Respondent 2. KERALA STATE BEVERAGES (MANUFACTURING & For Petitioner :GOVERNMENT PLEADER For Respondent :SRI.S.M.PREM The Hon'ble MR. Justice K.S.RADHAKRISHNAN The Hon'ble MR. Justice K.THANKAPPAN Dated :28/09/2007 O R D E R K.S. RADHAKRISHNAN & K. THANKAPPAN, JJ. ------------------------------------------ R.P.NO.809 OF 2005 in W.A.NO.2408 OF 2002-A ------------------------------------------ Dated this the 28th day of September, 2007. O R D E R cl  CRL.A.NO. . 2  CRL.A.NO. . 3  Radhakrishnan, J: The learned Government Pleader submits that W.A.No.2408/2002 was wrongly posted along with W.A.No.2353/1998 and O.P.No.8079/1999. O.P.No.8079/1999 was disposed of on 9th September, 2005. The issue raised in W.A.No.2408/2002 is unconnected with the other cases. We are inclined to recall the judgment in respect of W.A.No.2408/ 2002 and re-post the same for hearing. Review petition is allowed. K.S RADHKARISHNAN JUDGE, K. THANKAPPAN, JUDGE.

State Of Kerala vs M/S. Superstar Distilleries & on 28 September, 2007

Kerala High Court

AGED» YEARS, " O IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD DATED THIS THE 3rd DAY 0}? FEBRUARY:;:"20.1:t}: BEFORE THE HON'BLE MR. JUSTICE it/;AOOJ}§GvANNATEZ;§:1§E':V"w C.P.No.54';3/20Oa'O.9Z"-._n BETWEEN: SMT.\/IDYA w/0 SHRISHAIL BIJAPURE7ff* AGED 30 YEARS, ' ' OCC:MEDICAL PRACTITION_ER'--.V .. = R/O SHIVAJI DHARMOJI :3ELAwA_DT..';»-__ . HOUSE NO.115,%_VIJ;¢.YANF;GAR; " _ GOLDEN PARK} " . I-1UBLI--580 020, " ' «_ PETITIONER (By Sri.Rv;K.Hatt§;._--v.At§t%..V) O T DR.sHR1sHA1L "i~2A.1v1A§<Ri'sH1§A BIJAPURE oec:ME'Di1c.AL..PRAcTmtjNER =1; /0 '1'fl.QR_A13, T_Q~:gAIaAG, D1.s*TRICT.,:.fa~ELGA_U_M. RESPONDENT (By S1'-1'..,_Di1f_J..<:-ST);§MtKu1kam.i,Adv. for R1) Thtisetijetition is filed under Section 24 of CPC praying to the M.C.29/2009 on the file of the Civil Judge j(S.*j.Dr_1._).5Raibag, District Belgaum and Transfer to the same to --..Civil Judge (Sr.DI1.) Hubli, by allowing this appeal, in the .irTte§:est ofjustice and equity. This petition coming on for admission, this day, the court made the following: ORDER Heard the iearned counsel for the partieisj fi.na:1ij2i i respect of the petition filed u/s 2?+'miof'«thei.i' Procedure by the wife seeking transfer ioasei'MiiC..V2€9 pending on the file of Civil Jud§"e..pb(Sr..Dn.); tithe ii i corresponding court at Hubli. 2. Learned counsel for the petiitionervii_'.sniti.mits that the reason for the traI1Sfcf.iS the petfiioneriipfapprehends threat to her 1ife~i'i"s'iie A:goesii:tfe'th'e-courtiat~Rai'oag to attend the above M.C. casei."I_ i' i 3. On the rotherihand,=1earned Counsei for the respondent» __husba_n}diisu.bmits the respondent is present before this W.co,u'rt_.in pnrsnanvce to the direction given on earlier date and th"c._re'spor;dent not given any threat to the petitioner nor i can there be any apprehension in the mind of the petitioner as :'i.vi."'*regards arg} threat to her when she attends the court at The respondent-husband who is present before the ,% w court also submits that there is no threat to the life of hiswife if she comes to the court at Raibag. 4. Having regard to the above submission mcicie " learned counsel for the respondent alsoplacinpig riiefor, my perusal an endorsement given ."*by7._'_Athie :V\.l-Q"1;I1.C5'I1: Inspector to the petitioner, it appears that the lrvespondeiit is * V Wiiiing to take his Wife back butpetitioner "has shown any positive signs in this flit}hthereiorepappears to me that the matter maybe and the trial court shall the matter to the l\/Iediatioun 5. Withxthe_ I am of the View that this petition doesiiot*require,stofibe allowed more so because the between the~t.w.o'p1aces namely Raibagh and Hubli is i.'not,iferyyi'a_rithe fir-esis very high and apart from this both the"pe'titiorierV'sjan'd respondent are medical practitioners and 'thereforezriiayvnot have any economic problem in attending the V' coui~ts--;_ H % g r 6. For the above reasons, the petition is rejected ar1d___both parties are directed to appear before the trail court on_.ti1e'«r,ia-te already fixed by the trial court and the trial . consider about sending the matter tqhMediati6r1'~.:Cent.er_fc;1"u settlement. June

Author: V.Jagannathan

Smt.Vidya W/O Shrishail ... vs Shrishail Ramakrishna Bijapure on 3 February, 2010

Karnataka High Court

JUDGMENT Kondaiah, J. 1. Two applications, viz., C. M. P. No. 8289/72 praying to condone the delay of 104 days in filing the application to set aside the judgment and decree in C. C. C. A. No. 156/68 dated 19-4-1972 and C. M. P. No. 8288/72 praying to add the petitioners therein as party respondents in C. C. C. A. No. 156/68 are preferred under Section 151, Civil Procedure Code and Order 1, Rule 10 read with Section 151, Civil Procedure Code respectively. The main application, i.e., C. M. P. No. 8288/72 would arise for decision only if the delay of 104 days in filing the set aside application is condoned. We shall, therefore, first advert to the question whether sufficient cause within the meaning of Section 5 of the Limitation Act has been shown by the petitioner for condonation of the delay. 2. The appeal preferred by the Special Deputy Collector, Land Acquisition, Industries, Hyderabad, questioning the enhancement of the market value of the acquired property from Rs. 944 /- to Rs 1,500 /- per acre, was dismissed by us on 19-4-1972. That appeal arose out of the judgment of the Lower Court in O. P. No. 362/65. The petitioners were admittedly not parties to the appeal as well as to the O. P. No. 362/65. The contention of Mr. C. Seetharamayya, counsel for the petitioners, is that his clients were parties to the proceedings before the Special Deputy Collector before whom they claimed to be the owners of 341 acres of land now acquired, but the Special Deputy Collector did not accept their claim and the subject-matter of the award was referred to Civil Court in four O. Ps. Viz., O. P. Nos. 240, 248, 362 and 234 of 1965. The petitioners herein were parties to the O. P. Nos. 240 and 248/65. As they were not made parties to O. P. No. 362/65 and another, they were not aware of the proceedings in the lower Court as well as in this Court. They came to know only recently about the dismissal of the appeal and have filed this application. 3. It is well settled that the party who seeks to have the delay in filing an appeal or application beyond the period of limitation has to satisfactorily explain every day's delay. See Ramlal v. Rewa Coalfields Ltd., . The affidavit filed by the petitioners in support of their claim for condonation of the delay does not disclose and valid or justifiable grounds. The only ground stated by the counsel is the award being split up into four O.Ps. According to the petitioners, they claimed to be owners of 341 acres now acquired and in respect of which a compensation of nearly 6 lakhs rupees has been awarded. The conduct of the petitioners in sleeping over for a period of 7 years is really unexplainable. A party who is interested in his property or his rights has to be diligent and careful in protecting and safeguarding the same by taking appropriate proceedings as and when required. If the petitioners were realy interested in getting themselves added as parties to C. C. C. A. No. 156/68 or prompt steps. On the facts and in the circumstances, we have no hesitation to hold that they were negligent in not taking diligent and proper steps in the matter. Mr. Seetharamayya admits that this is an exceptional case and normally no Court will condone the delay in the circumstances of this case. We do not feel that the petitioners are entitled to have the inordinate delay of 104 days condoned in this application. We may add that the real delay in this case is not 104 days but seven years as the grievances of the petitioners is not in respect of our decision in C.C.C.A.No. 156/68 but against the splitting up of the award passed by the Special Deputy Collector in the year 1965 and referring the same to the Civil Court in 4 O.Ps. We are unable to accede to the submission of Mr. Seetharamayya, which has been very vehemently made, that his clients did not know about the filing of O.P.No. 362/65 and its disposal and also the preferring of appeal by the Special Deputy Collector, which was dismissed by us on 19-4-1972, till recently. It is stated in paragraph 7 of the affidavit filed in C.M.P. No. 8288/77 that the petitioners and eight others are parties in respect of title and enhancement in O.P.Nos. 240 and 248/1965. The petitioners as well as their counsel must be fully aware of the scope and application of O.P. Nos.240 and 248/65 to which they are admittedly parties. If those O.Ps. are not comprehensive enough, the petitioners and their counsel could have easily known the present controversy in respect of which they feel so much aggrieved. The petitioners alleged that their counsel never informed the stage of the O.Ps. in the Civil Court till notices were served on them in O.S.No. 97/71 filed by one Smt. Khulsumunisa Begum claiming her share in the Matruka property of late Shamohamud Doul. In paragraph 7, it is further stated that;- "In the said suit reference was made to the above O.Ps. and as we instructed our lawyer to look into the matter would be looked into and care would be taken. In 1972 January we suspected something in the proceedings pending in the Civil Court in respect of O.Ps. 240 and 248 of 1965 and we requested another advocate to peruse the said filed and to our surprise we found that we were set ex parte and the amount that was awarded would have been given to some others had we not taken immediate steps. We engaged another lawyer and requested the Hon'ble Court to give us permission so that matter could be contested." 4. Mr. Seetharamayya states that the mentioning of O.P.No. 240 and 248/65 is a mistake for O.P.Nos. 362 and 234 of 1965. There appears to be considerable force in that submission as otherwise that sentence does not make any sense. Mr. Seetharamayya has realised that mistake only now and has brought it to our notice. As pointed out earlier, the petitioners, if they were diligent and had taken sufficient care and interest to protect their interests, would have certainly discovered their mistake, if any, even in the year 1965 and taken appropriate steps to safeguard their interests. If their counsel did not intimate the stage of the O.Ps. and if they suspected something in the proceedings, obviously referring to the counsel, nothing prevented them from taking appropriate steps in that regard. The conduct of the petitioners in sleeping over for a period of seven years would clearly show that they are not only not diligent and careful but negligent and that they never bothered to know what happened to their cases. The petitioners do not deserve any sympathy as no ordinary prudent and reasonable man would have conducted himself in such a manner and alleged against their own counsel that he did not inform them. It is the duty of the party who has engaged a counsel to go to the counsel and even to the Court and find out at what stage his case is and he cannot blame the counsel without any proper justification, for any adverse result in the case. In the circumstances, we are satisfied that there is absolutely no justification for the petitioners to approach this Court at this stage with a request to condone the delay in filing the application to set aside the judgment and decree passed by us on 19-4-1972 in the appeal. C.M.P.No. 8289/72 is, therefore dismissed with costs. 5. In view of the dismissal of the application C.M.P.No. 8289/72, C.M.P.No. 8288/72 also has to be dismissed. That apart, we may add that even on merits, assuming that the delay is condoned, there is no valid or justifiable ground to add the petitioners herein as party respondents to C.C.C.A. No. 156/68 disposed of by us on 19-4-1972. The application is filed under O,1, Rule 10 read with Section 151, Civil Procedure Code. The scope and application of Order 1, Rule 10, Civil Procedure Code is very well settled. The very intendment and purpose of Order 1, rule 10 (2), Civil Procedure Code is to add parties, necessary or and completely adjudicate all the questions that are involved in a case. The use of the words "at any stage of the proceedings" in sub-rule (2) of Rule 10 in Order 1 manifests that the power vested in the court under that provision can be exercised only when the proceedings before it are alive and still pending. In other words, the application of Order 1, Rule 10 (2) should be confined only to cases where any proceedings are pending before the Court. The very purpose and object of this provision being to make any party a defendant or respondent, or plaintiff or appellant in a proceeding, in order to enable the Court to make an effective and complete adjudication of the questions involved in the case, when once the case is over, this provision cannot be made use of by any party. This view of ours gains support from a decision of the madras High Court in Lingammal v. China Venkatammal, (1883) ILR 6 Mad 227 at page 228 relied upon by the petitioner's counsel in support of his plea. Therein, the junior widow of a Hindu was added as a party in execution of a decree obtained by the senior widow against a third party debtor of her husband. Turner, C.J., speaking for the Court, observed thus even at the outset:- "It is unusual and inconvenient to allow a per son, who might have applied before decree, to be joined as co-plaintiff after decree, even if it be lawful to do so, where no interest has devolved and no interest has been created since the institution of proceedings. The only section of the Code on which the learned counsel for the respondent can rely is the 32nd, which points to the joinder of parties whose presence may be necessary for the adjudication of questions raised in the suit. Here the period of adjudication has passed. Nevertheless, we are not prepared to say that the Subordinate judge had not a discretionary power under Section 32 at any stage of the suit. And, although the widows are still engaged in litigation, prima facie they have an equal right to collect the debts." 6. Therein, the junior widow, who was a party, was equally entitled along with the senior widow to have the fruits of the decree obtained against the judgment-debtor of their husband. Further, the E.P. was pending before the Court which added the junior widow as party to the proceedings, The other decision relied upon by Mr. Seetharamayya is that of the Judicial Committee in Raghunath Das v. Sunder Das Khetri, AIR 1914 PC 129 at P. 131. The point in controversy was not decided by the Privy Council in that case, but it was only observed thus:- "It was suggested in argument that he might have been made a party to the proceedings either under Section 32 or under Section 372 of the Code (Civil Procedure Code, 1882) but even if these sections are applicable after final decree as to which there is considerable doubt.....no proceedings seem to have been taken thereunder." 7. The above observations of the judicial Committee are, on the other hand, against the view canvassed by the petitioners herein. In the case on had, the appeal was already disposed of by us on 19-4-1972. Admittedly there is no proceeding now pending before us. It is only in cases or proceedings before us that the question of adding any party would arise, apart from the desirability or propriety of doing the same. In this case, we must hold that the provisions of Order 1, Rule 10 (2), Civil Procedure Code do not come to the aid of the petitioners to maintain this application in view of the admitted fact that no appeal or proceedings is pending now before us. This application, therefore, must be dismissed even on merits. 8. The only other provision of law under which this application can be filed, is Section 151 of the Code of Civil Procedure 1908. It is well settled that the inherent powers of the Court cannot be exercised in any case if there is a specific provision in the Code providing for the remedy. Even otherwise, Section 151, Civil Procedure Code can be invoked only in cases where there is abuse of process of the Court, or to secure the ends of justice. We do not find any justification in this application to invoke our inherent jurisdiction for the relief sought to be granted to the petitioner. Judged from any angle, this application (C.M.P.No. 8288/72) must be and is hereby dismissed with costs. 9. Before we part with this case, we may add that any observations made by us in this order should not be construed as our expressing any opinion on the merits relating to the rights, if any, of the petitioners herein. It is open to them to agitate for their rights and safeguard the same, in an appropriate proceeding. 10. Order accordingly.

Author: Kondaiah

Ali Khan And Ors. vs Special Deputy Collector Land ... on 6 September, 1972

Andhra High Court