Datasets:

Ayansk11

/

Chatkanoon

like 0

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 14583 of 2009(P) 1. C.SREENIVASAN, ASSISTANT ENGINEER, ... Petitioner Vs 1. STATE OF KERALA REP. BY THE SECRETARY, ... Respondent 2. THE CHIEF ENGINEER, LOCAL SELF For Petitioner :SRI.KALEESWARAM RAJ For Respondent : No Appearance The Hon'ble MR. Justice P.N.RAVINDRAN Dated :28/05/2009 O R D E R P.N.RAVINDRAN, J. ----------------------------- W.P(C) No. 14583 of 2009-P ------------------------------ Dated this the 28th day of May, 2009. J U D G M E N T P.N.RAVINDRAN ab JUDGE //True Copy//  Heard Sri.Kaleeswaram Raj, the learned counsel appearing for the petitioner and Sri.Anu Sivaraman, the learned Government Pleader appearing for the respondents. 2. The petitioner entered service as First Grade Draftsman in the Irrigation Department on 6.12.1995. At the time of entry in service he possessed a Diploma in Engineering. After entry in service, he passed Section A and B Examinations of the Institution of Engineers (India) in Civil Engineering held in December 2001. The said qualification is treated as equivalent to degree in Civil Engineering. According to the petitioner, the acquisition of the said qualification was recorded in his service book. The petitioner was thereafter promoted as Assistant Engineer in 2005 as per order dated 22.7.2005. When the Engineering cadre for the Local Self Government Department was formed, the petitioner opted for the Local Self Government Department. After exercising the option, he requested the Chief Engineer, Local Self Government Department to include him in the list of Graduate Assistant Engineers. That request was granted by Ext.P3 order dated 7.11.2008. However thereafter, the Chief Engineer cancelled it by Ext.P4 order dated 27.1.2009. The petitioner has thereupon moved the Government requesting the Government to issue necessary directions to the Chief  W.P(C) No. 14583 of 2009-P 2 Engineer to include him in the seniority list of Graduate Assistant Engineers. In this writ petition, the petitioner challenges Ext.P4 and seeks a writ in the nature of mandamus commanding the respondents to include him in the seniority list of Graduate Assistant Engineers. 3. Ext.P4, by which Ext.P3 order was cancelled only states that petitioner's request cannot be presently entertained and that after the views of the Government are ascertained the question can be reconsidered. According to the Chief Engineer, the petitioner's request could have been granted only in consultation with the Government and the Government's concurrence. Since the petitioner has moved Ext.P7 representation in that regard, I dispose of this writ petition with a direction to the Government to consider the request made by the petitioner in Ext.P7 in the light of the special rules and pass orders thereon expeditiously and in any event within six months from the date on which the petitioner produces a certified copy of this judgment along with a copy of this writ petition before the Secretary to Government, Local Self Government Department. The Secretary to Government shall also afford the petitioner a reasonable opportunity of being heard. The Government shall after orders are passed as directed above, communicate a copy thereof to the petitioner. The writ petition is disposed of as above. Sd/-

C.Sreenivasan vs State Of Kerala Rep. By The ... on 28 May, 2009

Kerala High Court

Security Code Check for Accessing Judgment/Order Document   eLegalix - Allahabad High Court Judgment Information System Welcome to eLegalix, Judgment Information System for Allahabad High Court and Its Bench at Lucknow. Disclaimer Please enter the 4-digit numerical security code below to download Judgment/Order Document   Security Code:    GO   Visit http://elegalix.allahabadhighcourt.in/elegalix/StartWebSearch.do for more Judgments/Orders delivered at Allahabad High Court and Its Bench at Lucknow. Disclaimer   System designed and developed at Computer Centre, High Court, Allahabad.

Smt. Subhawati & Another vs State Of U.P. & Others on 23 August, 2010

Allahabad High Court

[Section 3] [Complete Act]

Central Government Act

Gujarat High Court Case Information System Print SCA/7538/2008 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 7538 of 2008 ========================================================= KANSIBHAI M. CHAUDHARY - Petitioner(s) Versus STATE OF GUJARAT & 1 - Respondent(s) ========================================================= Appearance : MR MB GANDHI for Petitioner(s) : 1,MR CHINMAY M GANDHI for Petitioner(s) : 1, MR VIPUL MISTRY AGP for Respondent(s) : 1, MR PREMAL R JOSHI for Respondent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE ANANT S. DAVE Date : 10/07/2008 ORAL ORDER Heard learned counsel for the parties. Rule. (ANANT S. DAVE, J.) *pvv     Top

Author: Anant S. Dave,&Nbsp;

Kansibhai vs State on 10 July, 2008

Gujarat High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 24034 of 2009(Y) 1. U.P.ANILKUMAR, PROPRIETOR, ... Petitioner Vs 1. THE SALES TAX OFFICER, ANCHAL, ... Respondent 2. THE COMMISSIONER OF COMMERCIAL TAXES 3. THE SALES TAX OFFICER, NEYYATTINKARA 4. A.J.THOMAS, PROPRIETOR, For Petitioner :SRI.V.P.SUKUMAR For Respondent : No Appearance The Hon'ble MR. Justice C.K.ABDUL REHIM Dated :08/09/2009 O R D E R C.K.ABDUL REHIM, J. ------------------------------ W.P.(C)No.24034 OF 2009 ------------------------------ Dated this the 8th day of September, 2009 J U D G M E N T ---------------------- 1. The prayer in this writ petition is for a direction to the 3rd respondent to issue required number of Form 25 Declarations to the 4th respondent, for issuing such declarations to the petitioner with respect to purchases of Rubber effected from the petitioner, which will reflect in the accounts of the 4th respondent. The petitioner had approached this Court on an earlier occasion which resulted in Ext.P8 Judgment. According to the petitioner Form 25 declarations were denied to the 4th respondent for the reason that the 4th respondent is in arrears of payment of Sales Tax. But the petitioner placed reliance on Ext.P7 Judgment of this Court with respect to another assessee, wherein this Court directed issuance of Form 25 Declarations even in a case where registration is cancelled, with respect to transactions pertaining to the period prior to cancellation. In Ext.P8 Judgment this Court directed the 3rd respondent to verify the assessment records of the 4th respondent for the year 2003-04 and to issue Form 25 declarations, if found eligible, in  W.P.(C).24034/09-Y 2 order to cover purchases effected from the petitioner, which are accounted by the 4th respondent, within a period of one month. But in Ext.P9 notice the 4th respondent was intimated that the 3rd respondent is not in a position to issue Form 25 Declarations since the connected records for the year 2003-04 could not be verified because they are in the custody of the Detective Inspector of CBCID, Narcotic and Economic Offence Cell, Thiruvananthapuram in connection with an investigation. Going by Ext.P9 notice it is revealed that the said notice is issued without taking into consideration of the directions contained in Ext.P8 Judgment. In the meanwhile steps are being persuaded by the assessing authority concerned to finalise assessment of the petitioner for the years 2003-04 and 2004-05 and Ext.P11 notice is issued calling for production of Books of accounts. 2. According to the petitioner eventhough the Books of Accounts of the 4th respondent pertaining to the year 2003-04 is in the custody of the CBCID Inspector, the Purchase Register for the relevant period is available which is a document verified and countersigned by the then assessing authority. Copy of the Purchase Register is produced as Ext.P10. Claim of the petitioner is that the genuineness of transaction between the petitioner and the 4th respondent during the relevant period is discernible from Ext.P10 and Form 25 Declarations can be  W.P.(C).24034/09-Y 3 issued based on those transactions revealed from Ext.P10 Purchase Register. 3. However, I notice that Ext.P9 notice was issued without taking into consideration of the directions contained in Ext.P8 Judgment. Further I notice that the 3rd respondent could not deny Form 25 Declarations merely because the assessment records are in the custody of some other agency, if the authority is convinced through other records about genuineness of the transactions. As stated in Ext.P8 Judgment the fact that the 4th respondent is in arrears of sales tax, is also not a tenable reason to deny Form 25 Declarations. Since Purchase Register is available and since it is a document countersigned by the Assessing Authority the question regarding eligibility of Form 25 Declarations can be decided based on the Purchase Register and on verifying the genuineness of the transactions. Further if necessary the authority can arrange verification, or taking of photocopies of the documents in the custody of the CBCID. At any rate the benefits which would have been available to the petitioner could not be denied, for no reason of themself, merely because some of the records pertaining to Respondent No.4 is not available. 4. Under the above mentioned circumstances the writ petition is disposed of quashing Ext.P9. The 3rd respondent is  W.P.(C).24034/09-Y 4 directed to reconsider the matter and to issue Form 25 Declarations to the 4th respondent, with respect to purchases effected from the petitioner, if he is convinced of the genuineness of such transactions after verification of Purchase Register of the 4th respondent for the year 2003-04, Books of accounts of the petitioner, and if necessary any further records available in the custody of the CBCID authorities. A final decision in this regard shall be taken as early as possible, at any rate within a period of three weeks from the date of receipt of a copy of this Judgement C.K.ABDUL REHIM, JUDGE. okb 

U.P.Anilkumar vs The Sales Tax Officer on 8 September, 2009

Kerala High Court

Pending in the Courts at Bombay 5396/9823/73 - in Small Causes Court at Bombay 5397/9824/73 - in Small Causes Court at Bombay 5398/9825/73 - in Small Causes Court at Bombay R/528/74 - in Court at Thana. Mr. K. P. Narayanan - Criminal Complaint No. 97/74 at Quilon Magistrate Court. Mr. Augusthy - Criminal Complaint in District Naderkkul Magistrate's Court at Tellicherry." JUDGMENT Aggarwal, J. 1. By this judge's summons, the State of Tamil Nadu (hereinafter referred to as "the State") seeks to vacate the ex parte order dated 11th October, 1974, and as modified by an order dated 14th October, 1974. The ex parte orders were obtained under section 391(6) of the Companies Act, 1956, by Uma Investments Private Ltd. (hereinafter referred to as "the company") in an application filed by it under section 391 for sanction of a scheme of compromise with certain classes of creditors. 2. The background of the case is that the company was incorporated on 13th January, 1965. The registered office of the company is in Bombay. The authorised capital of the company is Rs. 5,00,000 divided into 5,000 equity shares of Rs. 100 each and the subscribed and paid up capital is Rs. 1,00,000 divided into 1,000 equity shares of Rs. 100 each. From its inception the company carries on chit business. According to the company from the month of October, 1973, it faced financial difficulties and was unable to meet its requirements and particularly the amounts payable to the non-prized members at the termination of the chits. Several reasons are given. One of them is that in the States of Tamil Nadu and Kerala misleading and incorrect news items appeared. The newspaper, Dina Thanti, published in Tamil Nadu, circulated false reports. Another cause was that the company's discharged employees had spread imaginary and false stories among the public. The company's managing director, Acharath Vasu Appukutta Gupta, was illegally detained for two days by the police of Madras in connection with a subscriber's complaint to the police regarding a cheque for Rs. 50,000 towards his dues. For all these reasons, the members of the chits started demanding payment of their dues. Many of them took legal proceedings against the company and obtained orders of attachment before judgment. In these circumstances, the company's business and its liquid resources were seriously affected. The daily reports from the administrative office at Madras showed that every day many proceedings were adopted against the company and attachments before judgment were obtained in many such proceedings. 3. In these circumstances, the company has proposed a scheme of arrangement between itself and three classes of creditors, namely, (1) creditors who were subscribers to terminated cit groups, (2) creditors who are the subscribers of the existing chit groups, and (3) other general creditors of the company. The said scheme, it appears, is restricted to the creditors in the States of Tamil Nadu, Karnataka, Kerala, Andhra Pradesh and Maharashtra, excluding the States of Madhya Pradesh and West Bengal and Nagpur City where the company any intended to remain a going company. 4. The proposal of the company for compromise and arrangement with three classes of creditors is the subject-matter of Company Application No. 142 of 1974. This application was filed on 11th October, 1974. Directions under rule 69 of the Companies (Court) Rules, 1959, have been obtained to call, hold and conduct meetings. Shortly stated, so far the result of the meetings held under the chairmanship of an officer of this court is not known as the report is not ready on account of some difficulties encountered by the chairman. What is the fate of the scheme cannot be foretold. Whether the court will sanction the scheme or not is also a thing of the distant future. 5. On 11th October, 1974, the company took out a judge's summons (Company Application No. 143 of 1974) praying that pending the hearing and final disposal of Company Application No. 142 of 1974, the continuation of proceedings pending in various courts, a list whereof is mentioned in the schedule thereto, and commencement or continuance of any other proceedings against the company, its officers and its properties, whether civil or criminal, whether by the creditors and/or chit subscribers or by any one else, be stayed. In support of this application the company used the affidavit of its said managing director affirmed on 10th October, 1974. After referring to the steps taken by the depends in keeping up the fair name of the company, he stated that the application was filed in order to get interim protection from further harassment. The company stated that it "be given immediate protection and should be relieved from the onerous task of gathering particulars of the various suits and complaints filed against the company." 6. This court (Bhatt, J.) stayed the commencement or continuance of all civil and criminal proceedings against the company and its officers on the company giving an undertaking not to deal with or dispose of any of its assets either movable or immovable or any other property of the company without the previous sanction of this court save and except the payment of rent, taxes of any nature whatsoever and salaries of the employees of the company. On the application of the company, the said order was modified on 14th October, 1974, whereunder the expenses in connection with the application under section 391 of the Companies Act in Company Applications Nos. 142 of 1974 and 143 of 1974 and the expenses in connection with the chits operated in Madhya Pradesh, West Bengal and Nagpur City, limited to the actual recoveries made from chits being so run there, were further exempted from the said undertaking. 7. These orders communicated to the State in the month of October, 1974, by means of a letter. It appears that along with the intimation, photostat copies of orders were forwarded. 8. Mr. Khambatta, the learned counsel for the State, contended that the orders passed are within the jurisdiction of this court under section 391(6) of the Companies Act, and even assuming that the facts as pleaded do invoke the section, criminal proceedings which have been filed or proposed to be filed cannot be stayed. Section 391(6), according to Mr. Khambatta, speaks of suits or proceedings against the company, and this section does not cover suits or proceedings filed against the officers of the company. 9. On the other hand, Mr. Mehta, the learned counsel for the company, placed reliance on rules 71 and 72 of the Companies (Court) Rules, 1959, and submitted that rule 71 contemplates granting of an ex parte order, and under rule 72 it is only a person aggrieved by the order passed under rule 71 who can move the court to vacate or vary such order. He submitted that the State cannot seek to vacate the whole of the order but only to the extent it is affected. The State cannot be said to be a person aggrieved by the suit filed by others against the company. He also submitted that there is nothing in section 391(6) to restrict the power of the court to stay criminal proceedings. The word "proceedings" is a word of wide import. Given a normal and natural meaning, the word "proceedings" would cover proceedings of civil and criminal character. In his submission, the power to stay proceedings is to facilitate the holding of the meetings, so that the company should not be made to run from one court to another or to pay a fine here or to pay a fine there. It is the policy of law that, normally, all proceedings should be stayed, so that the same do not influence the consideration of the question of compromise. The very fact that rule 71 makes provision for an ex parte order goes to show the policy of law underlying these provisions. He further urged that suits or proceedings would also embarrass the directors and officers of the company because all actions were being taken by them on behalf of the company. He submitted that the interpretation suggested by him is in consonance with the objection of section 391; otherwise, pressure could be brought on the officers of the company to act in a particular manner. This will amount to preferential treatment to some of the creditors. Fair and equal distribution would be affected. No creditor is to be preferred at the expense of the general body of the creditors. 10. In order to appreciate the rival submissions, one has to look at the relevant provisions of sub-section (6) of section 391. These are as follows : "391. Power to compromise or make arrangements with creditors and members. - ...... (6) The court may, at any time after an application has been made to it under this section, stay the commencement or continuation of any suit or proceeding against the company on such terms as the court thinks fit, until the application is finally disposed of ..." 11. The language of this sub-section is clear and unambiguous. The main controversy is focused on the word "proceedings". According to Mr. Khambatta, the word "proceedings" cannot cover criminal proceedings against the company and its officers. It could not have been the intention of the legislature to stay the commencement or continuation of criminal proceedings. The company and its officers must face the consequences of their illegal acts. There seems to be considerable force in these arguments. If the intention of the legislature had been to stay the commencement or continuation of criminal proceedings, it would have specifically said so. It is difficult to accept Mr. Mehta's line of interpretation indicated above that the word "proceedings" embraces criminal proceedings. 12. There is another angle from which the provisions of section 391 can be looked at in order to find out whether it is within the scope and object of the section to cover criminal proceedings. In the present application under section 391, there are three classes of creditors, namely, (1) creditors who were the subscribers of terminated chit group, (2) creditors who are the subscribers of existing group, and (3) other creditors of the company. A reference to these classes shows that all of them are creditors. The question then arises as to what meaning is to be given to the word "creditor". "Creditor" would be a person having a pecuniary claim against the company, whether actual or contingent. If the claims of the creditors are of a pecuniary character or founded on money considerations, can it then be said that sub-section (6) of section 391 is extended to cover proceedings other than proceedings which involve pecuniary claims or claims based on money considerations ? It is in respect of these classes of creditors that proposal is put forward by the company for a compromise or arrangement. Nothing has been pointed out to me that the company's proposal refers to or covers any criminal proceedings against the company and its officers. The provisions of sub-sections (1) and (2) of section 391 lay down that if any proposal is put forth by a company or a creditor or class of creditors or a member or class of members, the same is required to be considered under the directions of the court by calling, holding and conducting a meeting or meetings, and if approved by a majority in number representing three-fourths in value of the creditors, or class of creditors, or members, or class of members, and agreed to any compromise or arrangement, the compromise or arrangement shall, if sanctioned by the court, be binding on all concerned. The compromises or arrangements are about civil liabilities where a creditor will accept a lesser payment or receive less on distribution or grant time or waive interest and work out other kindred things. It is impossible to take the view that section 391 is meant for freezing criminal proceedings which may be instituted either by a creditor or a member of a company or by the State either against the company or its officers. If, the officers of the company are involved in offences lime cheating, criminal breach of trust, misappropriation, forgery, using a forged document and falsification of accounts, in connection with the business of the company, can it be said that prosecutions can be stayed by the aid of sub-section (6) of section 391 ? Again, if the officers of the company were to be held responsible for contravention and infringement of the Income-tax Act of Foreign Exchange Control Act, can a company by putting a proposal before the court under section 391 seek the protection of the court under sub-section (6) of section 391 and stay the pending prosecutions or prevent the authorities under the Income-tax Act or the Enforcement Directorate from launching prosecutions ? Again, section 5 of the Companies Act, 1956, provides that for the purpose of any provision of this Act, an "officer who is in default" shall be liable to any punishment or penalty, whether by way of imprisonment, fine or otherwise. Can sub-section (6) of section 391 be made use of by a company (who is liable to be wound up) by coming forward with some sort of proposal ? In my opinion, criminal proceedings cannot be held over or avoided or criminal process evaded by resorting to a scheme of compromise or arrangement under section 391. Section 391 does not provide an umbrella to a company and its directors and officers for a thing which is an offence or an infringement and violation of any law, rule and regulation punishable by imprisonment or fine or both. Offenders cannot be given refuge in this section, nor can it be a shield for delinquent directors for their misdeeds. This is not the scheme of section 391 or the policy of law in the manner urged by Mr. Mehta. 13. Mr. Khambatta drew my attention to the Madras Chit Funds Act, 1961, and by reference to the affidavit of Shri A. S. Ahluwalia, Directors of Chits, Government of Tamil Nadu, pointed out that in respect of about 481 chits of the aggregate value of Rs. 20,54,500 run by the company in the various parts of the State, complaints numbering about 267 are pending and about 3,079 complaints cannot be filed in view of the stay order granted by this court. These complaints arise in connection with the infringement of sections 11, 14, 16 and 56(2)(c) of the said Act. Section 56 provides penalties for contravening the provisions of the said sections. 14. Mr. Mehta argued that the pending and intended prosecutions under the Madras Chit Funds Act, 1961, are of a coercive character, inasmuch as the fair object of section 391 to equally distribute the assets of the company among the creditors would be defeated and the scheme would be affected. There is no merit in this argument. The scheme is put forth for compromise and not to save the company or its officers from facing prosecutions for offences committed in the course of the business of the company. The provisions of section 391(6) do not apply to criminal proceedings against a company. The proceedings referred to in this sub-section are meant to be a civil nature. The character of the proceedings should be of pecuniary nature involving money considerations between the company and its creditors or members having a nexus or bearing with the proposal for compromise or arrangement, set afoot for consideration of the creditors or members as provided in sub-section (2) of section 391. The company and its officers are open to prosecution. Criminal proceedings can be commenced or continued notwithstanding the fact that a scheme for compromise or arrangement has been initiated under section 391. In my judgment, the provisions of sub-section (6) of section 391 are not meant to freeze the commencement or continuation of criminal proceedings against the company and its officers. 15. It may be mentioned that both sides had taken somewhat extreme stands. Mr. Khambatta argued in the first instance that the State of Tamil Nadu is entitled to have the whole of the order vacated but, in the course of his arguments, submitted that the State seeks variation to the extent the order stays criminal proceedings. Mr. Mehta had argued that the State was not an aggrieved party within the meaning of rule 72 and, therefore, could not move the court for vacating or varying the order, but later stated that the State could do so to the extent it is affected. 16. Mr. Khambatta laid emphasis that the company has not given any particulars of the civil or criminal cases pending against the company and its officers. There is considerable force in this complaint. In order to appreciate the point, it is necessary to look at the following schedule which sets forth the pending cases as on 10th October, 1974 : SCHEDULE Pending in the Courts at Madras Case No. 2262/74 - Mr. J. Sukumar (MD/6/24) Case No. 167/74 - Smt. Prasanna Kallat (MA-1/20) Case No. 3938/74 - Mr. D. Sambandhan (MA-13/17) Case No. 3411/74 - Mr. P. V. Subbiah (MD-7/10) Case No. 2717/74 - Mr. N. Ganapathy (MC-2/24) Case No. 3410/74 - Mr. A. Ranganathan (MC-2/35) Case No. 3811/74 - Mr. Mohammed Yakoob (MC-3/32) Case No. 4531/74 - Mr. D. Chowdaffer (MC-3/26) Case No. - Rajeshkumar & Co. (MC-4/25) - Mr. Rajendra, Royapettah Branch Mr. V. Sankaran - T'Nagar Branch Mr. V. Balasubramanian - Parrys Branch Mr. Bashyam - Criminal complaint at Coimbatore Kerala - 50 cases.17. It appears that the company, in its anxiety to arm itself with a general order covering all cases, has not given full information and particulars. The affidavit of the company's managing director, Shri Gupta, in support of the application shows that the company was "faced with a number of attachments, lot of properties of the company were lying with courts in pursuance of the orders of attachment" and if the company were to be taken into liquidation, it will be a stupendous task for a liquidator to make an inventory of the assets. He further stated that he was filing the application (under rule 71) in order to get interim protection from further harassment, and then goes on to say that it is impossible for him to give details and particulars of various suits and other proceedings which are filed against the company and that whatever particulars he had been able to procure, he had given, namely, the said schedule. He further stated that he should be relieved from the onerous task of gathering particulars of the various suits and complaints. The same deponent stated in the same breath that several branches have been closed on account of attachment before judgment and several complaints are also filed against the company and its officers. Even in his affidavit in reply to the present summons, filed after an interval of over 14 months, Shri Gupta maintains that whatever information was available had been furnished. The Director of Chits, Government of Tamil Nadu, in his affidavit in support of the present summons, has complained about the particulars. 18. Now, it is the case of the company that it had several branches in the State of Tamil Nadu, and attachments before judgment have been levied on its properties. The records of the company are not said to be untraceable or not under the control of the company. Shri Gupta specifically speaks of complaints filed against the company and its officers in the State of Tamil Nadu, Karnataka and Kerala. In these circumstances, it is impossible to believe that the company and the dependent, namely, the managing director of the company, would not be aware of the courts in which civil and criminal cases are pending, the names of the plaintiffs or the complainants, and the nature of the civil and criminal proceedings. The fact remains that the company has transmitted the orders of this court to various parties including the State of Tamil Nadu in order to put the civil and criminal cases on the dormant lists. Again, a reference to the schedule shows that 50 cases are said to be pending in Kerala. Now, if 50 cases are pending in Kerala, surely the managing director of the company must have counted the number of these cases before stating on oath that 50 cases are pending in the State of Kerala. Some names of the parties are given without disclosing whether the cases are of a civil nature or of a criminal character. Except in the cases of K. P. Narayanan and Augusthy Naderkkul, it can be said that the schedule is completely devoid of proper particulars. Mr. Mehta by reference to the schedule tried to explain one item. In Case No. 2262/74, the name of J. Sukumar (MD/6/24) is given. Mr. Mehta says that "MD/6" represents the series of the chit fund and the number "24" shows the book number. Now, if the dependent could know that J. Sukumar was a member of MD/6 chit fund, having book No. 24, surely if he was so minded, he could have given the particulars of Case No. 2262/74, whether J. Sukumar has filed a suit for recovery of his alleged dues and/or also obtained attachment before judgment or the case relates to a false criminal complaint filed against the officers of the company. It seems that for some ulterior motive, the full particulars have been kept back from the court. 19. Mr. Mehta strenuously urged that the purpose of the present application of the State of Tamil Nadu is mala fide. He contended that the Commissioner of Police of Madras has been vindictive in this case. For this purpose he referred to the various passages from the affidavit of the managing director, Shri Gupta, affirmed on 10th October, 1974, and the other affidavits on record. It was argued that the report which appeared in the Dina Thanti newspaper of Tamil Nadu was inspired by the police. Shri Gupta was detained for two days in the office of the Commissioner of Police and treated in an impolite manner. Shri Gupta had to obtain anticipatory bail as he apprehended further arrests. One subscriber had complained to the police at Madras that the company had issued to him a cheque for Rs. 50,000 towards his dues, but it was dishonoured and the case was treated as one of cheating. Inspector of police, Mr. Agustain, had interrogated Gupta. According to Gupta, the person behind the case was the Assistant Commissioner of Police, Jayaraman, whose wife as a prize member was a defaulter of the company, and the company had insisted on payment by her. In the affidavit in reply to the present summons, Gupta says that the Commissioner of Police, Tamil Nadu, was the main cause of the downfall of the company and that the present summons are taken out to satisfy his vendetta. Prima facie, there is no merit in these allegations. The company itself has referred to several other reasons leading to the closure of its branches in the States of Karnataka and Kerala, apart from Tamil Nadu. The company also blames its own employees for spreading false and imaginary rumours. It also attaches responsibility to its members for running the company's business. It is not only the State of Tamil Nadu where civil and criminal litigation is brewing against the company and its officers but in several other States. The Director of Chit Funds has not dealt with these allegations, but on that account I cannot accept the allegations as true on the facts of the present case. I am satisfied that the application is legitimate. 20. Another contention of Mr. Mehta was that there is undue delay in taking out the present summons and, therefore, the same should be dismissed. There is no doubt that there is delay in taking out the present summons. Having regard to the provisions of rules 71 and 72 of the Companies (Court) Rules, 1959, which provide for an ex parte order and for vacating or varying the same by an aggrieved person, it is clear that once an ex parte order is passed, it does not come for confirmation before the court and remains on the file as an ex parte order until an aggrieved person under rule 72 comes forward for vacating or varying the same. An ex parte order can remain ex parte until the scheme of compromise or arrangement set in motion under section 391 comes to an end either successfully or unsuccessfully. There is thus no time fixed for vacating or varying the ex parte order. In the present case, the State desires to continue the cases pending under the Madras Chit Funds Act and wants to commence further proceedings under the said Act. In my opinion, the delay in the present case is not so gross and glaring as to refuse the present application. The justice of the case requires that the delay should not come in the way of the court in granting the application. Moreover, I have taken the view that section 391(6) does not cover criminal proceedings. The ban imposed by the order must be lifted against public and private prosecutions. The State is always vitally interested in the administration of law and justice, so that the offenders are brought to book and, if found guilty, adequately punished. 21. In this view of the matter, I partly vacate the order dated 11th October, 1974, as further modified by the order dated 14th October, 1974, in the following manner : "The State of Tamil Nadu shall be at liberty to commence or continue criminal proceedings against the company and its officers either under the Madras Chit Funds Act, 1961, or under any other law of the land. The stay granted by this court by its previous orders staying the commencement or continuation of criminal proceedings in the State of Tamil Nadu shall stand vacated forthwith and both the State and private parties including the creditors and members of the company shall be free to continue criminal proceedings against the company and its officers already pending in the courts within the State of Tamil Nadu or commence criminal proceedings against them." 22. The company is directed to transmit within 15 days from to-day, this order to all courts and parties to whomsoever the company has communicated the previous ex parte orders dated 10th October, 1974, and 14th October, 1974, within the State of Tamil Nadu. Companies of such communications to be filed in the office by the attorneys of the company. 23. Order accordingly. The company to pay to the applicants costs of this judge's summons.

Author: Aggarwal

Uma Investments Pvt. Ltd. vs Unknown on 23 January, 1976

Bombay High Court

Gujarat High Court Case Information System Print CR.MA/5219/2010 2/ 2 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 5219 of 2010 In CRIMINAL APPEAL No. 2267 of 2006 ========================================================= SHAILESH CHANDUBHAI - Applicant(s) Versus STATE OF GUJARAT & 1 - Respondent(s) ========================================================= Appearance : THROUGH JAIL for Applicant(s) : 1, MR LB DABHI, APP for Respondent(s) : 1, None for Respondent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL and HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 16/06/2010 ORAL ORDER (Jayant Patel, J.) 16.6.2010 (Z. K. Saiyed, J.) vinod     Top (Per : HONOURABLE MR.JUSTICE JAYANT PATEL) The applicant-convict, through jail, has preferred the present application for temporary bail on the ground for making arrangement for treatment of the mother. It appears that there is no specific sickness reported, nor is there any unavoidable circumstances demonstrated. Hence, it will not be a case to release the applicant on temporary bail on such a vague ground. Hence, the application is dismissed.

Author: Jayant Patel,&Nbsp;Honourable Z.K.Saiyed,&Nbsp;

Shailesh vs State on 16 June, 2010

Gujarat High Court

Criminal Misc. No. M- 22614 of 2009 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Criminal Misc. No. M- 22614 of 2009 Date of decision: August 18, 2009 Jyoti Sharma & another -Petitioners Versus State of Haryana & others -RespondentsCoram Hon'ble Mr. Justice Rajan Gupta Present: Mr. Madan Sandhu, Advocate, for the petitioners. Rajan Gupta, J.(Oral) The petitioners have filed this petition under Section 482 Cr.P.C. for protection of their life and liberty. Learned counsel for the petitioners contends that the petitioners are major and have married against the wishes of their parents. They have placed on record School Certificates, Annexures P-1 & P-2 as proof of their age and marriage-certificate, Annexure P-3 besides photographs, Annexures P-5 & P6. Counsel further submits that a representation (Annexure P-7 ) was made to the Superintendent of Police, Ambala bringing to his notice that the petitioners have married and feared threat to their life and liberty from respondent No.4. Notice of motion to official respondents. On asking of the Court, Mr. Tarun Aggarwal, Senior DAG, Haryana accepts notice. After hearing counsel for the parties, the instant petition is disposed of with a direction to the Superintendent of Police, Ambala to Criminal Misc. No. M- 22614 of 2009 2 look into the representation, Annexure P-7 preferred by the petitioners and take appropriate steps in the facts and circumstances of the case. [Rajan Gupta] Judge August 18, 2009. 'ask'

Jyoti Sharma & Another vs State Of Haryana & Others on 18 August, 2009

Punjab-Haryana High Court

ORDER Anil Dev Singh, J. 1. By this petition the petitioner, a M.C.D. contractor, who is one of the accused in Sessions Case No. 75/97, FIR No. 340/96, P.S.Okhla Industri- al Area, under sections 364/302/201/216/411/120B/ 34, IPC seeks bail. The accusation against the petitioner is that he along with his associates, namely, Kamal Singh @ Shaily, Vibhor Singh @ Lovi, Vijay Mohan Sharma @ Minto, Dr. Hemant Kalra, Viney Kumar @ Vinu, Ravi Prakash @ Ravi @ Shard Gupta/Agarwal, Kamal Kumar @ Pinki and Jaindender Kumar Tyagi @ JK, were involved in the macabre crime in which three persons were murdered. The victims were Dr. Sunil Kaul, proprietor of Personal Point, and his two employees Sujata Saha and Deepa Sharma. The petitioner had known accused Ravi Prakash as he happens to be the brother-in-law of one Vijay Prakash who was posted as an Executive Engineer in the M.C.D. From January 1994 to October 1995. Ravi Prakash stayed in the flat of the petitioner at Greater Kailash Part II from March 995 till June 1995. As per information gathered during the investigation, several criminal cases are pending against him. Prosecution has also brought to the fore the accusation of alleged ill will between Vijay Prakash and one Zile Singh contractor. There was a murderous attack on him for which case F.I.R. No. 298/95 was registered. The involvement of Ravi Prakash and petitioner Subhash Gupta was suspected in the incident. Subhash Gupta in the year 1995 joined Personal Point and was allegedly attracted towards Sujata Saha. Sujata Saha spurned the advances of Subhash Gupta. Subhash Gupta suspected Sujata Saha to be involved with Dr. Kaul and this, according to the counsel for respondent, led to the showing of the seeds of conspiracy resulting in the murders. In the evening of June 6, Dr. Sunil Kaul, Sujata Saha and Deepa Sharma visited the office of accused Subhash Gupta, located at M.C.D. Office, Okhla, as Dr. Kaul wanted to expand his business and for this purpose was expecting loan from him. It is from this place that three of them were kidnapped by the accused and before doing that they were drugged which is indicated by the recovery of empty ampoules of calmpose injections from the office of the petitioner and the statement of one Madan Lal recorded under section 161 of Code of Criminal Procedure according to which three of them while coming out of the office of the petitioner and walking towards the cars were being supported by the accused. While Sujata Saha and Deepa Sharma were made to sit in the BMW Car of the petitioner which was standing outside the M.C.D. Office, Dr. Kaul was put in his own Maruti 1000. There was a third car, Maruti 800, which had a U.P. number. In the BMW car, driven by Subhash Gupta, besides him and the above said two ladies, accused Vijay Mohan Sharma @ Minto and Kamal Kumar @ Pinki were also seated. Maruti 1000 was driven by accused No. 2 Kamal Singh @ shaily, and besides him and Dr. Kaul, accused Ravi Prakash and accused Dr. Hemant Kalra were also seated, Maruti 800 was driven by accused Vibhor Singh @ Lovi. All the three cars left the office of the petitioner one after the other. On the night intervening 6th and 7th June 1996, Nitin Gupta, son of the petitioner Subhash Gupta, lodged an F.I.R. No. 340 of 1996 under section 365 I.P.C. at P.S. Okhla as the latter had not returned home. He along with the F.I.R. produced a driving licence of Dr. Kaul which was found by him in the office of Subhash Gupta. The police registered the FIR and visited the office of Subhash Gupta where torn cheques of Rs. 6 lacs each were seized along with the broken ampoules of calmpose and torn pieces of ransom note in the handwriting of Subhash Gupta were found. The ransom note was pieced together which conveyed that the petitioner had been kidnapped and the kidnappers were demanding a ransom of Rs. 50 lacs. On 7th June 1996 the car of Dr. Kaul was found abandoned at Hodal. On the same day at about 3.30 P.M. dead body of Dr. Kaul was found in a field at Hodal. The body bore two bullet injuries. On 9th June 1996 dead bodies of Sujata Saha and Deepa Sharma were recovered in a highly decomposed state at Bhind, Moraha M.P. On 10th June 1996 a call was received at the house of Subhash Gupta that he was in Bombay in Hotel Leela. On receipt of this information, a police party under the charge of Inspector Balwinder Singh was sent to Bombay. The petitioner and his BMW car were found by the police party at the above said hotel. The BMW car of the petitioner was inspected at Bombay. As per the report of the CFSL expert at Bombay, blood stains on the mat of the car were found. The expert opined that the stains found in the car were of human blood. From the dicky of the car, fibres were recovered and as per the report of the CFSL at Bombay the fibres were from the bed sheet in which Sujata Saha's body was wrapped. The investigation mounted by the Investigating Agency culminated in the filing of the charge sheet against the petitioner and nine others accused, namely, Kamal Singh @ Shaily, Vibhor Singh @ Lovi, Vijay Mohan Sharma @ Minto, Dr. Hemant Kalra, Viney Kumar @ Vinu, Ravi Prakash @ Ravi @ shard Gupta/Agarwal, Kamal Kumar @ Pinki and Jaindender Kumar Tyagi @ JK. All the accused are standing their trial before the learned Additional Sessions Judge. Petitioner moved a bail application before the trial court which was rejected on 11th August, 1997. It may be pointed out that this application was filed on the ground that he was suffering from depression and his condition warranted his release from jail. Having failed to secure the bail from the trial court the petitioner has moved the instant petition seeking bail. Learned counsel for the petitioner in support of his bail application argued that the petitioner himself was victim of kidnapping by Ravi Prakash and his associates and was not in any manner involved in the murders. It was pointed out that pieces of ransom note and two torn cheques of Rs. 6 lacs each were found from the office of Subhash Gupta by the police. He further submitted that the kidnapping of the petitioner along with the three deceased is also proved from the fact that when he was examined on 11th June 1996 at Bombay he was having the following injuries:- 1. Radish Blue bruise with swelling measuring 8 cm x 3 cm on the back of chest situated on centre. 2. Radish blue bruises with swelling and pain measuring 8 cm x 3 cm on the back of the right chest - present vertically. 3. Injection prick mark present over both elbows. He submitted that as per the opinion of the doctor the injuries were of a duration of more than 48 hours and hat the injuries 1 and 2 were caused with blunt force and injury No. 3 was caused by an injection prick. Learned counsel also submitted that the petitioner was in love with Sujata Saha and there was no reason for him to kill her. He further pointed out that he had already advanced money to Dr. Kaul for which he was getting good return and this being so, there was no reason to get rid of Dr. Kaul. He also submitted that pen and gold chain belonging to the petitioner were recovered from the other accused persons which is a pointer to his innocence as in case he had not been a victim his personal effects would not have been taken over by the other accused persons. On the other hand, learned counsel for the respondent submitted that the petitioner does not deserve bail as there are grave accusations against him. He further submitted that the petitioner is involved in three murders of innocent persons. He further canvassed that torn pieces of ransom note were deliberately left by the petitioner to give evidence to his story that he was also kidnapped along with the deceased persons. Learned counsel invited my attention to the material on record to support the prosecution story. I have considered the submissions of the learned counsel for the parties. It is true that there is no eye witness to the murder of the three victims but the following material collected by the respondent during investigation reflects the role of the petitioner in the crime:- The respondent relies on a diary allegedly written by the petitioner during the period 9th February 1996 to 2nd March 1996. The entries made therein speak of the attraction which the petitioner felt for Sujata Saha. A reading of the diary clearly shows that the infatuation was one sided and page after page of the diary manifests the dejection of the petitioner for his failure to receive response from her. It also shows that the petitioner was quite possessive about her as he did not like her smiling at others. The extent of possessiveness of the petitioner for Sujata Saha finds expression in the following writing of the petitioner:- "If you not become mine I murdered you and same time I made to suicide myself." The diary was produced by the father of Sujata Saha and was seized by the prosecution vide seizure memo dated 18th June 1996. As per the opinion of the hand writing expert the diary is written in the handwriting of the petitioner. It was allegedly written by the petitioner during the time Sujata Saha had gone to South India on tour along with her parents. The obsession of the petitioner for Sujata Saha is evident from the fact that he along with his younger brother Anil Gupta and Arvind Malik, a Junior Engineer in the M.C.D., followed her to South India in his Toyota Car. 2. In April 1996 Sujata Saha along with a friend and her husband Ajay Nagpal, whose statements were recorded by the Investigating Agency under section 161 Cr.P.C., went to Shirdi for pilgrimage. Subhash Gupta sent accused Ravi Prakash and Dr. Hemant Kalra to Bombay by air. The duo from Bombay proceeded to Shirdi by car and stayed at Hotels Sharan and Guraia under assumed names. The hotel records were seized by the Investigating Agency. 3. The apathy of Sujata Saha towards the petitioner is apparent from the fact that the petitioner had presented air tickets to her and her family for undertaking the trip to the South India but the same were not utilised by her and on the contrary the tickets were torn to pieces which were recovered from her drawer during investigation. 4. From 2nd May 1996 to 4th May 1996, accused Ravi Prakash, Pinky, Shaily were staying in Mohan Hotel, Ashok Vihar Delhi. Thereafter they shifted to Centaur Hotel, Delhi, where they were joined by accused Deepak Das and witness Saurav Bhatt. As per the respondent the record of the cellular phone of the petitioner, which was seized, shows that during this period the petitioner was in touch with the above said accused persons. Statement of one Balbir Singh, contractor, was recorder under section 161 of the Cr.P.C. in which it has come that huge money was handed over by the petitioner to Shaily during this period. It has also been revealed during investigation that on May 1, 1996 the petitioner withdrew a sum of Rs. 5 lacs in cash from Oriental Bank of Commerce at Paharganj. Investigation shows that on 5/6th June 1996 accused Ravi Prakash, Shaily and Pinki stayed in Mohan Hotel, Ashok Vihar, New Delhi, for the second time. Here they were joined by accused Dr. Hemant Kalra, Vijay Mohan, Vibhur Singh @ Levy and Subhash Gupta on 6th June, 1996. During investigation statements of Anil Saluja, Manager, and Sandeep Rana, Cashier, Ganga Saran Shukla, Waiter, of Mohan Hotel were recorded. From their statements not only the factum of the above said accused persons having stayed in the hotel is borne out but it also transpires from the statement of Ganga Saran that when ever he used to visit their room they would talk in hush-hush tones. He also heard Rave Prakash telling the other accused that Subhash Gupta is a special person for him and his work must be done today. The Investigating Agency also recorded the statement of one Vikram Singh who stated that the petitioner was the owner of first floor of S-254. Greater Kailash Part I and was residing there with his family. He then shifted to S-102, Greater Kailash Part I. This flat was subsequently sold by Subhash Gupta but before the sale a boy whose description has been given by him stayed in his flat. According to Ashok Maniktala, whose statement was recorded under section 161 Cr.P.C., the boy was 6' 3" and on the information given by the petitioner was studying for his I.A.S. He also stated that on enquiry he came to know that the boy was related to some officer in the M.C.D. The prosecution claims that reference in the above statements is obviously to Ravi Prakash. Maniktala has also stated that he will be able to recognise the person who was staying in the house of the petitioner. 5. Statement of one Gyan Bir, who was employed as Beldar by the petitioner, was recorded by the Investigating Agency during investigation. He is the witness to the arrival of accused Ravi and Shaily in the office of Subhash Gupta in the evening of 6th June 1996. Gyan Bir, in his statement under section 161 if Cr.P.C., alluded to the fact that on the evening of 6th June 1996 he was asked by the petitioner to bring sweets from the shop of Haldiram located at Badarpur even though he had suggested to the petitioner that he could get the sweets from nereby Chawla Sweets. As per the suggestion of the prosocution, Gyan Bir was sent to the far off shop of Haldiram so that he does not see as to what was taking place at the petitioner's office between the accused on the one hand and Dr. Kaul, Sujata Saha and Deepa Gupta on the other. Mithlesh, who was employed as Chowkidar by Subhash Gupta, is a witness to the arrival of Shaily, Ravi Prakash, Dr. Hemant Kalra, Vijay Mohan, Vibhor Singh and Kamal Kumar to the office of Subhash Gupta on the evening of 6th June 1996. Besides, he is also stated to have seen the arrival of Dr. Kaul, Sujata Saha and Deepa Gupta to the office of Subhash Gupta. Even mithlesh was sent to Lajpat Nagar to get apples and packets of fruit juice. When he returned he was again sent to run another errand. This time he was asked to get bottles of Bisleri. On his return he found the office to be empty. Mithlesh also speaks about the fact that earlier Subhash Gupta had given him instructions not to let Gyan Bir enter his office after he brings sweets from Haldiram. According to him he acted on the instructions of Subhash Gupta and took the sweets from Gyan Bir had brought the sweets and left the office for his house, Mithlesh was sent to Lajpat Nagar. The respondent suggests that the conduct of Subhash Gupta a shows that he did not want his chowkidar and Beldar to be witnesses to what was taking place in his office between the accused persons and the deceased. One Madan Lal, Kabari, who was passing by the office of Subhash Gupta and another person. He stated that the two ladies were made to sit in a grey coloured car. He also saw that similarly another person was brought out from the office of Subhash Gupta with the help and assistance of two persons and was made to sit in the back seat of a white coloured Maruti car. He also refers to the fact that the cars left on after the other. As per him the grey car was being driven by Subhash Gupta. 6. A strong submission was made on behalf of the respondent that the theory that Subhash Gupta was also kidnaped with Dr. Kaul, Sujata Saha and Deepa Sharma as advanced by the learned counsel for the petitioner during arguments is totally discounted by the statement of Madan Lal. Ashiwini Saini is the person in whose house at Agra the accused Subhash Gupta, Kamal Kumar, Vibhor Singh and Dr. Hemant Kalra and the two ladies arrived on the morning of 7th June 1996. According to Ashwini Saini, he is known to Ravi Prakash who had told him that he was a sales tax inspector in Delhi. On arrival, Ravi Prakash Introduced Subhash Gupta at his officer to Saini and one of the ladies who was in jeans as the wife of Subhash Gupta: Saini was told that one of their cars had broken down and that they would rest in his house by the time their car was repaired. As per Saini, he left his house for his work and told Ravi Prakash that in case he was not back by the time they left, the key of the house should be given to the neighbour. Saini is stated to have returned at 7.30 in the evening and found that Ravi Prakash and his associates were ready to leave. He, however, did not find the two ladies and enquired about them. He was told by Ravi Prakash that they had already left in the other car and that the accused would be meeting them at the petrol pump. Saini also stated that after a few days he read about the murder of the two ladies and also saw their photographs in a newspaper. He also read the news relating to the murder of Dr. Kaul. In order to find out the details he is stated to have gone to Baroda and met accused Deepak Das, who was known to him and also to Ravi Prakash. Deepak Das gave the address of Ravi Prakash, Kamal Kumar and two other associates who were staying in Hotel Sweet Dream. Saini refers to the fact that Ravi Prakash on seeing him felt ashamed for having betrayed his confidence and stated that he had murdered the two ladies at the behest of the petitioner. 7. Blood stains were found in the BMW car of the petitioner and as per the opinion of the expert of the C.F.S.L. Bombay, the mats of the car were stained with human blood. Some fibres were also found from the boot of the car and as per the report of the C.F.S.L. the fibres were from the same bad sheet in which Sujata Saha's body was wrapped. Saini in his statement confirmed that after the accused left he found one bed sheet to be missing. The torn pieces of the bed sheet in which Sujata Saha's body was found was identified by Saini as the one found missing from his house. 8. As Per the prosecution, another clinching factor which proves the complicity of the petitioner in the crime is that he had employed one Vikram Singh, Managing Director of a detective agency, to tail Sujata Saha. Vikram Singh in his statement has pointed out that the petitioner had specifically told him on 5th June 1996 as she was to remain in her office till 6 P.M. on that day and was to meet him thereafter. Learned counsel for the respondent made a strong plea that calling off the surveillance for 6th June 1996 when the deceased were kidnapped is crucial. In case the surveillance was not called of it would have been difficult to implement the plan. Having regard to the above material, ex facie the petitioner cannot claim that he along with the deceased was kidnapped by the other accused persons and was not privy to the crime. Learned counsel for the petitioner submitted that the petitioner is suffering from depression and other ailments and he should be released on interim bail. If the petitioner is suffering from depression and some other ailments it will be for the jail authorities to give him treatment in the jail hospital or any other hospital. The considerations for the grant or refusal of bail are the nature and gravity of the circumstances in which the offence is committed; the position and the status of the accused with reference to the victim and the witnesses; the likelihood of the accused fleeing from justice, of repeating the offence; likelihood of tampering with the witnesses, and the other relevant grounds. Besides, while granting or refusing the bail the public interest and the likely affect on the victim's family must also be taken into consideration. The question which also must be consider, while exercising the discretion under section 493 of the Code of Criminal Procedure is whether in the event of grant of bail the public confidence in the administration of justice will go up or will be eroded. The answer to the question is again linked to the nature and character of the offence. Having regard to the totality of the circumstances and keeping in view the above said well known considerations for the exercise of discretion under section 439 of the Code of Criminal Procedure, I do not consider it to be a fit case for grant of bail to the petitioner at this stage. Accordingly, the application is dismissed. It is clarified that the above observations will not be construed as an expression of opinion on the merits of the case. Copies of this order be given DASTI to learned counsel for the parties.

Author: A D Singh

Subhash Gupta vs Delhi (Delhi Admn.) on 13 November, 1997

Delhi High Court

iwnmvw K wnwwmvgia 5 wvwww-ax *\ww:£"%w'!m§'« 'awn mmwmasmmm awwww W?' ammswmfimmm mwwm wwmmea wag. mmxmw-y:=»:.:4-.;..<».a IN THE I-II€3I~I ccmm or KARHATAKA AT BANGALORE % mmn ms Tim 1-: DAY op' SEPTEMBER = f % _ BEFORE 5~sLDIlCE8H@DIN'£8]0IATEJAIRAE- k Aommomzsvmm "._ 2;». 2:» came, man Avmppa TE" PLE BAmAmw--24 - % « %rvE°rmo1mR tame mm REPGUWHT _ Cr.PZC. tgi the pafiinnar an bail in C:-.Ho.19I2mJ9 <__of atmon. Bangalore, on theme of ,Ad.4:l1CMz"vI at Bangalcrc in (2.0. No.1?'88I2009, 391' thc section 302 and 1120-13 r]w sac. 'I'h'npetit'1m<:owngonfor ordexatlfi day, theccurt " madethefo11nw'n1g;--- Sd/- JUDGE 2 Iaarmd ooumel appearm for the: 4_ fled a memo seeking laava of ' petifion. Mmiata1mt1onreeord.;" {V RV' wxsau xfim §§,§§§ $3 ,,w§§Q 3%: €.gfi§fi,?:.,,, fig wagau @333 §§.§§.§ $5 $339 magi ggfifizggé $.33; iaifi gggifirwggafi :2; $433}

Author: Subhash B.Adi

Sri Dinesh @ Dini vs State By Bagalur Police Station on 1 September, 2009

Karnataka High Court

IN THE HIGH COURT OF KARNATAKA, CIRCUIT BENCH AT DHARWAD. DATED THIS THE 22% DAY OF JANUARY 2010 PRESENT THE HON'BLE MRJUSTECE K.L.MANJUNA"r1{I A "' AND THE E-ION'BLE MR.JUST1(}E Ai€A.yiN_s KURIAR». 2 " Regular First Armeai NQT2731 of 2002 Regualr First Appeal N6. 645 (if 2005 ' 85 Regular First ---.At:*pea1 Ne». , 646» g§;2_005 R.F.A.Nos.731of2002._and 6é§._i§_._.<.5_f'--20'fV)V$:_ M Between: 1. . _And Secretary . The Secretary» « - .. ._ The Peopiest. Education Society V' 4 "Neiir?.1__ Nagar, Beigaum The Peoples Educati%j"i1_Society"82;Trust A Regsd. Society 85 Ptitiiic Belgaum _' it _ i . " , Rep. By -its Chairman 8:. Nlariaging Trustee I A Th cg C.hai1:inan. Managing Trustee The1?e'dp1e'sAEc1Vuc_ation Society Nei*tr{.;--._1':I aga1fi_v.Beigaurn .. Appellants Ahupama Hegde and Sri Manjunath, Advocates ---- absent) <5/r. 51.: And: 1. The Institute of Engineers Rep. By its Chairman Office of the' Chief Engineer Irrigation (North) Club Road, Bclgaum 2. The Secretary Institute of Engineers Office of the Chief Engineer Irrigation (North) Club Road, Belgaum V Ries.pondcnt:s~.,viVVi" (By M / s J ayakumar S.Patil Assts., Adxrocates) R.F.A.No.646 of 2005 The Managing Trustee Peoples Education Society A And Trust, Shivabasav: Nagarf Belgaurn " " .. Appellant (Appellant ahvsent) And: The Institute of Engineersv (India) Belgauzri L.C:r:al-- CentreV,"i)oub1e Road '=Shivabasa,vwNa.gar, Belgaum By itsi_Chai'r_rr1an~d._ it The llrlsltituvtel offiihgineers (India) Belgauim Local"Centre, Double Road - .. « u _ Shivabas'av' 'Nagar, Belgaum 'By ifspsecretary .. Respondents V" 4 lsldayakumar S.Patil Assts., Advocates} ¢1/ Regular first appeal No.731/2002 has been filed u/ s 96 CPC against the judgment and decree dt. 06.04.2002 passed in O.S.No.104/1998 on the file of the II Addl. Civil Judge (Sr.Dn.}, Belgaum dismissing the suit for mandatory injunction and etc. Regular first appeal No.645/2002 has been filed u/4s.Vé-sf'/_w O 41 Rule 1 CPC against the judgment and decree dt. Q6;O4;2002 passed in O.S.No.284/1998 on the file of the 11 Acicu.i__civiif';:14<1ge'* _ (Sr.Dn.), Belgaum dismissing the suit for possession R' and ' permanent injunction and etc. Regular first appeal No.646/2005 has 3:-een l"13lje.jc1..l1.i',' s"-3€~e.__Mrw,-';i.r.? O 41 Rule 1 CPC against the judgment and decree dt. 06.04.2'0.0i2._ passed in O.S.No.103/1998 on thei1'il_e of the "11 Ad;d1'.fCiVil J_t1dge_ etc. These appeals coming fo1--fijhear1ng,Tthis day," lldanjunath, J., delivered the following: - " * r Since a_the an'd.:l_tl1e_ counsel for the appellants are absent, these 'appeals are..jjdisi'1*~:..issed for non«prosecution. ..... ledge Sd/-- Judge R "R [Sr.Dn.), Belgaum decreeing the suit ~f_o"r<,permane'nt [injunction and "

Author: K.L.Manjunath And Kumar

The Peoples Education Society And ... vs The Institute Of Engineers Rep By ... on 22 January, 2010

Karnataka High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 30988 of 2009(P) 1. K.C. JOSEPH, S/O. CHACKO, ... Petitioner Vs 1. THE ADDITIONAL COMMISSIONER OF ... Respondent For Petitioner :SRI.K.V.PAVITHRAN For Respondent : No Appearance The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN Dated :02/11/2009 O R D E R THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------- W.P(C).No.30988 OF 2009 ------------------------------------ Dated this the 2nd day of November, 2009 J U D G M E N T ~~~~~~~~~~~ This Writ Petition is filed, invoking Article 226 of the Constitution of India, seeking interference with an order passed under the Abkari Act confiscating a vehicle and the appellate order affirming it. 2. The petitioner would project the following case: The petitioner's vehicle, a lorry, was stolen from a petrol pump in the night of 11.4.2007 and he lodged a complaint in that regard before the Iritty Police Station and later filed a complaint before the Judicial First Class Magistrate's Court, Mattannur, which forwarded it for investigation. Thereafter, the vehicle was found to have been put to use with a changed registration number and was involved in transporting 58 plastic cans of 35 litres capacity each filled with illicit spirit, such material being concealed in a cabin under the platform. 3. The facts appear to show that vehicle bearing registration number TN-28Q/4129 came to police custody on account of alleged offences punishable under Section 304A and Section 279 of the Indian  W.P.(C) No.30988/2009 2 Penal Code. While the vehicle was lying in police custody, on information, the vehicle was further searched and an additional floor underneath the cabin was traced. It was accordingly that violation of Abkari law was noticed. The Narcotic Cell, Alappuzha, through the Deputy Superintendent of Police, the investigating officer, had come to the conclusion that the vehicle was not actually stolen as reported by the petitioner, but, the petitioner, the registered owner, had authorised his younger brother, namely, Ajeesh @ Aji to run business and the said Ajeesh and one Francis @ Good Luch Baba, jointly used the vehicle for smuggling spirit. They were arrested on 25.12.2008 and remanded. The Deputy Superintendent of Police concluded that there is no evidence to connect the petitioner, the registered owner, to the abkari crime. 4. With the aforesaid material and having regard to the file, including the application of the petitioner, the competent authority concluded that the petitioner had not taken necessary precautions due from a registered owner against the misuse of the vehicle, which originally had registration number KL-58/1954. The learned counsel for the petitioner on query by the Court does not dispute that the petitioner had put his brother Ajeesh @ Aji in custody of the vehicle. W.P.(C) No.30988/2009 3 5. With the aforesaid materials, in the exercise of jurisdiction of confiscation, the initial authority's finding stand confirmed by the appellate authority. Though the learned counsel for the petitioner stated that the information given by the Deputy Superintendent of Police was not put to the petitioner, the learned counsel for the petitioner candidly stated on query by the court that no such ground was projected before the appellate authority. 6. With the aforesaid, I do not find any legal infirmity or jurisdictional error in the impugned decision, which have been rendered stating reasons and after adverting to the relevant materials. Those cannot be treated as unavailable on the records as disclosed and admitted. The Writ Petition therefore fails. In the result, the Writ Petition is dismissed in limine. THOTTATHIL B.RADHAKRISHNAN, Judge ps 

K.C. Joseph vs The Additional Commissioner Of on 2 November, 2009

Kerala High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 33003 of 2009(U) 1. ABDUL AZEEZ,S/O.MAITHEEN KUNJU, ... Petitioner Vs 1. STATE OF KERALA, ... Respondent 2. INSPECTOR GENERAL OF POLICE, 3. DEPUTY SUPERINTENDENT OF POLICE, 4. CIRCLE INSPECTOR OF POLICE, 5. SULAIMAN, For Petitioner :SRI.SAJU.S.A For Respondent : No Appearance The Hon'ble MR. Justice KURIAN JOSEPH The Hon'ble MR. Justice C.T.RAVIKUMAR Dated :08/12/2009 O R D E R KURIAN JOSEPH & C.T. RAVIKUMAR, JJ. --------------------------------------------- W.P. (C) NO. 33003 OF 2009 --------------------------------------------- Dated this the 8th day of December, 2009 JUDGMENT Kurian Joseph, J. The petitioner approached this Court complaining of police harassment. According to the petitioner, his vehicle bearing No. KL 24- 8439 has been detained by the 4th respondent at the instance of the 5th respondent with whom the petitioner has some money transactions. The learned Government Pleader, on instruction, submits that the vehicle was detained because it was found that the vehicle was used without a number plate at the rear side. This is disputed by the petitioner. According to the petitioner, the detention of the vehicle was only for compelling him to settle the disputes with the 5th respondent. Pursuant to the order dated 2.12.2009, the vehicle was released to the petitioner on kaichit. In the above circumstances, the Writ Petition is disposed of making it clear that it will be open to the petitioner to pursue his grievances before the police complaint authority or any other  W.P.(C) NO. 33003/2009 2 appropriate forum. It will also be open to the 4th respondent to complete the proceedings already initiated pursuant to which the vehicle was detained. We also make it clear that the police shall not interfere with the civil disputes, if any, between the parties. (KURIAN JOSEPH) JUDGE (C.T. RAVIKUMAR) JUDGE sp/  W.P.(C) NO. 33003/2009 3 KURIAN JOSEPH & C.T. RAVIKUMAR, JJ. W.P.(C)NO.33003/2009 JUDGMENT 8th December, 2009 

Abdul Azeez vs State Of Kerala on 8 December, 2009

Kerala High Court

JUDGMENT M.G. Mukherji, C. J. 1. The reference is at the instance of the learned single Judge in S. B. Civil Writ Petition No. 6345/ 1992 and S. B. Civil Writ Petition No. 3784/1993. In the first writ application filed by the Rajasthan State Road Transport Corporation ('RSRTC' for short hereinafter) the award dated December 3, 1991 as passed by the Labour Court, Bhilwara in Labour Case No. 9/1991, formerly numbered as 39/1987 has been impugned by the RSRTC whereby the learned Judge, Labour Court having found the order of termination dated October 8, 1994 to be unsustainable directed reinstatement of the workman Gopal Singh treating his case to be one of continuous employment and observed that the said Gopal Singh would be entitled to 50% of his backwages till the date of the award and would be entitled to full wages thereafter. His two annual grade increments were withheld. The, RSRTC was also declared to be entitled to deduct a sum of Rs. 8000/- to which extent it sustained as a loss on account of the accident. The workman Gopal Singh also challenged the said award in S. B. Civil Writ Petition No. 3784/1993 wherein he prayed inter alia for a relief to the effect that he should be exonerated from all the charges and he was liable to be reinstated by the Court treating him to be in continuous service with all consequential benefits. His contention inter alia was that the finding of misconduct recorded against him by the Labour Court was not sustainable in the eye of law. 2. It would be necessary for us to refer to the background of the case leading to the reference before the Labour Court. Gopal Singh was a driver in the service of the RSRTC. He was charge-sheeted on November 22, 1982 by the Divisional Mechanical Engineer, Ajmer for an alleged misconduct committed by him on November 8, 1982 while driving the Bus No. RSB 4509 without keeping a reasonable distance between the vehicle he was driving and a truck which was going ahead of it. It is alleged that Gopal Singh rashly and negligently collided the Bus he was driving with a truck with the result that there was a damage caused to the Bus to the tune of Rs. 8,000/- and as a result of the collision many of the passengers travelling in the bus received minor injuries. The said misconduct allegedly caused loss of reputation to the RSRTC, inasmuch as, the prestige of the RSRTC about its management in running the Buses was lowered down in the estimation of passengers travelling on the Bus as well as before the public at large who saw the accident caused by rash and negligent driving of the Bus by Gopal Singh. There was a domestic enquiry wherein the Enquiry Officer found Gopal Singh guilty. The Disciplinary Authority thereupon passed an order of punishment of removal from service. Aggrieved by the order of removal from service dated October 8, 1984 (Annexure 7 to the writ application) Gopal Singh filed an appeal before the Appellate Authority which was dismissed by the Appellate Authority on February 27, 1985 (vide Annexure 8 to the writ application). Thereafter an industrial dispute was raised and on reference being made by the State Government under Section 10 of the Industrial Disputes Act, 1947, both the parties filed their statements of claims and reply thereto. The Labour Court vide its order dated March 3, 1989 (Annexure 11 to the writ application) held that the domestic enquiry against Gopal Singh was unfair and was conducted against the principles of natural justice since despite Gopal Singh making a request for supplying of two copies of spot inspection report Annexure P/2 and P/5 which were prepared on the spot after the accident in question, these documents were not made available to him by the RSRTC. After passing of the order dated May 3, 1989 (Annexure-11) by the Labour Court the RSRTC made a request before the Labour Court to prove the charges levelled against Gopal Singh and such a prayer was allowed by the Labour Court. The RSRTC adduced evidence in support of the charges levelled against Gopal Singh. The Labour Court after evaluating the gravity of misconduct held that the punishment of removal from service of Gopal Singh was harsh in relation to the misconduct proved by the RSRTC and in exercise of its discretion under Section 11A of the Act set aside the punishment of removal from service imposed by the Disciplinary Authority and instead imposed punishment of withholding of two annual grade increments with cumulative effect, awarded Rs. 8,000/- as damages to the RSRTC and reinstated Gopal Singh back in service with continuity in service along with 50% backwages with effect from October 8, 1984 till the date of the passing of the award dated December 3, 1991 (vide Annexure 18 to the writ application). 3. The learned single Judge took into consideration Division Bench decisions of our Court in the case of Rajasthan State Road Transport Corporation v. Habib Khan reported in (1993-II-LLJ-328) (Raj) and Rajasthan State Road Transport Corporation v. Judge, Industrial Tribunal, Bikaner reported in (1995-I-LLJ-357) (Raj). Another single Bench judgment in the case of Rajasthan State Road Transport Corporation v. Kailash Chandra Sharma reported in (1995-I-LLJ-268) (Raj) was also taken into consideration. 4. It was contended on behalf of the RSRTC before the learned single Judge inter alia that once the guilt of the delinquent workman is found by the Labour Court/ Industrial Tribunal it was not open for the said Court or the Tribunal to interfere with the quantum of punishment. The discretion under Section 11A of the Industrial Disputes Act, 1947 however could be sparingly exercised, only in case where the Court chose to interfere in matters of excessive punishment which was harsh and outweighed the gravity of the offence. 5. The learned Advocate for the respondent workman Gopal Singh however contended that under Section 11A of the Industrial Disputes Act a wide discretion has been vested in the Tribunal in the matter of awarding relief according to the circumstances of the case and the High Court in exercise of its jurisdiction under Articles 226 and 227 of the Constitution did not possess such power and jurisdiction to question the award as given by the Labour Court and cannot substitute its own verdict in preference to the one chosen by the Labour Court or the Tribunal as regards the quantum of punishment. The decision in Jitendra Singh Rathore v. Baidya Nath Ayurved Bhavan Ltd. reported in (1984-II-LLJ-10) (SC) was also cited in support of this contention. 6. The other contention resorted to by the workman concerned was that if the Labour Court after evaluating the gravity of misconduct held that punishment of removal from service is disproportionately harsh in relation to the misconduct and in exercise of its discretion under Section 11A of the Industrial Disputes Act passed an order reinstating the workman into service then this Court in exercise of its power under Articles 226 and 227 of the Constitution of India would not re-examine the question of adequacy or inadequacy of material for interference in the order passed by the Labour Court/Tribunal. In this context the decision in Hindustan Machine Tools Ltd., Bangalore v. Mahommed Usmaan reported in (1983-II-LLJ-386) (SC) was relied upon. 7. The third contention on behalf of the workman was to the effect that in similar circumstances where a Bus driver was found under influence of liquor while on duty and put the safety of passengers in the vehicle in danger, the Labour Court in exercise of its jurisdiction under Section 11A of the Industrial Disputes Act reduced the punishment of dismissal and passed an order for reinstatement of workman, as according to the Labour Court it was found harsh and heavy. The case of Jaswant Singh v. Pepsu Roadways Transport Corporation reported in (1984-I-LLJ-33) (SC) was an illustration on the point. In Baldeo Singh v. Presiding Officer, Labour Court, Patiala, reported in (1995-III-LLJ (Suppl)-462) (SC) the Supreme Court while interpreting the scope of Section 11A of the Act maintained the order passed by the Labour Court granting relief of reinstatement with continuity of service. In that case also a Bus Driver was charge-sheeted for causing damage to the Punjab Roadways to the extent of Rs. 22.50 by way of two miles short bus trip. After enquiry into the charges and after giving him an opportunity of hearing, the management dismissed him from service holding that the charges have been proved. In that case the Labour Commissioner referred the dispute regarding justiflability of the order of termination of service to the Labour Court. The Labour Court after hearing the parties and considering the evidence found that the workman failed to show that the enquiry held was neither fair nor proper. It was submitted on behalf of the workman who was a Bus driver that the punishment of termination of service awarded was not in consonance with the nature and gravity of charges levelled against the workman and the workman ought to have been given a lesser punishment. The learned Tribunal after considering this submission made an order of reinstatement with continuity of service but without backwages. The Supreme Court found the order of the Tribunal in consonance with the provisions of Section 11A of the Industrial Disputes Act which empowers the Tribunal to make an award directing reinstatement of the workman on such terms and conditions as it thought fit or give such other relief to the workman including the award of lesser punishment in lieu of discharge or dismissal as the circumstances of the case require. No infirmity was found by the Supreme Court in reducing the punishment of termination. It was further urged on behalf of the workman that if in exercise of power under Section 11A of the Act the Labour Court approved the finding of misconduct found by the Disciplinary Authority or itself reached a conclusion about the misconduct of the workman, that itself would also not be a ground for non-interference with the order of discharge or dismissal from service by the Labour Court. In support of the said contention reliance was placed on a decision of the Supreme Court in the case of Scooter India Limited v. Labour Court, Lucknow reported in (1989-I-LLJ-71) (SC). In that case, the order of termination passed by the Disciplinary Authority was set aside by the Labour Court and there was an order of reinstatement of the employee with 75% back wages on the ground that the erring workman should be given an opportunity to reform himself and prove himself to be a loyal and disciplined employee of the Company. The aforesaid reformative theory in the case of Scooter India Ltd. (supra) giving an opportunity to the employee to reform himself and prove to be a loyal and disciplined employee of the Company which was recorded by the Labour Court was affirmed by the High Court of Allahabad as well as by the Supreme Court. It is pertinent to mention that the Award under Section 6 (2-A) of the U. P. Industrial Disputes Act is analogous to Section 11A of the Industrial Disputes Act, 1947. 8. The Corporation on the other hand relied upon the case of Fire Stone Tyre and Rubber Company v. Management reported in (1973-I-LLJ-278) (SC). The learned single Judge was of the opinion that the decision rendered by two Division Benches in the cases of Habib khan (supra) and Judge, Industrial Tribunal, Bikaner (supra) as well as the decision rendered by the learned ingle Judge in the case of Kailash Chandra Sharma (supra) require reconsideration. 9. The learned single Judge observed that even though it was true that in the case of Habib Khan (supra), the learned Judges constituting Division Bench had noticed the decision rendered by the Supreme Court in the case of Jitendra Singh Rathore v. Shri Baidya Nath Ayurved Bhavan (supra) in para 12 of its judgment, but instead of following the ratio laid down in paragraph 4 of the said judgment set aside the punishment awarded by the Labour Court in exercise of its power under Section 11A of the Industrial Disputes Act and substituted its own opinion about the punishment in place of the punishment awarded by the Labour Court. It maintained the order of dismissal passed by the Disciplinary Authority instead of remitting the case to the Labour Court for passing appropriate punishment. It was observed in Jitendra Singh Rathore's case (supra) that even though under Section 11A of the Industrial Disputes Act advisedly wide discretion is vested in the Tribunal in the matter of awarding relief according to the circumstances of the case, the High Court does not enjoy such powers even though exercising its jurisdiction as a superior Court by way of a right of superintendence. The High Court is undisputably entitled to scrutinize the orders of the Tribunal within the well accepted limitations and, therefore, it could in an appropriate case quash the award of the Tribunal and thereupon remit the matter to it for fresh disposal in accordance with law after passing directions, if any, but the High Court is not entitled to exercise the powers of the Tribunal and substitute an award in place of one made by the Tribunal as it can do in the case of an appeal where such a jurisdiction vests in the High Court so to do. 10. The learned single Judge was of the opinion that the ratio as propounded by the Supreme Court in Jitendra Singh's case (supra) has not undergone any change by way of subsequent decision nor was it interpreted subsequently or explained by the Supreme Court in a different manner. Accordingly, the learned single Judge held that the two decisions rendered by our Division Bench in the case of Habib Khan (supra) and Judge, Industrial Tribunal, Bikaner (supra) as well as the single Bench judgment of our Court in the case of Kailash Chandra Sharma (supra) require reconsideration. 11. The learned single Judge further observed that in Habib Khan's case (supra), the order as passed by the learned single Judge was set aside by the Division Bench in special appeal and the award passed by the Tribunal also stood set aside and the Division Bench substituted its own punishment by way of dismissal by restoring the punishment as passed by the Disciplinary Authority. In the case of Judge, Industrial Tribunal, Bikaner (supra) also, the same procedure was followed. The order of the learned single Judge as well as the order of reinstatement passed by the Labour Court stood set aside and the special appeal was allowed by substituting the Division Bench's own order of punishment of dismissal from service instead of remitting the question about adequacy or inadequacy of the punishment to the Labour Court. In the case of Kailash Chandra Sharma (supra) also, the order of reinstatement as passed by the Labour Court was set aside and in its place the High Court substituted its own order of punishment of removal without remitting the question of punishment with High Court's own observations, or without passing any directions to consider the adequacy or inadequacy of punishment to the Labour Court. 12. The learned single Judge's observations on a close scrutiny of the decision rendered by the Division Bench of our Court in the case of Habib Khan (supra) indicates that the said decision is based on the decision of the Supreme Court in the case of Fire Stone Tyre and Rubber Company v. Management, (supra) which speaks of a law before Section 11A was brought on the statute book as would be evident from paragraphs 28 and 29 of the said decision in the case of M/s. Fire Stone Tyre and Rubber Company (supra). A scrutiny of the decision rendered by the Division Bench of our Court in the case of Judge, Industrial Tribunal, Bikaner (supra) also according to the learned single Judge, revealed that it was also based on the judgment of the Supreme Court in the case of M/s. Fire Stone Tyre and Rubber Company (supra). According to the learned single Judge's own observations, the Division Bench judgments of this Court in the case of Habib Khan (supra) and Judge, Industrial Tribunal, Bikaner (supra) did not notice and/or failed to appreciate the ratio of the Supreme Court decisions in the case of Management of Hindustan Machine Tools Ltd. Bangalore v. Mohammed Usmaan (1983-II-LLJ-386) (SC) rendered by three Hon'ble Judges of the Supreme Court as well as the decisions in Scooter India Ltd., Lucknow v. Labour Court, Lucknow, (supra). Baldev Singh v. Presiding Officer, Labour Court, Patiala, (1995-III-LLJ (Suppl)-462) (SC) Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha, (1980-I-LLJ-137 (SC) and State through (CBI), New Delhi v. S.J. Choudhary AIR 1990 SC 1050. The learned single Judge in Rajasthan State Road Transport Corporation v. Kailash Chandra Sharma (supra) has also not noticed the other decisions except the one in State through (CBI), New Delhi v. S. Choudhary (supra). 13. The learned single Judge accordingly expressed the view that the decision rendered by the Hon'ble Judges of the Supreme Court in the case of Jitendra Singh Rathore (supra) and the decisions rendered by the Division Bench of our Court in the case of Habib Khan (supra) and Judge, Industrial Tribunal, Bikaner (supra) as well as the decision rendered by the learned single Judge in the case of Kailash Chandra Sharma (supra) require reconsideration. The learned single Judge thought that the matter should be referred to a larger Bench since nothing has been brought to his notice that the decisions rendered by the two Division Benches of our Court as well as the learned single Judge of our Court are per incuriam. 14. Referring to the decision of the Supreme Court in the case of Rajesh Kumar Verma v. State of Madhya Pradesh regarding practice and procedure about the precedents which are to be followed by the High Court reported in AIR 1995 SC 1421 the learned single Judge quoted the observations of the Supreme Court thus at page 1422-1423 of AIR: "In the group of writ petitions which came up for decision before the Division Bench of the High Court, the High Court placing special reliance on this Court's decision in Director General, Telecommunication v. T.N. Peethambaram came to the conclusion that it was not open to the State Government to reduce the minimum qualifying marks in General English and the seats made available to SC/ST candidates by virtue of the said relaxation would revert to the general category students. It may here be mentioned that in taking this view the Division Bench departed from the view taken by another Division Bench of the same High Court in Amrit Bajpal v. State of M. P. which judgment is excluded as Anx. III at page 42 of the paper-book. This decision was brushed aside on the plea that it had not taken into consideration the decision rendered by this Court in Peethambaram case. Needless to say that in such a situation the proper course is to refer the matter to a larger Bench, a course which the subsequent Division Bench did not follow." 15. The learned Single Judge accordingly thought that there is no other alternative except to refer the case of Habib Khan (supra), Judge, Industrial Tribunal, Bikaner (supra) and RSRTC Kailash Chandra Sharma (supra) to a larger Bench for reconsideration. 16. On behalf of the respondent-workman it was submitted that in the case of Management of Hindustan Machine Tools Ltd., Bangalore v. Mohammed Usmaan, (supra) three Hon'ble Judges of the Supreme Court expressed the opinion that if the Labour Court after evaluating the gravity of misconduct held that the punishment of termination of service is disproportionately heavy in relation to misconduct and exercises its discretion, then the Supreme Court in the absence of any important legal principle could not undertake to re- examine the question of adequacy or inadequacy of material for interference with the order of punishment passed by the Labour Court. It was further contended by the respondent-workman that even though Section 11A is a beneficial piece of legislation enacted in the interest of employees, if the High Court is not satisfied with the order of reinstatement passed by the Labour Court in favour of an employee even (sic.) then it should not be interfered with. 17. In the decision rendered by three Hon'ble Judges of the Supreme Court in Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha, (supra) two Hon'ble Judges observed that amended Article 226 would enable the High Court to interfere with an award of industrial adjudication if that is based on a complete misconception of law or if it is based on no evidence or that no reasonable man would come to the conclusion to which the arbitrator or the Tribunal has arrived at. The majority judgment in para 82 approved the decision rendered by Gujarat High Court in Navinchandra Shankerchand Shah v. Manager, Ahmedabad Cooperative Department Stores Ltd., reported in 1978 19 Guj LR 108 holding that the writ power is larger in a given case to rectify illegality and injustice even if its power is discretionary as decided cases have repeatedly laid down. The Hon'ble Supreme Court thus overruled the proposition as regards invalidity of the High Court's order for want of jurisdiction, while KOSHAL, J, in his dissenting judgment in paragraph 180 of the aforesaid judgment was of the view that the High Court while discharging its functions under Article 227 of the Constitution does not sit as a Court of Appeal over the award of the arbitrator or the Tribunal but exercises limited jurisdiction which extends only to seeing whether the arbitrator or the Tribunal has functioned within the scope of his/its legal authority. 18. The learned single Judge further expressed the view that as to whether the latest judgment of a coordinate Bench of the Supreme Court must have pre-eminence irrespective of any other consideration is also an intricate question of law which requires consideration by a larger Bench. The learned single Judge expressed the view that when a principle stands upheld by the Supreme Court or some practice is deprecated by it, it should be the duty of this Court to follow it up since the observations of the Supreme Court have a binding force within the meaning of Article 14 of the Constitution of India. 19. In Bhagirathmal Rainwa v. The Judge, Industrial Tribunal, Jaipur, (1995-I-LLJ-960) (Raj) where it was a case of misconduct of a Bus Conductor who was purportedly charged of collecting fares from the passengers without issuing tickets and there was evidence of misconduct which was led before the Tribunal and the Tribunal after evaluating evidence ordered penalty of removal and the order did not suffer from any legal infirmity and the Tribunal carefully applied its mind to the circumstances, a learned single Judge of our Court held that the circular issued by the Corporation providing for composition of first four instances of such grave offence as collecting fares from passengers without issuing tickets liable to be admonished as 'misconceived and beyond comprehension', evidencing greatest disservice to the Institution itself. The learned single Judge held that the penalty imposed on the petitioner is not liable to be declared illegal or without jurisdiction even on the basis of the said circular issued by the Rajasthan State Road Transport Corporation. The learned single Judge in this context followed the decision of the Gujarat High Court in Gujarat State Road Transport Corporation v. Jamnadas Beharibhai, 1983 Lab IC 1349, and held that a person who is found guilty of misconduct or misappropriation of public money has no right to be reinstated in service. The learned single Judge in this context followed the decision of Andhra Pradesh High Court in Andhra Pradesh State Road Transport Corporation v. Additional Judge, Labour Court cum-Industrial Tribunal, 1986 (3) FJR 230 ; Municipal Corporation of City of Ahmedahad v. Hussainmiya Chandmiya, 1987 Lab IC 1564; and the earlier decision in Gujarat State Road Transport Corporation v. Jamnadas Behari Bhai (supra) and the Supreme Court decision in D C. Roy v. The Presiding Officer, Labour Court, AIR 1976 SC 1760, where it was observed that a person found guilty of misconduct in relation to dishonesty deserved a punishment of dismissal and in such circumstances such a punishment is neither harsh nor unfair. 20. In Rajasthan State Road Transport Corporation v. Mool Singh, 1995 Lab IC 771, a Division Bench of our Court in a case where the Labour Court finding the workman guilty of charge of misconduct ordered his reinstatement on the reasoning inter alia that in view of overall circumstances and the rising prices and unemployment, the workman deserved one more chance to improve, held that as regards the legality of the award, the reason given by the Labour Court is no reason in the eye of law particularly when the workman had been punished for misconduct on earlier two occasions and the award of the Labour Court was accordingly set aside to the extent of reinstating the workman. The Division Bench in this context followed the decisions in Rajasthan State Road Transport Corporation v. Habib Khan, (supra), Christian Medical College Hospital Employees' Union v. Christian Medical College, (1988-I-LLJ-263) and Rajasthan State Road Transport Corporation, Alwar v. Kailash Chandra Sharma. (supra). 21. In Rajasthan State Road Transport Corporation v. Shri Asrar Mohammad, 1992 WLC (UC) 67, a learned single Judge of our Court observed that the power of the Labour Court under Section 11A of the Industrial Disputes Act is not uncanalised, unguided and unlimited and the Labour Court cannot function arbitrarily and interfere with every decision of the Management regarding dismissal or discharge of the workman, arrived at in the disciplinary enquiry. Before setting aside the order of dismissal or removal from service and awarding a lesser punishment, the Labour Court has to satisfy itself that the punishment imposed by the Management is highly disproportionate to the degree of guilt of the workman concerned and in coming to that conclusion, the Court is expected to give reasons for its decision. Where the Labour Court came to the conclusion that the workman was found guilty previously on nine occasions and the punishment of warning and removal from service were also passed, which fact has been admitted by the workman himself in his statement before the Tribunal, but the Tribunal set aside the order of removal or dismissal and ordered for reinstatement of the workman only on the ground that a last opportunity may be given to him, it was observed that when he did not mend himself on the previous nine occasions and he repeated the same performance, he was not entitled to any leniency or a lesser punishment. It was further observed that the Bus Conductor pocketed the money without issuing tickets to the passengers and his reinstatement would enable him to involve in the same malpractice in future and, therefore, his reinstatement would involve great risk since despite repeated opportunities he could not correct himself. 22. In Christian Medical College Hospital Employees' Union v. Christian Medical College, Vellore Association, (supra) it was observed that the power of the Industrial Tribunal or the Labour Court under the Industrial Disputes Act is not unlimited, unguided and uncanalised. Section 11A of the Act cannot be considered as conferring an arbitrary power on the Industrial Tribunal or the Labour Court. The power under Section 11A has to be exercised judicially and the Industrial Tribunal or the Labour Court is expected to interfere with the decision of a Management under Section 11A only when it is satisfied that the punishment imposed by the Management is highly disporportionate to the degree of guilt of the workman concerned. The Industrial Tribunal or the Labour Court has to give reasons for its decision. The decision of the Industrial Tribunal or the Labour Court is again subject to judicial review by the High Court and the Supreme Court, The Industrial Tribunal or the Labour Court cannot function arbitrarily and interfere with every decision of the Management as regards dismissal or discharge of a workman arrived at in a disciplinary enquiry. The power exercisable by the Industrial Tribunal or the Labour Court cannot, therefore, be equated with the power of 'veto'. 23. In The Gujarat Mineral Development Corporation v. Shri P.H. Brahmbhatt, (1974-I-LLJ-97) (SC) it was observed, that extent of the power of the Labour Court to interfere in the discharge order passed by the employer is limited to such cases where the order is punitive, mala fide, vindictive or arbitrary provided that in such case the employer has not lost confidence in the employee. Although the Supreme Court can interfere under Article 136 when there is excess of jurisdiction or substantial error of law or principle of law or of gross and palpable error resulting in manifest injustice, the Supreme Court can also consider whether the finding is wholly inconsistent with the materials on record or the lower Court has dealt with the evidence in a perfunctory manner. 24. In Rama Kant Misra v. State of Uttar Pradesh, (1982-II-LLJ-472) (SC) it was held that the punishment must be, proportionate to the misconduct and the facts and circumstances of the case must justify dismissal. The dismissal for use of indiscreet, indecent or threatening language to superior only once in the course of long unblemished service was to be held as disproportionately excessive and instead withholding of two increments with future effect was found by the Supreme Court to be proper punishment. It was observed that interference with the Management's decision is called for under certain kinds of dismissal. The power the Tribunal or the Labour Court in this regard under Section 11A of the Industrial Disputes Act, if exercised improperly or unjustifiably, is definitely open to interference by the Supreme Court under Article 136 of the Constitution of India. 25. In State Bank of India v. Samarendra Kishore Endow, (1994-I-LLJ-872)(SC) it was observed that the imposition of appropriate punishment is within the discretion and judgment of the Disciplinary Authority. It may be open to the Appellate Authority to interfere with it but not to the High Court or the Administrative Tribunal for the reason that the jurisdiction of the Tribunal is similar to the powers of the High Court under Article 226. The power under Article 226 is one of judicial review. It is not an appeal from a decision but a review of the manner in which the decision was made. The power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the authority after according a fair treatment reaches on a matter which it is authorised by law to decide for itself, a conclusion which is correct in the eye of law. The decision in Bhagat Ram v. State of H. P. (1983-II-LLJ-1) (SC) was explained and distinguished in the said case and it was observed that the said judgment is no authority for the proposition that the High Court or the Tribunal has jurisdiction to impose any punishment to meet the ends of justice. The Supreme Court in Bhagat Ram's case (supra) exercised suitable jurisdiction under Article 136 of the Constitution, but it was observed that the High Court and the Tribunal has no such power or jurisdiction. It was observed that there are certain observations in Union of India v. Tulsiram Patel, (1985-II-LLJ-206) (SC), which appear to say that the Court can interfere where the penalty imposed is arbitrary or grossly excessive or disproportionate or not warranted by the facts and circumstances of the case or the requirements of that particular Government service. The case of Thulsiram Patel (supra) stands on a different footing because it deals with the situation where the employees were removed from service without holding enquiry. The observations made in that case are not relevant to cases where penalty is imposed after regular enquiry. On the same reasoning, the observations made in Shankar Das v. Union of India, (1985-II-LLJ-184)(SC) cannot also be applied. In the facts and circumstances of the case in State Bank of India v. Samarendra Kishore Endow (supra) the punishment of removal imposed on the respondent was found to be harsh, but it was observed that this is a matter which the Disciplinary Authority or the Appellate Authority should conuder and not the High Court or the Administrative Tribunal. The proper course is to send the matter back either to the Disciplinary Authority or the Appellate Authority to impose appropriate punishment. In the facts of the reported case, the Appellate Authority was directed to consider whether a lesser punishment is called for in the facts and circumstances of the case. It was further observed in the reported case that as regards failure to supply the copy to the charged employees of the departmental enquiry report and where the punishment was imposed prior to November 20, 1990, non supply of the copy of the departmental enquiry report to the delinquent employee did not invalidate the enquiry. 26. In Union of India v. B.C. Chaturvedi (1996-I-LLJ-1231) (SC) it held that the judicial review is of decision-making process, but where the findings of the Disciplinary Authority or the Appellate Authority are based on same evidence, the Court/Tribunal cannot reappreciate the evidence and substitute its own findings and it was held that the Court/Tribunal has no power to interfere with the findings of the Disciplinary Authority or the Appellate Authority by reappreciating the evidence which was led in the departmental enquiry. Relying on the decision in Shivdeo Singh v. State of Punjab, AIR 1963 SC 1909, it was observed by HANSARIA, J. in said reported case that the mere fact that there is no provision parallel to Article 142 relating to the High Courts, can be no ground to think that they have not to do complete justice and if moulding of relief would do complete justice between the parties, the same cannot be ordered. Absence of provision like Article 142 is not material. The High Courts too can exercise power of review which inheres in every Court of plenary jurisdiction. The power to do complete justice also inheres in every Court, not to speak of a Court of plenary jurisdiction like a High Court. Of course, this power is not as wide as which the Supreme Court has under Article 142. That however is a different matter. If the power of modification of punishment/penalty were to be available to the Supreme Court only under Article 142, a very large percentage of litigants would be denied this small relief merely because they are not in a position to approach the Supreme Court, which may, inter alia, be because of the poverty of the person concerned. Following the ratio of Bhagat Ram v. State of H. P., (supra) Rustom Cavasjee Cooper v. Union of India, AIR 1970 SC 564; and Maneka Gandhi v. Union of India, AIR 1978 SC 597, it was observed that the High Court would be within its jurisdiction to modify the punishment/penalty by moulding the relief. In a case of dismissal, Article 21 gets attracted and in view of the interdependence of fundamental rights, the punishment/penalty awarded has to be reasonable and if it be unreasonable, Article 14 would be violated and if Article 14 were to be violated a High Court can take care of the same by substituting, in appropriate case, a punishment deemed reasonable by it. It was further observed that Section 11A of the Industrial Disputes Act confers power on the Tribunal/Labour Court to apply its mind to the question of proportionality of punishment/penalty. If need for maintenance of office discipline be the reason of adopting a strict attitude qua the public servants, discipline has to be maintained in the industrial sector also. The availability of appeal etc. to public servants does not make a real difference as the Appellate Revisional Authority is known to have taken a different view on the question of sentence only rarely. But for the self-imposed limitation while exercising power under Article 226 of the Constitution, there is no inherent reason to disallow application of judicial mind to the question of proportionality of punishment/penalty. But then, while seized with this question as a Writ Court interference is permissible only when the punishment/penalty is shockingly disproportionate. In the facts and circumstances of the reported case, the majority of the Hon'ble Judges observed that the punishment of dismissal from service to one of compulsory retirement as was done by the Tribunal was found not proper. It was further observed that the Disciplinary Authority and on appeal the Appellate Authority being fact finding authorities have the exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of misconduct. The High Court/Tribunal while exercising the power of judicial review cannot normally substitute their own conclusion on penalty and impose some other penalty. If the punishment imposed by the Disciplinary Authority /Appellate Authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief either directing the Disciplinary Authority/Appellate Authority to reconsider the penalty imposed or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof. 27. In Indian Oil Corporation Ltd. v. Ashok Kumar Arora, 1997 (2) JT(SC) 367, three Hon'ble Judges' Bench of the Supreme Court held that the High Court committed serious jurisdictional error in interfering with the quantum of punishment imposed on the employee. It was observed that there is a limited jurisdiction only where the enquiry is vitiated because of non-observance of principles of natural justice or denial of reasonable opportunity or no evidence is there or the punishment is disproportionate. That was a case where the High Court erred in interfering with the punishment awarded overlooking the findings of the Enquiry Officer that the respondent was instrumental in obtaining forged medical bill not only for himself but also for other employees and the order of the High Court reinstated the respondent-workman to his service and made him entitled to backwages by way of arrears of salary and allowances etc. to which he would have been entitled had he not been placed under suspension and dismissed from service. The Supreme Court observed that in such cases of departmental enquiries and the findings recounted therein, the High Court does not exercise the powers of the Appellate Court/Appellate Authority. The jurisdiction of the High Court in such cases is very limited for instance where it is found that the domestic enquiry is vitiated because of non-observance of principles of natural justice, denial of reasonable opportunity, findings are based on no evidence and or the punishment is totally disproportionate to the proved misconduct of an employee. There is catena of judgments of the Supreme Court which had settled the law on this topic and it is not necessary to refer to all these decisions. Suffice it to refer to a few decisions of the Supreme Court in State of Andhra Pradesh v. S. Sree Rama Rao, (1964-II-LLJ-150) State of Andhra Pradesh v. Chitra Venkata Rao, (1976-I-LLJ-21) Corporation of City of Nagpur v. Ramachandra, (198l-II-LLJ-6) and Nelson Motis v. Union of India, (1992-II-LLJ-744). It was observed in the said reported cases that the High Court had committed serious jurisdiction at error while interfering with the, quantum of punishment. There is neither any discrimination resorted to by the Disciplinary Authority nor the punishment awarded to the respondent-employee was disproportionate to his misconduct and, therefore, the judgment and order of the High Court was found unsustainable. 28. The learned single Judge accordingly made a reference to a larger Bench on the following four points: "(a) WHETHER if the misconduct is proved either in the domestic enquiry or before the Labour Court itself would not be a ground for non-interference with the order of discharge or dismissal by Labour Court in exercise of its power conferred under Section 11A of the Act of 1947? (b) WHETHER there are definable parameters or recognised guidelines for exercise of jurisdiction of Labour Court, Tribunal or National Tribunal under Section 11A of the Act of 1947 where misconduct is proved either in the domestic enquiry or before the Labour Court, Tribunal or National Tribunal? (c) WHETHER this Court in exercise of its supervisory writ jurisdiction under Articles 226 and 227 of the Constitution where a petition is filed seeking a relief to quash the award given by Labour Court, Tribunal or National Tribunal under Section 11A of the Act of 1947 has limited jurisdiction to demolish the impugned award which according to its opinion is palpably erroneous and remit the matter to Labour Court, Tribunal or National Tribunal for fresh disposal in accordance with law instead of substituting with its own award in place of one made by such Tribunal. (d) WHETHER compensation to the extent of damage caused to an employer and to give an opportunity to a workman to reform himself by proving loyal and disciplined workman by adopting reformative theory are only relevant considerations treating Section 11A of the Act of 1947 as a beneficial piece of legislation of the Labour Court, Tribunal or National Tribunal are also required to address itself while passing an order for reinstatement after setting aside the punishment of discharge or dismiss a imposed by Disciplinary Authority about loss of reputation caused to the employer particularly in case of bus driver where the reputation of Corporation has been lowered down in the estimation of the passengers boarding the bus as well as public at large who saw the accident caused due to rash and negligent driving of the bus drivers; conduct and act inconsistent with his duty; act of conduct making it unsafe for the employer to retain his service; act or conduct of the workman so grossly immoral that all reasonable men may not like to keep in service; an act or conduct of the workman which may tend to disturb the peace at the place of employment; gross insubordinate behaviour of workman and his habitual negligence are also relevant considerations under the aforesaid Section?" 29. Our pointed discussion to the question on which the learned single Judge made a reference are accordingly as follows:-- (a) On the question whether on the misconduct being proved either in the domestic enquiry or before the Labour Court itself whether the Labour Court should while exercising its power conferred under Section 11A of the Industrial Disputes Act exercise a policy of noninterference with the order of discharge or dismissal, our answer is that there is no hard and fast rule. The Labour Court is vested with the discretion in the matter which is to be judicially exercised in the light of the earlier decisions of the Hon'ble Supreme Court as discussed above. The facts of each case may be distinguishable and may not be identical with the later one. It is more or less an acknowledged principle of law that where the Labour Court finds the punishment/penalty shocking the conscience, harsh or unreasonable, it is bound to act as a matter of course, but even otherwise it has the scope and ambit to appreciate as to whether it would exercise its discretion at all under Section 11A of the Industrial Disputes Act where the misconduct is proved but the ends of justice demands a lesser punishment in accordance with law. That is all about the Labour Court or the Industrial Tribunal exercising the powers under Section 11A of the Industrial Disputes Act where the misconduct is proved either before the domestic enquiry or before the Labour Court itself. (b) On the question as to whether there are definable parameters or recognised guidelines for exercise of jurisdiction of the Labour Court or Tribunal or National Tribunal under Section 11A if the Industrial Disputes Act, 1947 where misconduct is proved either in the domestic enquiry or before the Labour Court or Tribunal or National Tribunal, we are of the considered view that such Labour Courts or Tribunals or National Tribunals have been exercising such jurisdiction to give appropriate relief in case of discharge or dismissal of workmen. Where in the course of adjudication of proceedings, such Labour Court, Tribunal or National Tribunal is satisfied that the order of discharge or dismissal was not justified in the facts and circumstances of the case, only in such matters it can direct reinstatement of the workman on such terms and conditions as it thinks fit or give such other relief to the workman including the award of; any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require. But it has to be borne in mind that such Labour Court, Tribunal or National Tribunal shall rely only on the materials on: record and shall not take any fresh evidence in relation to the matter. The powers of the Courts or Tribunals or National Tribunals under Section 11A of the Industrial Disputes Act are not arbitrary, unguided and uncanalised as was observed in Hospital Employees' Union v. Christian Medical College, (supra). Section 11A of the Act cannot be considered as conferring an arbitrary power on the Industrial Tribunal or the Labour Court. The power under Section 11A has to be exercised judicially and the Industrial Tribunal or the Labour Court is expected to interfere with the decision of a Management under Section 11A only when it is satisfied that the punishment imposed by the Management is highly disproportionate to the degree of guilt of the workman concerned. The Industrial Tribunal or the Labour Court has to give reasons for its decision. The decision of the Industrial Tribunal or the Labour Court is again subject to judicial review by the High Court and the Supreme Court. The Industrial Tribunal or the Labour Court cannot function arbitrarily and interfere with every decision of the Management as regards dismissal or discharge of a workman arrived at in a disciplinary enquiry. The power exercisable by the Industrial Tribunal or the Labour Court cannot, therefore, be equated with the power of 'veto'. (c) On the third question referred to as to whether this Court in exercise of supervisory writ jurisdiction under Articles 226 and 227 of the Constitution where a petition is filed seeking a relief by way of quashing of award given by the Labour Court, Tribunal or National Tribunal under Section 11A of the Industrial Disputes Act has limited jurisdiction to interfere with the impugned award or not where according to the High Court such award is palpably erroneous and whether in such case it can substitute its own order in place of one made by such Labour Court, Tribunal or National Tribunal, the law is indeed clear. As a general rule, the High Court would not interfere unless the order of the Labour Court, Tribunal or National Tribunal is perverse or not based on any evidence or grossly illegal or based on a complete misconception of law or that no reasonable man would come to the conclusion to which the Labour Court, Tribunal or National Tribunal has arrived at. There is no hard and fast rule that it has always to send the matter back to the Labour Court, Tribunal, Tribunal or National Tribunal for appropriate adjudication and for passing appropriate punishment in accordance with law, but in order to avoid delayed justice and for vindication of speedy and appropriate relief, the High Court may in some cases incorporate its own findings which it may appear to be just and proper but that should not be followed as a general rule but more as an exception. (d) We have applied our mind and we do not find any justification to answer the fourth question that taking any view the question of loss of reputation caused to the employer particularly in the case of bus driver which would put a fetter to the exercise of discretion which is vested in the Labour Court or Tribunal or National Tribunal under Section 11 of the Industrial Disputes Act, if the Labour Court, Tribunal or National Tribunal is satisfied that the order of discharge or dismissal was not justified, it may set aside the order of dismissal or discharge and direct the reinstatement of the workman on such terms and conditions as it thinks fit and proper and give such relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may justify without relying on any fresh evidence in relation to the matter. If in the facts and circumstances of the case the employee has been asked to recompensate the employer with the damage caused to the employer and give the workman an opportunity to reform himself, we do not find any justification to interfere or lay down any hard and fast principle that such an opportunity should never be given or that it was beyond the competence of a beneficial legislation like Section 11 of the Industrial Disputes Act. The loss of reputation of the employer is not always the prime consideration in this particular perspective, more so in a case of bus driver where the reputation of the RSRTC could not have been taken to lower down in the estimation of the passengers or public at large seeing the accident and also finding the reinstatement of the service of the workman despite his misconduct having been proved before the appropriate forum in this particular perspective, we need not answer the fourth question at all in the manner it has been posed because it needs no such reiteration of any principle by way of guidelines where it has no such basis in the eye of law. It if really appears before any fact finding forum including the Labour Court, Industrial Tribunal or National Tribunal that there is such an act or conduct making it unsafe for the employer to retain the workman in service or the misconduct is of such degree or magnitude or the conduct or act of the workman is so grossly immoral that he cannot be kept in service at all or an act or conduct of the workman is so which tends to disturb the peace at the place of employment if there is gross insubordinate behaviour of the workman and there is habitual negligence on the part of the workman, these may be appropriate considerations indeed to be kept in mind before the discretion under Section 11A of the Industrial Disputes Act is exercised by the Labour Court, Tribunal or National Tribunal, but what really constitutes a gross insubordinate behaviour or habitual negligence are also to be assessed in the facts and circumstances of each case and there may not be any blanket order in this regard within the fold of which we can cover every case so as to make the workman concerned disentitled to any relief on such a plea. 30. In the light of the discussion aforesaid our conclusion should be,-- (a) With regard to question (a) even if the misconduct is proved there can be an interference for good and sufficient reasons under Section 11A of the Act of 1947. (b) With regard to question (b) the power under Section 11A has to be exercised judicially and the Labour Court, Tribunal or the National Tribunal is only expected to interfere with the decision of the Management only when it is satisfied that the punishment imposed is shockingly disproportionate to the degree of guilt of the workman concerned. It cannot be equated with the power or 'veto'. (c) With regard to question (c) the High Court in its exercise of supervisory writ jurisdiction under Articles 226 and 227 of the Constitution of India has indeed a limited jurisdiction to interfere with the impugned award. As a general rule, the High Court will not interfere unless the order of the Labour Court, Tribunal or National Tribunal is perverse or not based on any evidence or grossly illegal or based on a complete misconception of law or it is such that no reasonable man would come to the conclusion about. There is no hard and fast rule that the High Court is always to send the matter back to the Labour Court or Tribunal or National Tribunal for appropriate adjudication and for passing appropriate punishment in accordance with law. (d) With regard to question (d) we need not specifically answer the question because we think we should not look at the problem from the particular angle that the reputation of the Corporation has been lowered down in the estimation of the passengers boarding the bus as well as the public at large. 31. In the facts and circumstances of the present case, we have assessed the quantum of punishment that was initially passed to which the Labour Court has made an interference by exercising its discretion under Section 11A of the Industrial Disputes Act and we do not think that there is any gross illegality done so as to call for our inference as alleged or at all. 32. Both the writ applications accordingly stand dismissed.

Author: C M.G. Mukherji

Rajasthan State Road Transport ... vs Gopal Singh And Anr. on 24 October, 1997

Rajasthan High Court

ORDER B.K. Taimni, Member 1. This Complaint has been filed by the Complaint, Shri Nanak Chand Goel against Haryana Urban Development Authority (HUDA) alleging deficiency in service. 2. According to the Complainant in respect of an advertisement of allotment of plots he applied for allotment for a 160 Sq. yards. Plot in Sector 19 of the Urban Estate in Faridabad and deposited Rs. 8,000/- vide report dated 6.2.73, which was allotted to him on 7.2.73. The Complainant further paid Rs. 320/- @ 2/- per sq. yard on account of enhancement in the land acquisition compensation. Again in February, 1986 a further sum of Rs. 3382.40 was demanded on account of enhancement in compensation by the District/High Court. The Complainant requested in March, 1987 to hand over the possession. But upon visiting the site found it under encroachment. In the meantime under pressure from the Respondent, the Complainant deposited another sum of Rs. 294/- an extension fee. After protracted correspondence and further demands by the Respondent, the Complainant was allotted an alternative plot No. 879. P in Sector 9. Against various demands the complainant deposited/sent Rs. 10,000/- on 6.1.94 and Rs. 2,300.95 on 28.2.94. In spite of these payment vide letter dated 29.7.96 the Respondent informed the Complainant, even this Plot-879-P cannot be given as it was under litigation. Thus frustrated, the Complainant filed the complaint before us praying for award of Rs. 34,75,042.00 break of which is given below:- INCREASE IN COST OF CONSTRUCTION:- Cost of construction for 2 & 1/2 storeyed Building + (plus) Basement also at present 2349 Sq. Feet @ 600/- per sq. foot. Rs. 14,09,400/- 972 sq. feet @ 500/- per sq. foot Rs. 4,86,000/- Rs. 18,95,400/- Less cost of construction in the year 1976 i.e. 2349 sq. feet @ Rs. 125/- per sq. foot = Rs. 2,93,625/- 972 Sq. feet @ Rs. 90/- per sq. foot Rs. 87,480/- Rs. 3,81,105/- Rs. 15,14,295/- Compensation claimed for mental agony and physical torture for possession of plot from 1977 onwards till 1998 for visiting more than 200 times including set back to the career and loss of promotion due to frequent absence from duty. Rs. 11,00,000/- Rent for accommodation from 1976 to 1998 @ Rs. 2000/- per month. Rs. 2,64,000/- Expenditure on Journey and correspondence with HUDA for the possession of the said plot including litigation charges. Rs. 20,000/- Loss of Income-tax for non-availment of Capital gain under Section 54-F of the Income Tax Act due to non-construction of the house During the allowed period, i.e. three years. Rs. 27,430/- Out of pocket expenses incurred on more than 200 days Interest on the amount already paid to HUDA for allotment of plot and time to time payment of enhancement money to HUDA & 18% per Annum. Rs. 5,37,317.00 Rs. 34,75,042.00 3. In its written version filed by the Respondent, they corroborated the contents of the complaint with a rider that the situation which arose was beyond their control. Vide their letter dated 31.12.98, they have already offered plot No. 931-B in Sector 19 on the original terms and conditions of the allotment. The area has been demarcated on the ground. 4. We have heard the parties and on perusal of the material on record, we find that it is admitted case of deficiency in service where the Complainant has been waiting for a plot since 1973. In view of this commission's order passed in HUDA v. R.P. Chawla (Revision Petition No. 547/97) the Respondent is directed to deliver and the Complainant is directed to take the possession of plot No. 931-B in Sector 19 within four weeks of this order. The Respondent shall also pay interest @ 18% p.a. on the deposited amount of Rs. 21,000/- from the respective date of deposits till the date of payment. 5. No costs.

Shri Nanak Chand Goel vs Huda And Anr. on 4 March, 2002

National Consumer Disputes Redressal

JUDGMENT J.C. Verma, J. 1. The grievance of the petitioner is that she had applied for purchase of the public shares from respondent No. 1, Lan Exda Industry, 201, II Floor, Babukhan Estate, Bashir Bagh, Hyderabad. She along with Meena Devi had sent an amount of Rs. 2,500 on May 26, 1993, for purchasing 200 shares each. The petitioner and Meena had also approached the consumer courts but it was held by the consumer court that disputes raised by the petitioner are not maintainable before the consumer court. The petitioner has filed the present writ petition for a direction to respondent No. 2 to initiate criminal proceedings under Section 621 of the Companies Act for proceeding against respondent No. 1 under Section 73(2B) of the Companies Act. It is stated that the petitioner had approached the SEBI as well in this regard but no action had been taken by the SEBI. 2. Written statement has been filed by respondent No. 2. Nobody appears on behalf of respondent No. 1, A reply on behalf of respondent No. 1 has also been filed. The plea taken by respondent No. 1 in the reply is reproduced as under : "(5) Lan Inv. Pvt. Ltd. had in turn sent letter reference No. 30105780/29466327, dated August 10, 1993, to the complainant informing that she had been allotted 200 shares in LEIL upon payment of application money Rs. 2,500 and upon payment of allotment money at Rs. 2,500 against application for 200 equity shares by the complainant will be transferred in his/her name by the original allottee being Lan Inv. Pvt. Ltd. ('LIPL'). (copy of letter enclosed as exhibit 'B'). Despite repeated requests by Lan Inv. Pvt. Ltd. ('LIPL') the complainant did not forward the allotment money and did not return signed transfer deed, as required for effecting a transfer in her favour." 3. Counsel for the petitioner states that he had not been issued any share original or duplicate by the company for whose share the petitioner had applied and he is not interested in any duplicate shares of any other company. 4. The contention of the petitioner has force. If the petitioner had not been allotted the original shares, she was entitled to refund of the amount within the stipulated period of 78 days as held by the apex court in Raymond Synthetics Ltd. v. Union of India [1992] 73 Comp Cas 762 ; AIR 1992 SC 847. It shall be appropriate in the present case that direction be issued to respondent No. 1 to refund the amount to the petitioner with interest at the rate of 15 per cent, from the due date till the payment. 5. Copy of this order be sent to respondent No. 2 by post by the registry. 6. The amount shall be refunded within two months. 7. Respondent No. 2 is also directed to take all necessary steps to assist the petitioner to get the refund. 8. The writ petition is disposed of at the admission stage with no order as to costs. 9. This decision shall not be taken as a precedent in future. This order is passed only in the present case.

Author: J Verma

Smt. Shanti Vijay vs Lan Exda Ind. Ltd. And Ors. on 29 August, 1997

Rajasthan High Court

Civil Revision No. 1914 of 2006 1 In the High Court of Punjab and Haryana, at Chandigarh. Civil Revision No. 1914 of 2006 Date of Decision: 28.11.2008 Naresh Kumar ...Petitioner Versus Baseshar Nath Trust (Registered) Ambala Cantt. and Others ... Respondents CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. Avnish Mittal, Advocate for the petitioner. Mr. Sanjay Vij, Advocate for respondent No.1 None for respondents No.2 to 5. Kanwaljit Singh Ahluwalia, J. (Oral) The present revision petition has been filed by the tenant against the concurrent findings recorded by the two Courts below that Baseshar Nath Trust, Ambala Cantt (hereinafter referred to as "the Trust") is owner and landlord of the property and plea raised by the tenant that one Inder Parkash, Trustee, was landlord in his individual capacity has been negated. In the present case, since no rent was paid by the tenant on the ground that the Trust is not a landlord, his eviction has been ordered for denial of relationship of landlord and tenant. The Trust building had let out a room to Rameshwar Dass. Rameshwar Dass during the Civil Revision No. 1914 of 2006 2 proceedings before learned Rent Controller was represented by his legal representatives. The present rent petition was filed by Jagat Parkash who is said to be the President of the Trust, as he has been stated to be authorized vide resolution dated 28.3.1994 to file and prosecute the petition. It was stated that monthly rent was Rs.200/- besides taxes at the rate of 5% but the tenant had not paid the rent since 1.11.1994 to 30.4.1996. It was stated that he is in arrears of rent of Rs.3,600/- on account of rent and Rs.180/- on account of taxes. Written statement was filed to the eviction petition in which it was stated that neither the petitioner is a registered Trust nor Jagat Parkash is its President. Resolution authorizing Jagat Parkash to pursue the petition was also denied. It was stated that the petitioner has been tenant of one Inder Parkash who used to issue receipts after collecting the rent. Therefore, it was stated that since the petition has not been filed by Inder Parkash or his legal representatives, the same is bound to be dismissed and there is no relationship of landlord and tenant between the respondent and petitioner-Trust. Landlord examined Harkesh Kumar, Clerk, Cantonment Board, Ambala Cantt as PW.1 to state that in the records maintained by the Cantonment, the property is owned by the Trust. PW.2 Dalbir Singh, Clerk, Office of Registrar, Ambala, produced settlement deed Ex.P2 dated 12.3.1945. Jagat Parkash, President of the Trust himself appeared as PW.3. He proved various documents to say that property vests in the Trust and the Trust is the landlord. It was further stated that the rent was being collected by Inder Parkash in his capacity of settlor and Trustee Civil Revision No. 1914 of 2006 3 of the petitioner-Trust. Inder Parkash was brother of Jagat Parkash and Inder Parkash had died. After conclusion of evidence of the landlord, Naresh Kumar son of Rameshwar Dass appeared as RW.1. He relied upon two receipts Ex.R1 and Ex.R2 to state that they were issued by Inder Parkash in his individual capacity. Learned Rent Controller relied upon the deed of settlement Ex.P2 and other evidence and come to conclusion that the Trust was the owner and landlord. It further relied upon the cross-examination of the tenant that he was tenant in the premises from the last 20 years and he used to pay the rent. It further held that in a previous litigation also, a written statement Ex.P7 was filed. A similar plea was raised but rent was tendered in the Court under protest. It further held that since there is a documentary evidence and the petitioner-Trust is registered one, therefore, it was the owner and landlord of the premises. To assail this, Mr. Mittal contended before me that receipts Ex.R1 and Ex.R2 proved that the rent was being collected in individual capacity by Inder Parkash as there is no evidence that the rent collected by Inder Parkash was deposited in the bank account of the Trust and was accounted for in the account books of the Trust. This plea of Mr. Mittal cannot be accepted. The Trust was registered in 1945. Ex.P2 deed of settlement show that Inder Parkash along with Jagat Parkash was a Trustee. The premises has been led out by the Trust. If a Trustee perform any act on behalf of the Trust, the same cannot be construed as an act in the individual capacity. Inder Parkash was none else but brother of Jagat Parkash who had pursued the petition on the basis of Civil Revision No. 1914 of 2006 4 Trust Deed. Act of one Trustee bind the other Trustee. Therefore, it was too naïve for the tenant to doubt the credentials of the landlord-Trust. Mr. Mittal has relied upon Ravi Ahuja v. Shri Ram Leela Committee, Morinda (2005-1) 139 The Punjab Law Reporter634 to say that time was granted to the tenant to pay the arrears of rent but in this case no time has been granted. Therefore, an opportunity be afforded to the tenant, and time be granted to deposit rent. Mr. Mittal also relied upon another judgment Rajinder Lal v. Gopal Krishan 2006 (1) Rent Control Reporter 438 to state that an opportunity ought to be given to the tenant. These are the cases where the rate of rent was disputed not the relationship of landlord and tenant. Therefore, they are not applicable to the case of the petitioner. Learned counsel appearing for the tenant has further relied upon Sant Lal v. Prem Chandel (Smt.) 1996(1) Rent Control Reporter 322 to contend that owner and landlord can be different and, therefore, owner cannot be assumed to be landlord. He further relied upon K.D.Dewan v. Harbhajan S. Parihar 2002(1) Rent Control Reporter 214 that a person need not necessarily be owner and there can be another person as landlord. Therefore, it has been stated that Inder Parkash was the landlord and the Trust was not a landlord. As held earlier, Inder Parkash was acting on behalf of the Trust being a Trustee, therefore, individual capacity of the landlord cannot be vested upon him. The concurrent finding of fact to this extent after appreciating the evidence cannot be disturbed in the revisional jurisdiction because as the counsel say that different view is possible. The view formulated by the two Courts below is just and is not perverse. Civil Revision No. 1914 of 2006 5 Therefore, no interference is warranted. Hence, the present revision petition is dismissed. At this stage, learned counsel for the petitioner states that adequate time be granted to the petitioner to make alternative arrangement. After hearing learned counsel for the parties, two months time is granted to the petitioner to vacate the premises. (Kanwaljit Singh Ahluwalia) Judge November 28, 2008 "DK"

Naresh Kumar vs Baseshar Nath Trust (Registered) ... on 28 November, 2008

Punjab-Haryana High Court

(iii) Sonerao Sadashivrao Patil and Anr. v. Godawaribai Laxmansingh Gahirewar and Ors., AIR 1999 Bombay 235. In this judgment it has been held as under: (ii) That the top officials of the recognised Union assured the applicant that his case will be finally and properly disposed of during the Divisional P.N.M. As such, he should wait till the disposal of his Promotion and Seniority Issue by JUDGMENT Gopal Singh, Member (A) 1. Applicant, Bhanwar Lal Mundan, has filed this application under Section 19 of the Administrative Tribunals Act, 1985, praying for setting aside the impugned orders dated28.4.1998,15.3.1993 and 17.11.1994 at Annexure A/1, A/2 and A/3 respectively and for a direction to the respondents to declare the applicant as an incumbent for the post of Permanent Way Mistry (PWM) right from 10.4.1981, and accordingly assign correct place in the seniority list dated 15.3.1993, with all consequential benefits. The applicant has also filed a Misc. Application No. 190/98 in this O.A. praying for condonation of delay in filing the O.A. 2. Applicant's case is that he was initially appointed as Gangman in the Railway on 15.1.1966, and while he was working as store issuer on ad hoc basis in Metropolitan Transport Project (MTP) on deputation, he was trade tested for the post of Permanent Way Mistry (PWM) and on passing the said trade test was appointed as PWM vide respondents' letter dated 10.4.1981 (Annexure A/4). Thereafter, the applicant requested the respondents many a time to depute him for training to Civil Engineering Training Academy (CETA) Kanpur and ultimately he was deputed for the said training vide respondents' letter dated 27.12.1991 (Annexure A/9) treating him as having passed the suitability test under respondents' letter dated 10.4.1981. The applicant was promoted as PWT-III vide order dated 17.11.1994 (Annex A/3). The contention of the applicant is that he should have been sent for training immediately after his passing the trade test on 10.4.1981. Since he was not sent for training in time, many of his juniors after passing the said training course earlier to the applicant, have become senior to him. Therefore, the applicant has also challenged the seniority list dated 15.3.1993. 3. In the counter, it has been contended by the respondents that the application is hopelessly barred by limitation. The applicant has not challenged the seniority list dated 15.3.1993, and his promotion order dated 17.11.94 in time. The applicant had never represented against the seniority list dated 15.3.1993. Even the alleged representation dated 30.10.1995, regarding the applicant's seniority was never received by the respondents. It has also been averred by the respondents that no request was made to respondent No. 2, by the applicant for deputing him for Training to CETA, Kanpur. The claim of the applicant for booking for training on 10.4.1981, has no foundation as he was neither selected against the direct recuitment quota nor was promoted against Twenty five per cent regular promotion quota. On 10.4.1981, he was just allowed to hold the post as an ad hoc officiating arrangement. The application is thus devoid of any merit and deserves to be dismissed, aver the respondents. 4. We have heard the learned Counsel for the parties and perused the records of the case. 5. We would deal with the preliminary objections of the respondents first. The seniority list published on 15.3.1993, was never challenged before the respondents in as much as no representation was filed in regard to placement of the applicant in the seniority list. Similarly, promotion order dated 17.11.1994, was also not contested. Receipt of alleged representation dated 30.10.1995, by the applicant has also been denied by the respondents. Moreover, there was no occasion (to represent) on 30.10.1995 to file any representation. Learned Counsel for the applicant submitted that the applicant came to know of the impugned seniority list in 1995 is not tenable as he had already earned a promotion to the post of PWI-III on 17.11.1994, on the basis of said seniority list. Further, the applicant is praying in the application filed on 23.11.1998 for according him seniority in the PWM cadre with effect from 10.4.81, the date he was appointed as such in the MTP. The respondents have emphatically denied receipt of any representation in this regard. The applicant, however, maintains that he had made many representation to depute him for training for promotion course and finally he had taken up the matter through the Permanent Negotiation Machinery (PNM) where his claim was rejected vide Annexure A/1 & A/2. In this connection it is pointed out that repeated representations do not give fresh cause of action in the hands of the applicant. The grievance first arose in 1983-84, when some of his colleagues were sent for training to CETA, Kanpur. We have, therefore, no hesitation to observe that the applicant was sleeping over his rights all these years. Thus, the application suffers from laches and delays and can be dismissed on this ground alone. Judgment in support of the contention cited by the learned Counsel for the applicant are discussed in subsequent paragraphs. 6. (i) A. Sagayanathan and Ors v. Divnl Personal Officer, Southern Railway, AIR 1991 SC 424. In this case, it has been held that promotion to higher post is governed by the rule of seniority and in the face of supersession of the applicant therein, these cases deserve reconsideration, despite the delay. In the instant cases supersession is not alleged. Moreover, promotion to higher post was not dependent on seniority. It was dependent on passing the promotion course which undoubtedly was passed by the applicant in 1992. Thus, the judgment does not help the applicant. (ii) N. Balakrishna v. M. Krishnamurthy, 1998(7) Supreme 209. In the case the Trial Court had condoned the delay accepting explanation of delay. High Court held that delay not properly explained. It was held that once Trial Court accepts explanation as sufficient, superior court should not disturb such finding. In this case, no such finding exists and, therefore, the judgment does not come to the rescue of the applicant. "The Court is armed with power to condone the delay. The discretion is given to the Court to condone delay and admit the appeal in order that judicial power and discretion in that behalf should be exercised to advance substantial justice. If the spirit behind the empowerment of discretionary power on the Court is taken into consideration, it is beyond doubt clear that the Court is required to adopt liberal approach in the matter of interpretation of the phrase "sufficient cause". This concept is adequately elastic to enable the Court to apply law in a meaningful manner. The requirement of explanation of every day's delay does not mean that a pedantic approach should be taken. The Courts are required to adopt common sense approach and to take pragmatic approach while interpreting the concept of sufficient cause. Length of delay is not the matter, acceptability of explanation is the only criterion. The Court has to take into account whether there is acceptable explanation or pardonable explanation." The explanation given for delayed filing of the O.A. reads as under : (i) That the applicant is dedicated and devoted employee of the Railway. As such, he was of the view that first Departmental avenue (including Union Channel) should be exhausted fully. Only with this view he was hesitant to take his superiors to Courts due to fear of more serious reprisals rather achieving any career advancement. This very view was also held by the Hon'ble Tribunal (1995) 29 ATC 71 (Bangalore) A.C Prabhakaran v. Chief Personnel Officer and Ors. the Members of P.N.M. The applicant was left with no choice except to wait till the final decision of the Department on the issue of his promotion and seniority. However, the same was held in the P.N.M. vide Item ANNEXURE A/1 of the original application, being Item No. 12/1998 and the same was decided against the applicant. Under these circumstances, the applicant was left with no any other alternative except to approach before this Hon'ble Tribunal for the redressal of his long pending genuine grievance of promotion and seniority. (iii) That this Hon'ble Tribunal is fully competent to accept even oral prayer or request with regard to condonation of delay in presenting the original application. This view was held by the Hon'ble Tribunal in the matter of Hiralal Das v. Union of India, 1995 (30) A.T.C. 702 (Gauhati). (iv) That the orders with regard to seniority of the applicant ANNEXURE A/2 and promotion of the applicant, as P.W.I. Grade III ANNEXURE A/3 are wholly illegal and void. The orders are not governed by the provisions of Limitation Act. The same was held in connection with Dhiru Mohan v. Union of India (CAT) (Full Bench) 11/498 (Ahmedabad). (v) That even the Apex Court i.e., Supreme Court of India has also held that the delay has no bar to consider the matter on merits 1996 (8) J.T. 47. It is, therefore, most respectfully prayed that in view of the aforesaid facts and circumstances, the humble applicant prays that if there is any delay in presenting the original application then the same may kindly be condoned taking into consideration the aforesaid facts and legal position." In this application filed on 23.11.1998, the applicant is seeking seniority in the cadre of PWM with effect from 10.4.1981, and explanation given above cannot in any circumstances be treated as satisfactory even if we take most liberal view. Thus, none of the judgments cited by the learned Counsel for the applicant help the applicant. 7. Coming to the merit of the case, it is pointed out that the applicant's claim is based on his appointment as PWM in the MTP. This appointment is riot in direct line of promotion of the applicant. The applicant was promoted on ad hoc basis while he was on deputation to MTP and promotion earned in deputation organisation does not confer any right on the applicant to be treated as promoted in the parent organisation from that date. Further appointment to the post of PWM is dependent on passing the promotion training course. The applicant had passed the said course in 1992, and immediately thereafter he was promoted as PWM and further promoted as PWI-III with effect from 17.11.1994. Of course, had he taken up the matter with the respondents in regard to his Training in Promotion Course in time he might have been promoted in the present department earlier. Fact remains that he did not pursue this case with the respondents. The respondents have even denied the receipt of his alleged representation dated 30.10.1995. Thus, the applicant had been sleeping over his right all these years. At this late stage, the applicant cannot be permitted to disturb the settled position of seniority. 8. In the light of above discussion, we are of the firm view that the application is devoid of any merit and deserves to be dismissed. 9. The Original Application and Miscellaneous Application are accordingly dismissed with no order as to costs.

Bhanwar Lal vs Union Of India (Uoi) And Ors. on 11 May, 2000

Central Administrative Tribunal - Jodhpur

Court No. - 10 Case :- CONTEMPT APPLICATION (CIVIL) No. - 3797 of 2010 Petitioner :- Suresh Kumar Pathak Respondent :- Sanjay Prasad, D.M. Allahabad Petitioner Counsel :- Ram Ji Mishra Hon'ble Shashi Kant Gupta,J. Heard learned counsel for the applicant. This contempt petition has been filed with the allegation that in spite of an order dated 18.5.2010 passed by this court in Writ Petition No.28052 of 2010 the opposite party, District Magistrate, Allahabad has not decided his claim and representation though the stipulated time has elapsed. The opposite party is bound by the order of this court and in case he does not decide it within a month of receipt of this order, without any reasonable cause, the court would have no option except to punish him under Section 12 of the Contempt of Courts Act and other allied powers. The applicant shall supply a duly stamped registered envelope addressed to the opposite party and another self-addressed stamped envelope to the office within two weeks from today. The office shall send a copy of this order along with the self-addressed envelope of the applicant to the opposite party within three weeks from today and keep a record thereof. The opposite party shall decide the claim and representation of the applicant and intimate him of the order through the self-addressed envelope within a week thereafter. In case, opposite party does not comply with the aforesaid directions, it would be open to the applicant to approach this court again. With the aforesaid observations, this petition is finally disposed off at this stage. Order Date :- 9.8.2010 Manoj

Suresh Kumar Pathak vs Sanjay Prasad, D.M. Allahabad on 9 August, 2010

Allahabad High Court

ORDER 1. This is an application in revision against an order of the Subordinate Judge of Jaunpur, rejecting an application filed by the applicants for the assignment of a security bond. The facts so far as they are material for the purposes of the present application are as follows: One Sarup Kunwar held a decree for a sum of Rs. 5,435-3-9. She died leaving two sons Raja Lal Bahadur Singh and Rajendra Narain Singh. Raja Lal Bahadur Singh applied for a succession certificate with a view to realize the decretal amount. Rajendra Narain Singh objected to the grant of the succession certificate to Raja Lal Bahadur Singh on the ground that he (Rajendra Narain) was also entitled to a half-share in the decretal amount. The learned Judge called upon Raja Lal Bahadur Singh to file security of immovable property with respect to the half-share of Rajendra Narain Singh in the decretal amount as a condition precedent to a succession certificate being granted to him (Raja Lal Bahadur). Raja Lal Bahadur filed a security bond in terms of the order passed by the learned Judge and a succession Certificate was granted to him. It was recited in the security bond that Raja Lal Bahadur's application for succession certificate was granted subject to the condition that he should furnish security for half of the decretal amount and that after realization of the amount he will pay half of the amount realized by him to Rajendra Narain Singh. The bond went on to provide that if Raja Lal Bahadur failed to pay half of the amount to Rajendra Narain Singh the amount may be realized by enforcement of the security bond as against the immovable property hypothecated by the bond. After the security bond was furnished, succession certificate was granted to Raja Lal Bahadur and he realized the entire decretal amount so far back as in the year 1928. 2. Rajendra Narain Singh died in the year 1929 leaving a widow and three sons. On 21st January, 1932, the widow applied to the Judge for assignment of the security bond in her favour with a view to realize half of the amount from Raja Lal Bahadur. She impleaded Raja Lal Bahadur and her three sons as opposite parties in the application. In her application she alleged that Rajendra Narain Singh, had before his death, orally gifted or devised his half-share in the decretal amount to her. Raja Lal Bahadur objected to the assignment of the bond in favour of the widow mainly on the allegation that the oral gift or will put forward by the widow was never made by Rajendra Narain Singh. The sons of Rajendra Narain Singh did not appear and did not contest the application. The learned Judge after going through the evidence produced by the widow in support of her allegation as regards the oral gift or will by her husband came to the conclusion that the alleged gift or will was not proved. He also observed that the widow could not be the heir of Rajendra Narain Singh under the Hindu law as Rajendra Narain Singh had left sons. In view of these findings the learned Judge rejected the application filed by the widow. He proceeded further to make the following observations in the course of his order: Let the sons take proper steps to get themselves declared heirs and then assignment can be made by an order of the Court. 3. The sons then filed an application for the assignment of the security bond in their favour and. the learned Judge rejected the application on the ground that his order directing the sons to get themselves declared heirs had not been complied with. 4. The present application is against this order of the learned Judge. In our judgment the order cannot be sustained and ought to be reversed. It appears that during the pendency of the application for the grant of succession certificate the right of Rajendra Narain Singh to a half share in the decretal amount was not denied by Raja Lal Bahadur. Indeed the latter agreed to take the succession certificate subject to the liability to pay half of the decretal amount realised by him to Rajendra Narain Singh. This fact is abundantly borne out by the security bond given by Raja Lal Bahadur. The learned Judge of the Court below does not appear to have perused the security bond before deciding the application for assignment of that bond filed by the present applicants. If he had read the bond it would have been clear to him that the right of Rajendra Narain to a half share in the decretal amount could not, in view of the recitals in the bond, be disputed by Raja Lal Bahadur. That being so, there could be no escape from the conclusion that Rajendra Narain was entitled to a half share in the amount realized by Raja Lal Bahadur, and as such, either his widow or his sons were entitled to that half share. The widow's application for assignment having already been rejected, the only persons who could be entitled to the amount were the sons of Rajendra Narain. What the learned Judge was asked to assign was the security bond and it cannot be denied that the recitals in that bond were of cardinal importance in the case. The learned Judge however as already observed, does not appear to have perused the bond. By omitting to do so he exercised the jurisdiction vested in him with material irregularity. It was his duty to have looked into the bond that he was requested to assign to the applicants. He however failed to discharge that duty and this was a material irregularity committed by him. 5. Mr. Haribans Sahai, the learned Counsel for the opposite party, has argued that as the learned Judge of the Court below had a discretion in the matter, and as he has exercised the discretion, we ought not to interfere with the same in the exercise of our revisional jurisdiction howsoever erroneously the discretion may have been exercised by the learned Judge. If the learned Judge had judicially considered the matter in controversy between the parties, we would have had no jurisdiction to interfere with the exercise of his discretion howmuchsoever we may have disapproved of the matter in which he exercised his discretion, but the omission of the learned Judge to consider the terms of the security bond was tantamount to a refusal by the learned Judge to consider the application filed by the applicants judicially. Indeed it was a material irregularity in the exercise of his jurisdiction by the learned Judge to refuse to look into the bond that he was asked to assign. The irregular exercise of jurisdiction by the learned Judge vests us with discretion to revise his order, and as the discretion vested in the learned Judge was exercised by him capriciously, we have no other alternative but to reverse the order of the learned Judge. 6. Mr. Haribans Sahai further expressed the apprehension that if the bond is assigned in favour of the sons and they realize the amount from Raja Lal Bahadur Singh, the widow of Rajendra Narain Singh may thereafter file a claim against Raja Lal Bahadur Singh for the realization of the amount on the basis of an alleged oral gift or will by her husband. In order to set at rest this apprehension, we have decided to direct that the bond be assigned not only in favour of the sons of Rajendra Narain, Singh but also in, favour of his widow and Mr. Malik, the learned Counsel for the applicants, has agreed to this decision. 7. For the reasons given above, weal-low this application, set aside the order of the learned Judge of the Court below and direct that the security bond furnished by Raja Lal Bahadur Singh be assigned in favour of the applicants, and their mother, the widow of Rajendra Narain Singh, provided she is alive. The applicants are entitled to their costs both here and below. Let the record be sent to the Court below at an early date with the direction that the bond should be assigned immediately in favour of the persons mentioned above.

Surendra Narain Singh And Ors. vs Lal Bahadur Singh on 18 December, 1934

Allahabad High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 2944 of 2010(O) 1. SUJA MATHEW, W/O.MATHEW, ... Petitioner Vs 1. BABY, S/O.KURIAKOSE, ... Respondent 2. ANOOP, S/O.SASI, NADAKKANAL HOUSE, 3. MURUGAN, S/O.PADMANABHAN, 4. LUKOSE, S/O.AUGUSTINE, 5. SABU, S/O.AUGUSTINE, RESIDING -DO- For Petitioner :SRI.UNNIKRISHNAN.V.ALAPATT For Respondent :SRI.A.JAYASANKAR The Hon'ble MR. Justice P.BHAVADASAN Dated :06/04/2010 O R D E R P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C). No. 2944 of 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 6th day of April, 2010. JUDGMENT In this writ petition filed under Article 227 of the Constitution of India, the petitioner assails Exts.P5 and P6 orders. The petitioner filed O.S. 135 of 2007 before the Munsiff's Court, Thodupuzha for permanent prohibitory injunction and other reliefs. The petitioner claims to be the owner and in possession of 23 cents of land in Sy. No.399/1/5 of Udumbanoor Village. Copy of the plaint in the suit is produced as Ext.P1. It contains all the details. It is claimed that along with suit, the petitioner had filed an injunction application as I.A.614 of 2007 for interim injunction, which was granted by the court below. It is alleged that contrary to the order from the court, the first respondent executed sale deed in favour of respondents 2 to 5. Therefore the petitioner filed an impleading petition to implead them also on the party array. He has also field a petition to take action  WPC. 2944/2010. 2 against the first respondent for violating the order of injunction. While so, the survey authorities sent a notice to the petitioner stating that the petitioner's property will be surveyed on 28.3.2009 for effecting mutation in the name of respondents 2 to 5. Against that intimation, the petitioner approached this court and it is stated that the writ petition is still pending. The writ petition was sent to the Adalat for settlement. In the Adalat an agreement was entered into between the parties, which is produced as Ext.P2. Based on the agreement the Taluk Surveyor conducted a survey and submitted a report and sketch. Copy of the report and sketch are produced as Exts.P3 and P3(a). The Taluk Surveyor reported that based on the documents produced by both the parties the disputed 23 cents could not be identified. Narrating the above facts, the petitioner filed a petition before the Munsiff's Court, Thodupuzha. The petitioner pointed out that in the light of the report of the Taluk Surveyor a fresh commission has to be issued and the Taluk Surveyor be directed to measure the property. The  WPC. 2944/2010. 3 petition so filed in the suit is produced as Ext.P4. I.A. 23 of 2010 was also filed for the appointment of a Surveyor. The complaint of the petitioner is that without considering the contention raised in the petition, the court below dismissed the petitions holding that the suit is listed for trial. The petitioner says that the court below was not justified in dismissing the petitions. 2. Notice was served on the respondents, and they were heard. 3. The petitioner has produced the plaint in the suit filed by him. The suit s one for permanent prohibitory injunction restraining the defendant from trespassing into the property and executing documents in relation to the suit property. In the nature of the suit, it is very much necessary to obtain a commission report and plan especially when the defendants disputed the right of the plaintiff. It is seen that communication was issued from the Legal Services of this court to the Taluk Surveyor to measure the property. That was so done. Dissatisfied with the report, the petitioner had  WPC. 2944/2010. 4 moved the court below for getting a fresh report and plan after making the necessary measurements. The impugned order shows that on the date when the petition was posted, there was no representation, then the suit was posted for hearing and the petitions were dismissed. 4. Learned counsel appearing for the petitioner pointed out that the petitioner ought to have been given an opportunity to substantiate their contentions and the court below was not justified in dismissing the petition. It is also stated that the counsel appearing for the petitioner was out of station on the date on which the petitions were posted and unfortunately and representation on his behalf could not be made. It is pointed out that the petitioner may be given an opportunity to substantiate their case. 5. A reading of the order says that on the date on which the petitions were posted for hearing, there was no representation on behalf of the petitioner. The court dismissed the petitions. The court could not be found fault with. True it is also stated that the suit is listed for trial. But  WPC. 2944/2010. 5 that by itself may not be a ground to reject the petitions. But the fact still is that there was no representation. However, considering the nature of the suit and also the issues involved in the suit, the petitioner is to be given an opportunity to impress upon the court the necessity to have a Commissioner and Surveyor appointed for preparing a proper sketch and report. In the result, this petition is allowed and the impugned orders are set aside and the court below is directed to take up I.A. Nos. 22 and 23 of 2010 and take a decision thereon in accordance with law and in the light of what has been stated above. P. BHAVADASAN, JUDGE sb.

Suja Mathew vs Baby on 6 April, 2010

Kerala High Court

IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 22/08/2002 Coram The Honourable Mr. B. SUBHASHAN REDDY, Chief Justice and The Honourable Mr. Justice D. MURUGESAN W.A. No.482 of 2002 and W.A. No. 484 of 2002 and W.A.M.P. Nos.968, 971, 2212, 2213, 2409 and 2410 of 2002. 1. The State Govt. of Tamil Nadu, rep. by its Secretary, Health and Family Welfare Department, Fort. St. George, CHENNAI - 600 009. 2. The Director of Medical Education, ... Appellants in Chennai - 10. both appeals -Vs- Meenakshi Ammal Trust, Rep. by its Managing Trustee ... Respondent in A.N. Radhakrishnan both appeals For Appellants : Mr. R. Muthukumaraswamy, Addl. Solicitor General, assisted by Mr. V.R. Rajasekaran, Spl. Govt. Pleader For Respondent : Mr. G. Masilamani, Sr. Counsel for M/s. B. Saraswathi :J U D G M E N T ANNEXURE I MEDICAL COLLEGE MCI Norms 1. Land 25 Acres Available 2. Hospital 300 beds with necessary Details furnished infrastucture facility below 3. Bank Guarantee 150 Lakhs Available 100 Admission ANNEXURE - II 4. Infrastructure Manpower Availability list as per Facilities (Checked by MCI norms is enclosed Dr.A.D.Nageswari) Equipments Deficiency Report is (Random check enclosed carried out by Dr.(Prof.)P. Raja Sambandam) Buildings Deficiency Report is (Random check enclosed carried out by (Dr.(Prof.) P. Raja Sambandam)" (B.S.R., CJ) (D.M., J) bh/sm 22.08.2002 Internet : Yes LR Copies : Yes THE HON'BLE THE CHIEF JUSTICE The respondent is an educational trust and is already running Meenakshi Ammal Dental College, Meenakshi College of Nursing, Meenakshi College of Physiotheraphy, Meenakshi College of Occupational Therapy, Arulmigu Meenakshi Amman College of Engineering, Vadamavandal, Meenakshi College of Engineering, Uthiramerur, Meenakshi Arts and Science College for Women, Uthiramerur, Meenakshi Ammal Polytechnic, Meenakshi Ammal Industrial Training Institute and Meenakshi Ammal Matriculation School. 2. Intending to establish a medical college under the name and style of, 'Meenakshi Medical College and Research Institute', the respondent applied on 23.10.1997 to the appellants for the grant of Essentiality Certificate at Enathur near Kancheepuram, Tamil Nadu. There was a long delay in processing the application and to expedite the same, the respondent filed W.P. No.6755 of 1998 and by order dated 19.5.199 8, a learned single Judge of this Court directed the appellants to inspect and pass orders stipulating a time of one month. The inspection report was submitted on 31.12.1998 to the appellants but no action was taken pursuant thereto by the appellants, which necessitated the respondent to file W.P. No.18739 of 1999. While the writ petition was pending, the appellants passed order dated 1.2.2000 refusing to issue the Essentiality Certificate which resulted in the respondent filing W.P. No.4302 of 2000. 3. The appellants contested the writ petitions on the ground that the norms set for issuance of Essentiality Certificate were not met by the respondent and as such, there is no cause for the latter to complain. Disagreeing with the stand of the appellants, a learned single Judge by judgment dated 29.8.2001, had issued directions to the appellants to issue the Essentiality Certificate to the respondent enabling the latter to proceed further to obtain the necessary permission from other authorities and particularly Medical Council of India. A time of 60 days from the date of the receipt of the order was set but the same has not been complied with by the appellants. But the latter, instead, filed the instant writ appeals. 4. The matter is governed by the Medical Council Act, 1956, which is hereinafter referred to as the Act. In exercise of the power conferred under Section 10-A read with Section 33 of the Act, Regulations have been framed titled, 'Establishment of New Medical Colleges, Opening of Higher Courses of Study and Increase of Admission Capacity in Medical Colleges Regulation, 1993'. The same was superseded by the subsequent Regulation viz., 'Establishment of Medical Colleges Regulations, 1999'. Under Regulation 2 (3) thereof, obtaining Essentiality Certificate from the State Government is a requirement in order to apply for permission to establish a Medical College. 5. In the matter relating to the grant of permission to set up new medical colleges, the role of the State Government vis-à-vis that of the Central Government and the Medical Council of India was the subject matter of adjudication in THIRUMURUGA KIRUPANANDA VARIYAR THAVA THIRU SUNDARA SWAMIGAL MEDICAL EDUCATION AND CHARITABLE TRUST v. THE STATE OF TAMIL AND OTHERS (1996) 3 S.C.C. 15). In the said case, the State Government took a stand that in view of the proviso to subSection (5) of Section 5 of the Medical Universities Act, inserted by the State Act, no college can be affiliated to the University unless the permission of the Government to establish such college has been obtained and the terms and conditions, if any, for such permission have been complied with. This claim was tested on the touchstone of Section 10-A, which has been incorporated in the Indian Medical Council Act, 1956, by a later amendment. Interpreting the provisions relevant on the subject in the context of the legislativ e power conferred by Entry 25 of List III of Schedule VII of the Constitution, it was held by the Supreme Court that the State Government have got no say in the matter of establishing a new medical college excepting verifying the qualifying criteria for issuance of Essentiality Certificate regarding desirability and feasibility of having the proposed college at the proposed location. It is emphatically held by the Supreme Court that such requirement of obtaining an Essentiality Certificate from the State Government regarding desirability and feasibility of having the proposed college at the proposed location, cannot be equated with obtaining prior permission of the State Government for establishing a new Medical College as required under proviso to Section 5 (5) of the Medical Universities Act. It was also held in no uncertain terms that the Essentiality Certificate cannot be withheld by the State Government on any policy consideration because the policy in the matter of establishment of a new medical college now rests with the Central Government alone. But that is not the only judgment on the point. In STATE OF MAHARASHTRA v. INDIAN MEDICAL ASSOCIATION AND OTHERS (2002) 1 S. C.C. 589), which is a latest adjudication on the point, the Supreme Court held that the criteria for issuance of the Essentiality Certificate by the State is the desirability of location of the proposed Medical College as also the provision for adequate clinical materials as per the guidelines prescribed by the Medical Council of India, at the proposed Medical College. That is the law of the land in operation. 6. In so far as the feasibility and desirability of the place is concerned, the State has got no objection. Objection is raised only with regard to the compliance in providing clinical materials. We do not feel it necessary to enumerate the said requirements in detail, as there had been five inspections, four during the pendency of the writ petition and one after the writ appeals have been filed. The First Inspection Report is dated 31.12.1998. The team comprised of Dr. T. Munusamy, Dean, Government Stanely Medical College and Hospital, Chennai, Dr. B. Premkumar, Dean, Chennai Medical College and Dr.A. Karuppanna Pillai, Dean, Coimbatore Medical College. Inspection was made on 30.12.1998 and the report was sent to the second appellant on 31.12.1998. It is apt to extract the said report, "INSPECTION REPORT. MEENAKSHI AMMAL TRUST MEDICAL COLLEGE "As per the instructions of the Director of Medical Education, the inspection team consisting of Dr. T. Muniswamy, Dean, Stanely Medical College, Dr. B. Premkumar, Dean, Chennai Medical College and Dr.A. Karuppanna Pillai, Dean, Coimbatore Medical College inspected the Meenakshi Ammal Trust Medical College to be established on 30.12.1998. The Medical College with proposed 100 students intake per year, is to be started temporarily at Maduravoyal, Alapakkam, Chennai. This trust is conducting a Dental College at the above site for the past seven years. The facilities already existing for the Dental College in basic sciences like Anatomy, Physiology, Biochemistry are to be expanded and utilised for the proposed medical college. The new buildings are under construction and there made a provision of 13,000 sq.feet for the department of Anatomy, Dissection hall histology laboratory. A provision of 10,000 sq.feet has been made for the department of Physiology. Another 10,000 sq.feet is provided for the Biochemistry department and another 3,000 sq.feet for the Social and Preventive Medicine department. The building work is going on, will be ready for occupation in another two to 3 months. All the teaching staff for the department of Anatomy, Physiology, Biochemistry and Social and Preventive Medicine has been appointed and were present at the time of inspection, there list is enclosed in the appended volume. for the Biochemistry department and another 3,000 sq.feet for the Social and Preventive Medicine department. The building work is going on, will be ready for occupation in another two to 3 months. All the teaching staff for the department of Anatomy, Physiology, Biochemistry and Social and Preventive Medicine has been appointed and were present at the time of inspection, there list is enclosed in the appended volume. Buildings are ready for occupation of 300 bedded hospital and additional buildings are under construction for providing another 300 beds, operation theatre, casualty etc. The teaching staff for Medicine, Surgery and Obstetrics and Gynaecology departments have been appointed and were present at the time of inspection. It is proposed that the permanent buildings for the college and hospital and Hostels will be located at a 50 acre campus at Enathur village on the Madras Bangalore highway near Kancheepuram. This place is about 65 kilometers from Madras city. The land is under process of acquisition. At present, the students will be provided hostel facilities with separate Mens Hostel and Ladies hostel in which the B.D.S. students are also staying. In the light of the above findings, the Government is recommended to issue of essentiality certificate to the Meenakshi Ammal Trust for establishing a Medical College with annual intake of 100 students. Sd/- DR.A. KARUPPANNA PILLAI MEMBER Sd/- DR. B. PREMKUMAR MEMBER Sd/- DR. T. MUNISWAMY CHAIRMAN" But the second appellant did not recommend for the issuance of the Essentiality Certificate and again directed Dr. V. Anil Kumar, Deputy Director of Medical Education, to inspect the college again. The said officer inspected the respondent institution on 24.11.2001 and filed his report favouring the issuance of the Essentiality Certificate on the ground that the respondent has complied with all the norms set by the Medical Council of India for establishing the Medical College. Yet there was a third inspection on 12.1.2002 and this time, it was Dr. P. Raja Sambandham, who was then holding the post of the Director of Medical Education. Though all the details were noted, no inspection report has been filed but the above Director, accompanied by Dr. A.D. Nageswari, Deputy Director of Medical Education, has again inspected the institution on 16.4.2002 and filed his inspection report before the Government, which reads, "INSPECTION REPORT As per instruction of Secretary to Government, Health & Family Welfare Department, I Dr. P. Raja Sambandam, Director of Medical Education, accompanied with Dr. A.D. Nageswari, Deputy Director of Medical Education (Planning & Development) inspected Meenakshi Ammal Medical College and Research Institution on 16.4.2002 to verify the infrastructure facilities available at the Hospital and College as per MCI norms. Herewith I have enclosed the format which contains the MCI requisites and the available facility:The final remark of the Officer was to the following effect: " As per G.O. No.Ms.211 H & FW Department, dated 13.8.2002, the Meenakshi Ammal Medical College and Research Institution was inspected taking into consideration of the Medical Council of India Norms for issuing essentiality certificate (refer to Para No.III of G.O. Ms.No.211). However, the Government may decide about issuance of essentiality certificate after perusing the Inspection Report. Sd/- (Dr.(Prof.) P. Raja Sambandam Director of Medical Education" It is pertinent to mention that the above inspection was a random check and in fact, it is very clearly mentioned in the said report, which reads, 'All the equipments were not kept for display. Hence only random check was carried out'. 7. As such, we were of the considered view, in view of the conflicting versions of Dr. P. Raja Sambandham, the then Director of Medical Education, as compared to the earlier reports dated 31.12.1998 and 24.11.2001, to appoint another Committee. A Committee comprising of Dr. C. Ravindranath, the present Director of Medical Education, and Dr. Chandraskara Shetty, former Vice Chancellor of Rajiv Gandhi University of Health Sciences, Karnataka and M/s. R.P. Kabilan and Vijayakumari Natarajan, Advocates, High Court, Madras, has been appointed to inspect the institution on 27.7.2002 and to file a report before the Court on 30.7.2002. 8. The said Committee filed a Report dated 28.07.2002, from which, it is obvious that the respondent had complied with the requirements set by the Medical Council of India. The second appellant, who was a Member of the Committee, has filed a separate Report and also filed an affidavit supporting the said Report. There is nothing incriminating in the Report filed by the second appellant, which is in the nature of objections, and after reading his affidavit and the Report, what is culled out is that even though the clinical materials are made available by the respondent, the said word 'Clinical Material' cannot be interpreted in a narrow manner, and it means and includes the availability of the number of patients matching the percentage of occupancy rate prescribed by the Medical Council of India, the investigations done to the patients (Laboratory investigations like Bio-Chemical, Microbiology and Clinical Pathology), X-Rays taken, the number of surgeries done in various specialities and the number of cases seen in the Out Patient Department and In Patient Department. Ultimately, the objection raised by the second appellant for the issuance of Essentiality Certificate is non-availability of required number of patients on the premise that mere provisions of instruments, materials like machineries and buildings does not mean that the respondent has fulfilled the need of the clinical material to impart medical education. 9. Now, the point has boiled down to a narrow compass as to whether there should be actual patients of the number required at the time of inspection or around the said period. This depends upon the proper construction of clause (5) of the Guidelines issued by the Medical Council of India, which reads, "Regulation-2: QUALIFYING CRIETERIA - The eligible persons shall qualify to apply for permission to establish a medical college if the following conditions are fulfilled:- (1) to (4) ........ (5) that the person owns and manages a hospital of not less than 300 beds with necessary infrastructural facilities capable of being developed into a teaching institution in the campus of the proposed medical college. (6) to (8) ..... " The said provision cannot be construed as requiring actual number of patients at the time of either inspection by the Authority or issuing Essentiality Certificate. What is required is construction of a hospital making provision for not less than 300 beds with the necessary infrastructure facilities and not the presence of the actual number of patients at the time of inspection. The number may vary according to circumstances. Some times, it may be less and some times it may be more. There may be occasions where the beds are empty and there may be some other occasions where even 300 beds are not sufficient because of exigencies. The object and intendment of satisfying the requirements is to see that there is a hospital readily-built with all infrastructural facilities capable of receiving and treating patients, both out-patients and in-patients, and should there be a necessity of patients to be admitted, then there should be accommodation for 300 beds. Once this condition is satisfied and which in fact is satisfied by the respondent, even according to the latest report of the second appellant, the objection raised by the second appellant that actual number of patients were not there at that time, even assuming to be correct, is not at all germane for consideration as to issuance of the Essentiality Certificate. Further, it is not demonstrated as to how and why the successive reports, which are affirmative for the issuance of Essentiality Certificate, should be ignored. 10. In view of what is stated above, we dismiss the Writ Appeals. However, time for compliance of the order of the learned single Judge is granted by one week from today. Consequently, W.A.M.P. Nos.968, 9 71, 2212, 2213, 2409 and 2410 of 2002 are closed.

The State Govt. Of Tamil Nadu vs Meenakshi Ammal Trust on 22 August, 2002

Madras High Court

ORDER B.N. Chaturvedi, J. 1. By an application under Order XXXIX Rules 1 & 2 CPC(IA.8202/2001), plaintiff seeks an order of inunction restraining the defendants from selling, transferring or allowing any person in any manner from exhibiting, telecasting or showing the film "Giraftar" through any media. 2. The plaintiff filed a suit against the defendants for recovery of Rs. 1,62,46,250/- alleging that as a financier it had advanced diverse sums aggregating Rs. 56.25 lakhs to defendant No. 1, a producer of cinematograph films, in connection with making of a film titled "Ganga Jamuna Saraswati". The sums advanced on different dates carried interest @ 23% p.a. In addition, certain other amounts accruing under the agreement, executed between the plaintiff and defendant No. 1, are claimed payable by the defendant No. 1. 3. The defendant No. 2 was engaged by the defendant No. 1 for the purposes of processing negatives of all kinds and taking out release-prints etc. for delivering the same to various territorial distributors of the film "Ganga Jamuna Saraswati". As security for repayment of all amounts due and payable to the plaintiff, the defendant No. 1 wrote a letter to the defendant No. 2 to hold negatives, prints etc. of the said film in trust for and on behalf of the plaintiff till such time the payment of the entire amount that would become payable, was not made to the plaintiff. The defendant No. 2, accordingly, transferred in their records the negatives of the said film in the name of the plaintiff and agreed to act as per instructions of the plaintiff only in regard to all affairs concerning delivery of release-prints of the film to the distributors, appointed by defendant No. 1. 4. The defendant No. 1 failed to pay the amount due and payable to the plaintiff The film "Ganga Jamuna Saraswati" was completed sometime in later half of 1988. It was scheduled to be released on or about 22/23 December, 1988. On or about 23rd of February, 1988 during the period when the said film was under production, there was a search and seizure at the premises of the plaintiff by the Income Tax Department. By an order dated 29.2.1988 passed by Income Tax authorities under Section 132(3) of the Income Tax Act, 1961, the defendant No. 1 was prohibited from making any payment of the amounts due to the plaintiff under the agreement relating to production of the said film. The plaintiff was, thus, prevented from taking out any proceedings against defendant No. 1 for recovery of the amount due from it. Since the defendant No. 1 was restrained from making payment of the amount due to the plaintiff by the income tax authorities, in pursuance of a meeting held between the plaintiff, defendant No. 1 and officials of defendant No. 2, on an oral undertaking of both the defendants to make the payment of the amount due to it, the plaintiff agreed to the release of the film "Ganga Jamuna Saraswati". The defendant No. 2 was allowed to release the prints of the film, as per the needs of the defendant No. 1, to the distributors without a written consent from the plaintiff. The film was, accordingly, released and exhibited. However, contrary to assurance given by the defendants, only small amounts were paid to the plaintiff by defendant No. 1. On prohibitor order issued by the income tax authorities being vacated, the defendant No. 1, on being approached by the plaintiff to make the payment, expressed his inability on the excuse of heavy financial constraints. Subsequently, few more films were produced by defendant No. 1, but it failed to make payment of the amounts due and payable to the plaintiff. By seeking a restraint against the defendant No. 1 from exhibiting or showing its new film "Giraftar", the plaintiff aims at making the defendant No. 1 to pay the suit claim. 5. The liability, if any, to pay to the plaintiff against the suit claim under the agreement in question appears to be that of defendant No. 1 only. The defendant No. 2 was not a party to the agreement under which the plaintiff had financed the making of film "Ganga Jamuna Saraswati" by defendant No. 1. The defendant No. 2 had, of course, on the instructions of defendant No. 1 transferred the negatives of the film in their records in the name of the plaintiff and had agreed to act solely on the instructions of the plaintiff concerning delivery of release-prints of the film. Once the plaintiff permitted it to deliver the release-prints of the film, no fault could be found with defendant No. 2 as far as its part of obligation towards the plaintiff was concerned. Though in the plaint there is an averment that the plaintiff had permitted the release of the film "Ganga Jamuna Saraswati" on an oral undertaking of both the defendants that payment of the amounts due and payable to it would be made, it is a matter of evidence if any such oral undertaking had actually been given by defendant No. 2. Furthermore, the question of enforceability of alleged oral undertaking for recovery of the suit amount from the defendant No. 2 is yet to be adjudicated upon. 6. The learned counsel for the plaintiff referred to a letter dated 2.2.19993 from defendant No. 1 to defendant No. 2 requesting them for transfer of negatives of the picture "Giraftar" in the name of the plaintiff as soon as the accounts with M/s. Laxman Dass Bansi Lal & Company, Bangalore were settled. In reply, defendant No. 2 wrote a letter dated 15.2.1993 to the plaintiff informing it that the instructions from defendant No. 1 for transfer of the picture and sound negatives of the film "Giraftar" had been taken note of by it and the same would be transferred in its name provided they get a letter from M/s. Laxman Dass Bansi Lal & Company, Bangalore stating that their accounts are settled and that they have no objection in transferring the negatives of the above said film, as per the instructions of the producer, in its favor. Till date, however, the picture and sound negatives of the film in question continue in the name of M/s. Laxman Dass Bansi Lal & Company, Bangalore in the records of defendant No. 2 and the same have not been transferred in favor of the plaintiff. Thus, it is M/s. Laxman Dass Bansi Lal & Company, Bangalore which hold lien over the picture and sound negatives of the film "Giraftar" and no right in favor of the plaintiff in relation thereto has yet been created in the records of defendant No. 2. The plaintiff, in the circumstances, cannot seek to dictate its terms to the defendant No. 2 to the detriment of M/s. Laxman Dass Bansi Lal & Company, Bangalore, the present negative right holder as per record of defendant No. 2. Consequently, the plaintiff cannot justify its prayer for a restraint order against the defendant No. 2 relating to release of picture and sound negative prints of film "Giraftar" by them. 7. The defendant No. 1, in its reply to the application, asserted that he has already repaid the entire amount of Rs. 56.25 lakhs to the plaintiff. The plaintiff has not specifically admitted that its entire principal amount stands paid. 8. From an order dated 8.10.1999, it is gathered that the learned counsel for defendant No. 1 had informed the Court that a sum of Rs. 9.25 lakh was outstanding towards the principal amount on that date. Another order dated 12.7.2000, however, reveals that instead of Rs. 9.25 lakhs, three cheques for a total amount of Rs. 6.25 lakhs only had been paid by the defendant No. 1 towards balance of the principal amount. The plaintiff accepted the said payment without admitting that the entire outstanding balance on account of principal amount stood liquidated. 9. The defendant No. 1 has further stated in its reply that he has surrendered possession of his two flats at Bombay Zuhu Beach to the plaintiff as security for repayment of the entire principal amount. This fact was not controverter by the learned counsel for the plaintiff in the course of hearing. The said flats are claimed to be worth more than Rs. 1,25,00,000/-. It is pleaded that after payment of entire principal amount when the defendant No. 1 demanded back the possession of the flats, the plaintiff started filing frivolous applications to harass him. 10. It is notable that after transfer of negative rights pertaining to film "Giraftar" in favor of M/s. Laxman Dass Bansi Lal & Company, Bangalore in the records of defendant No. 2 at the instance of defendant No. 1, presently the defendant No. 1 appears to hold no right or control over negative rights of the said film and the defendant No. 2 has to act as per instructions of M/s. Laxman Dass Bansi Lal & Company, Bangalore, the present negative rightholder of the film "Giraftar". In such a situation, by passing a restraint order against the telecast or exhibition of the film "Giraftar", financial interest of M/s. Laxman Dass Bansi Lal & Company cannot be put in jeopardy. Thus, taking into account the facts and circumstances of the case, there is no case for grant of ad interim injunction prayed for against telecast, exhibition and distribution etc. of the film "Giraftar". The application is, therefore, dismissed.

Author: B Chaturvedi

M/S Nahta Limited vs M/S Raamraj Kala Mandir And ... on 13 September, 2001

Delhi High Court

IN THE HIGH COURT OF KARNATAKA AT EA,N?éF,L©NR\E' . DATED THIS THE 27*" DAY OE...OcTO3E'R,- 3201"O " BEFORE A THE HON'BLE MR. JOsTIcE",A%,'N.,VvENOOORAL,AAN{;O.wO§A % WRIT PETITEON. NO.2A66if8,/2O_,1O (.C5"i\1E,CPCT) BETWEEN: _ AGEO;AEsOL "T-:;.6..__YEAR.S,"~~_ _ ' AOEO ABO_LJTa 11.5 YEARS, _ . THE VRETITEONERSJ' MINORS ANDARE REF'. BY T.HE:R MOTHER AND V.NATuRAL__GU.A.RO1*AN"'SMT. K.S. REKHADUTT. _g_AGEO ABOUT 35 YEARS, 'R,{'_AT NO.24 &"2S,"GANESHA KRUPA', 3R7fA'"C.ROSS, 2ND MAIN, " ~ _N"A.\/OD'AY/RNAGA R, ,3:T>,'-N,Ac3AR,' 7TH PHASE, BANGAj'.-ORE -- 560 076. (BY SR1"'H.:N}PRAr<ASH, ADV.) PETITEONERS MR M.S.GURUDUTT S/O LATE M. SATYANARAYANA RAO, AGED ABOUT 43 YEARS, R/AT NO546, 15TH CROSS, 16"' MAIN, ISRO LAYOUT, BANGALORE -- 560 078. MR. M.S. DEVADUTT, S/O LATE M. SATYANARAYANA RAO, ';.period of the date a copy of this order is Vizdacved on r'e'cord:Aof'the Trial Court, by either of the parties. Ksi/-- Judge, that, the plaint schedule propertyupon"'t'iie7_Tle'mi's.e Sathyanarayana Rao, has become__the~a.£5s'o!.u:t'e ' the plaintiff and defendan»ts;«...__' defendants in the suit.' In viewi matter, the amendment being Court was justified in dismissing 1 h i if V Since..t§i/i.e complete and triai has alvre;3dVy..Vtfa:,-;<e.:n:_ being one for partition and sepa rated'Vp'o.sis.e'ssi'o*n:"keeping in view the provisions of Karnataka (Case'~t:_'_4F|oirii"' in Sub~ordinate Courts) Ru|.,es,'V2*005,V t'tiieil:TL'ri'a|&v: Court is directed to dispose of the S'.|A}§:i?.r'.3:S e_ar!.y -avsvpracticaiale and at any event within a 'lp'e.tition stands disposed of accordingly.

Author: A.N.Venugopala Gowda

Kumari Anusri vs Mr M S Gurudutt on 27 October, 2010

Karnataka High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM Bail Appl..No. 4041 of 2008() 1. VIKRAMAN, AGED 42 YEARS, S/O.CHATHAN, ... Petitioner Vs 1. STATE OF KERALA REPRESENTED BY THE ... Respondent 2. THE SUB INSPECTOR OF POLICE, For Petitioner :SRI.PHILIP M.VARUGHESE For Respondent : No Appearance The Hon'ble MRS. Justice K.HEMA Dated :30/06/2008 O R D E R K. HEMA, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - B.A.No. 4041 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 30th day of June, 2008 O R D E R Application for bail. 2. The alleged offences are under sections 8(1) and (2) of the Abkari Act. Article involved is 8 litres of arrack. The petitioner is arrested on 1-6-2008. The learned Public Prosecutor submitted that the petitioner is not involved in any other crime under the Abkari Act and hence this application is not opposed. 3. The petitioner is granted bail on the following terms and conditions:- mn.

Vikraman vs State Of Kerala Represented By The on 30 June, 2008

Kerala High Court

ORDER T.K. Jayaraman, Member (T) Sl. No. Appeal No. Name of the party Impugned Order No. & Date Penalty 1. ST/279/2007 Tidewater Shipping Private Ltd. v. CST, Bangalore RA No. 62/2007 dated 29.05.2007 Rs. 100/- for everyday Under Section 76 Rs. 7,12,000/- Under Section 78 2. ST/249/2007 Mr. Madhusudan Balaji v. CST, Bangalore RA No. 41/2007 dated 23.03.2007 Rs. 100/- for everyday Under Section 76 Rs. 5,00,000/- Under Section 78 3. ST/290/2007 JBC Impex v. CST, Bangalore RA No. 44/2007 dated 27.03.2007 Rs. 100/- for everyday Under Section 76 Rs. 1,000/- Under Section 77 4. ST/3 97/2007 Macro Services v. CCE(A), Mangalore OIA No. 193/2007 dated 29.08.2007 Rs. 51,004/- Under Section 76 Rs. 1,000/- Under Section 77 Rs. 51,004/- Under Section 78 1. In all the above cases pertaining to Service Tax, Revenue proceeded against the appellants on the ground that they have not paid the Service Tax, which is liable to be paid by them. Of course, in each case, the facts are slightly different. However, in all these cases as soon as the lapse of not paying the required Service Tax was pointed out, the appellants paid the entire amount of Service Tax along with interest even before the issue of Show Cause Notice. The details of the date of issue of Show Cause Notice, and the date of payment in respect of each appeal is given below in the Tabular column. Sl. No. Appeal No. Dt. of payment of tax & interest Date of issue of SCN 1. ST/279/2007 28.05.2005 30.05.2005 2. ST/249/2007 19.03.2005 29.03.2005 3. ST/290/2007 Prior to 30.10.2004 02.03.2005 4. ST/397/2007 30.06.2006 23.08.2006 Even though, the Service Tax along with interest was paid even before the issue of Show Cause Notice, in all these case, Revenue proceeded against them by way of issue of Show Cause Notice. In respect of cases in Sl Nos. 1, 2 and 3, the lower authorities took a view that as the appellants have discharged the duty liability much before the issue of the Show Cause Notice, there was no need to impose any penalty. Therefore, using the discretion under Section 80 of the Finance Act, the lower authorities did not proceed to impose any penalties on them. On reviewing the orders passed by the Original Authority in respect of Sl. Nos. 1, 2 & 3, the Reversionary Authority, viz. the Commissioner, proceeded against the appellants and imposed penalties as indicated above especially in each case, the penalty equal to the Service Tax not paid was imposed under Section 78. In respect of the case in Sl. No. 4, the lower Authority himself confirmed the tax which was also paid much before the issue of Show Cause Notice and penalty under Section 78 was also imposed. In any case, in all the appeals, the common thing is that the Tax and the interest were paid much before the issue of Show Cause Notice. 2. The learned Advocates pointed out that there are number of case-laws which hold that when the duty and the interest are paid much before the issue of Show Cause Notice, there is no need for imposition of any penalty and this principle had been followed by this bench in many of the cases. A large number of cases have been cited by the learned Advocates. 3. On the other hand, the learned SDR stated that in respect of each of the case, it cannot be said that the appellants were under bonafide belief for non-payment of Service Tax. There is actually suppression of facts in order to evade the tax. Therefore, the appellants are liable for penalty. Hence, the learned SDR requested the bench to uphold the impugned orders. 4. On a very careful consideration of the entire issue, we find that in respect of each of the cases, due to bonafide belief, the appellants did not discharge the Service Tax liability in time. But, as soon as the lapse was pointed out by the departmental authorities, they remitted the Service Tax much before the issue of Show Cause Notice as given in detail in the above tabular column. This bench has held in large number of cases that if duty is paid before the issue of Show Cause Notice, no penalty and interest can be levied payable. In the present case it is seen that even the interest which is due from the appellants has been paid. Our attention was also invited to Section 73(3) of the Finance Act and also a Board's Circular based on that. The Circular and also the Section 73(3) provides that if the assessee cleared the Service Tax due along with interest on his own and even on the insistence of the departmental authority, then no penalty proceedings can be taken against them. In other words, all the proceedings against the appellants will be deemed to have been concluded. In view of the above position, we are of the view that the impugned revisionary orders, enhancing the penalties and imposing penalties under Section 78, are not in order. Further, the impugned order in Sl. No. 4 is also very harsh especially when the appellants had paid the entire amount of Service Tax and interest even before the issue of Show Cause Notice. In such circumstances, we allow the appeals with consequential relief, if any. The impugned orders are set aside. (Operative portion of this Order was pronounced in open court on conclusion of hearing)

Tidewater Shipping Private ... vs The Commissioner Of Service Tax on 19 March, 2008

Customs, Excise and Gold Tribunal - Bangalore

IN THE HIGH COURT OF KERALA AT ERNAKULAM MACA.No. 1647 of 2008() 1. THE UNITED INDIA INSURANCE CO.LTD ... Petitioner Vs 1. SAROJINIAMMA, KUNNUMPURATHU, ... Respondent 2. GOPALAKRISHNAN 3. RADHAKRISHNAN 4. INDIRA, PULINTHURA, THIDANADU P.O. 5. BABU, KUNNUMPURATHU 6. BOSE 7. GIRIJA, PARATHOATTU 8. MAYA,KUNNUMPURATHU, 9. MURALEEDHARAN NAIR For Petitioner :SRI.M.A.GEORGE For Respondent :SRI.JOSE J.MATHAIKAL The Hon'ble MR. Justice A.K.BASHEER The Hon'ble MR. Justice P.Q.BARKATH ALI Dated :01/03/2010 O R D E R A.K.BASHEER & P.Q.BARKATH ALI, JJ. ``````````````````````````````````````````````````````` M.A.C.A. No. 1647 of 2008 ``````````````````````````````````````````````````````` Dated this the 1st day of March, 2010 J U D G M E N T Basheer, J. Sri.M.A.George, learned counsel for the appellant, seeks permission to withdraw the appeal. Permission is granted. The Appeal is dismissed as withdrawn. Sd/- (A.K.BASHEER, JUDGE) Sd/- (P.Q.BARKATH ALI, JUDGE) aks // True Copy // P.A. To Judge 

The United India Insurance Co.Ltd vs Sarojiniamma on 1 March, 2010

Kerala High Court

ORDER (1) This revision petition has been filed against the order of the learned District Munsif, Poonamallee, dismissing the application which the petitioner filed in the suit as defendant for impleading one Ranganatha Mehata as the second defendant in the suit. The suit was brought by the plaintiff against this petitioner for declaration of his title to Schedule A and for recovery of possession thereof mentioned as Schedule B in the plaint. The basis of the application of the petitioner was that Ranganatha Mehata from whom the plaintiff had purchased the property had agreed to sell the schedule A property to the defendant and that the plaintiff had notice of that agreement. The application was filed by the defendant under Order 8-A, C.P.C. The learned District Munsif in dismissing the application pointed out that there was no question of indemnity or contribution sought to be recovered from Ranganatha Mehata and therefore Order 8-A did not apply. In this petition Sri R. Subramaniam, learned counsel for the petitioner, urges that though the Order 8-A as such will not apply, Ranganatha Mehata could have been impleaded under O. I, Rule 10, C.P.C. But I do not think that it is necessary to implead him even under O. I, Rule 10, C.P.C. The reason is that, as the Privy Council have indicated as early as 1934 in Pir Baksh v. Mahomed Takar, ILR 58 Bom 650: (AIR 1934 PC 235), the alleged right of the defendant under the agreement of sale cannot be valid defence to an action in ejectment and that the only means by which the defendant can work out his right is to file a separate suit for specific performance of the alleged agreement of sale impleading Ranganatha Mehata and the plaintiff and apply for stay of trial of the suit in ejectment pending the trial of the suit for specific performance. The learned District Munsif is wrong in thinking that the truth of the agreement of sale could be gone into in the present suit as a valid defence and without Ranganatha Mehata being impleaded. For the reasons mentioned above, Ranganatha Mehata is neither a necessary nor a proper party. Accordingly this petition is dismissed. (2) Petition dismissed.

Sengalani Gramani vs Subbayya Nadar And Ors. on 5 August, 1966

Madras High Court

Court No. - 25 Case :- MISC. BENCH No. - 10855 of 2009 Petitioner :- Nisha Khandelwal W/O Pradeep Khandelwal & Anr. Respondent :- State Of U.P. Thru Secy. Home & Ors. Petitioner Counsel :- Rakesh Srivastava Respondent Counsel :- G.A. Hon'ble Abdul Mateen J. Hon'ble Yogendra Kumar Sangal,J. List after ten days. Interim order, if any, shall continue till the next date of listing. Order Date :- 2.2.2010 anb

Nisha Khandelwal W/O Pradeep ... vs State Of U.P. Thru Secy. Home & Ors. on 2 February, 2010

Allahabad High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.13241 of 2007 Abhoy Kumar Verma . Versus The State Of Bihar & Ors . ----------- 4 27.07.2011 As prayed, put up after one week. In the meanwhile, copy of the writ petition may be served on learned counsel for Respondent/Accountant General, Bihar, Patna. ( Rakesh Kumar, J.) Praful

Abhoy Kumar Verma vs The State Of Bihar & Ors on 27 July, 2011

Patna High Court - Orders

JUDGMENT Milap Chandra, J. 1. These appeals are against similar awards passed by the learned Civil Judge, Sri Ganganagar dated August 11, 1980 under Section 26, Rajasthan Land Acquisition Act, 1953 (hereinafter to be called as 'the Rajasthan Act'). The first five appeals have been filed by the State of Rajasthan against the claimants impleading the Urban Improvement Trust (now Municipal Council), Sri Ganganagar as pro forma respondent. The last appeal has been filed by the claimant for the enhancement of the amount of compensation and grant of solatium and interest. The facts of the cases are similar. They may be summarised thus. 2. With a view to remove residential difficulties of the inhabitants of Sri Ganganagar; adjoining agricultural fields of Chak No. 2e, 3e and 6e were acquired by the State of Rajasthan. The Land Acquisition Officer, Sri Ganganagar calculated compensation @ Rs. 4,775/- per bigha by its award dated October 15, 1976. Aggrieved with his awards, claimants moved applications under Section 17 of the Rajasthan Act for making references to the District Court, Sri Ganganagar. Accordingly, references were made to the District Court, Sri Ganganagar. Subsequently, they were transferred to the Civil Judge, Sri Ganganagar who was also authorised to entertain and decide the references vide notification No. 4(1)(4) Rev/ Group/1V/ 75 dated March 12, 1975. The claimant-respondents filed their claims claiming compensation @ Rs. 25,000/- per bigha. The Municipal Council, Sri Ganganagar (successor of Urban Improvement Trust) filed its reply admitting that the Urban Improvement Trust, Sri Ganganagar also filed applications under Section 18 of the Rajasthan Act for making references; they were made and were dismissed by the District Judge, Sri Ganganagar. The learned Civil Judge framed issues and recorded the evidence of the parties. After hearing them, compensation was determined @ Rs. 9,500/-per bigha with solatium @ 10% and interest @ 6%. Solatium and interest have not been allowed to the claimant Girdhari Ram (respondent No. 1 in the appeal No. 18/91) on the ground that he was still then in possession of his land. He has filed appeal No. 36/ 81 for the enhancement of the compensation from Rs. 9,500/- to Rs. 12,000/- per bigha and grant of solatium and interest. 3. It has been contended by the learned counsel for the Municipal Council, Sri Ganganagar and Deputy Government Advocate that the learned Civil Judge has seriously erred in enhancing the compensation and in awarding solatium and interest, certified copies of certain sale-deeds in respect of the similarly situated land showing their sale @ Rs. 4000/- per bigha were filed and the learned Civil Judge has not considered them. He also contended that the learned Civil Judge has placed great reliance on the order Ex. 1 of the Land Acquisition Officer, Sri Ganganagar dated April 27, 1979 awarding compensation @ Rs. 9,500/- per bigha without considering the fact that it was given in respect of small pieces of land of better quality. He further contended that learned Civil Judge should not have taken into consideration the certified copies of the sale-deeds filed by the claimants as they were not duly proved and the sales effected through them were against law. He lastly contended that the potential value of the land has also been taken into consideration in the utter disregard of the proviso to Sub-Section (2) of Section 3 of the Rajasthan Act. 4. In reply, it has been contended by the learned counsel for the claimant-respondents that it is clear from the certified copy of the judgment Ex. 1 of the Land Acquisition Officer, Sri Ganganagar dated April 27, 1979 that simiar land situated in the adjoining chak No. 6e had fetched price at the rate more than Rs. 15,000/- per bigha even before the date of notification issued in these cases under Section 6 of the Rajasthan Act. He also contended that the learned Civil Judge was not justified in ignoring the other sales-deeds showing the sale of the land at higher rates. It has further been contended that no objection was taken when the certified copies of the sale-deeds were tendered in evidence and exhibited during the statements of the claimants and as such it is not now open to the respondents to contend that they cannot be read in evidence as they were not duly proved by calling their executants or attesting witnesses. He also contended that under no law the sales effected through these sale-deeds were illegal. He further contended that the learned Civil Judge has not taken into consideration the potential value of the land otherwise he would have awarded compensation at much higher rate. He lastly contended that the claimants are entitled to get solatium @ 30% and interest @ 12% as provided under Section 56(8) of the Land Acquisition Act, 1894 (hereinafter to be called as 'the Central Act') as amended by the Land Acquisition (Rajasthan Amendment Act), 1987. 5. In respect of appeal No. 36/ 81, Shri N.L. Kakkar Advocate contended that the learned Civil Judge should have granted compensation at least @ Rs. 12,000/- per bigha, solatium under Section 23(2) of the Rajasthan Act as it was not dependent upon the taking of possession and interest should have also been awarded under Section 28 of the Rajasthan Act as it was admitted by the Urban Improvement Trust, Sri Ganganagar that possession of land was duly taken from the claimant Girdhari Ram and in any view of the matter the land had vested in it. 6. In reply to the aforesaid contentions of the learned counsel for the claimants, the learned counsel for the Municipal Council, Sri Ganganagar and Deputy Government Advocate contended that the provisions of Section 56(8) of the Central Act as amended by the Rajasthan Act of 1987 are not applicable in these cases as the awards in dispute have not been given between April 30, 1982 and September 24. 1984 and Bhag Singh v. Union Territory of Chandigarh, AIR 1985 SC 1576, has been overruled by Constitution Bench of the Supreme Court in Union- of India v. Raghuvir Singh, 1989 (2) SCC 754. 7. The first question for consideration in these appeals is whether the certified copies of the sale-deeds filed by the claimants cannot be read in evidence. It is correct that the executants of all these sale-deeds were not produced before the Civil Judge, Sri Ganganagar. The certified copies of the sale-deeds were tendered in evidence during the statements of the claimants. No objection was taken when these were tendered and exhibited. Section 61, Evidence Act provides that contents of a document may be proved either by primary or secondary evidence. Sections 65 to 73 deal with the conditions and circumstances under which secondary evidence is permissible. The failure to take objection when evidence is first tendered amounts to an admission that the circumstances contemplated exist and the conditions necessary are complied with. In such cases no objection can be taken for the first time in appeal. It has been observed in Gopal Das v. Sri Thakurji, AIR 1943 P. C. 83, as follows: -- ".............where the objection to be taken is not that the document is in itself inadmissible but that the mode of proof put forward is irregular or insufficient, it is essential that the objection should be taken at the trial before the document is marked as an exhibit and admitted to the record. A party cannot lie by until the case comes before a court of appeal and then complain for the first time of the mode of proof." If an objection would have been taken when these certified copies of the sale-deeds were tendered in evidence and exhibited, the claimants would have produced necessary evidence to prove them. It has been observed in Kalyan Singh v. Smt. Chhoti, AIR 1973 Raj 263 at p. 267 para 12, as follows : -- "If in place of primary evidence secondary evidence is admitted without any objection at the proper time then the parties are precluded from raising the question that the document has not_been proved by primary evidence but by secondary evidence. But where there is no secondary evidence as contemplated by Section 65 of the Evidence Act then the document cannot be said to have been proved either by primary evidence or by secondary evidence." 8. It may also be mentioned here that the sale-deeds Exs. A/1 to A/4 filed by the Government in casers wherefrom the appeals Nos. 19 to 21 of 1981 have arisen were tendered in evidence and exhibited during the statement of the Patwari Rameshwar Dayal DW/1. Admittedly, he was neither an executant nor an attesting witness of any of these sale-deeds. 9. These certified copies of the sale-deeds were issued by the sub-Registrar, Sri Ganganagar under Section 57, Registration Act. As such they were also admissible under Section 57(5) of the Registration Act. 10. Section 51A, Land Acquisition Act, as amended by Land Acquisition (Amendment) Act, 1984, runs as under: -- "51-A. Acceptance of certified copy as evidence. -- If any proceeding under this Act, a certified copy of a document registered under the Registration Act, 1908 (16 of 1908), including a copy given under Section 57 of that Act, may be accepted as evidence of the transaction recorded in such document." An appeal is also a proceeding, Reference of Ram Narayan Pathak v. Urmila Devi, AIR 1980 All 344 may be made here. It is a well settled law that an appellate court is bound to take into consideration the change in law which has taken place during the pendency of appeal. It has been observed in P. Venkteshwarlu v. Motor and General Traders, AIR 1975 SC 1409 para 5, as under : -- "The law we have set out is of ancient vintage. We will merely refer to Lachmeshwar Prasad Shukul v. Keshwar Lal, 1940 FCR 84, AIR 1941 FC 5 which is a leading case on the point. Gwyer C.J., in the above case, referred to the Rule adopted by the Supreme Court of the United States in Patterson v. State of Alabama, (1934) 294 US 600 at p. 607 : We have frequently held that in the exercise of our appellate jurisdiction we have power not only to correct in the judgment under review but to make such disposition of the case as justice requires. And in determining what justice does require, the court is bound to consider any change, either in fact or in law, which has supervened since the judgment was entered." The Rajasthan Land Acquisition Act, 1953 stood repealed by the Land Acquisition (Amendment) Act, 1984 (Central Act No. 68 of 1984) with effect from September 2-4,1984. This is also clear from the statement of Objects and Reasons given in the Land Acquisition (Rajasthan Amendment) Act, 1987. The provisions of the above-quoted Section 51A of the Central Act are applicable in the present appeals on the certified copies of the sale-deeds filed by the claimants are also admissible in evidence under this section. 11. The second question for consideration is whether the sale-deeds filed by the claimants were contrary to law as the lands were sold through them for the purpose of raising construction and as such cannot be looked into. It is not recited in any sale-deed that the land is being sold for the purpose of raising building thereon. It is simply recited in the sale-deed executed by Daulat Ram in favour of Mangal Ram that in case the vendee raises construction on the land, he will make payment of the amount which may be demanded by the State Government or Municipal Council. This does not mean that the sale of the land was for the purpose of raising construction. In other sale-deeds, it is simply stated in the usual way that the verdee is at liberty to use the land in the manner he may like. It also does not mean that the land is sold for raising construction thereon. Section 90A, Rajasthan Land Revenue Act does not absolutely prohibit use of agricultural land for non-agricultural purpose. Verious rules have; been framed which permit conversion of: agricultural land for many other purposes on certain terms and conditions. A term in the sale-deed directing enjoyment in perticular manner is repugnent to Section 11, Transfer of Property Act and it is ignored. It cannot, therefore, be said that the sale-deeds relied upon by the claimants cannot be looked into. 12. The third question for consideration is whether the learned Civil Judge has seriously erred in awarding compensation @ Rs. 9,500/- per bigha. The trial court has based his conclusion on the order of the Land Acquisition Officer, Sri Ganganagar dated April 27, 1979 (Ex. 1) awarding compenation for certain land situated in the adjoining chak 6e. It has been stated in ground (d) of the memorandum of appeals that there is difference of fertility and irrigation prospects of the land situated and chak 6e (of Ex. 1) and the land involved in the appeals. There is no material on the file of any case in support of this ground. On the contrary, the learned Civil Judge, Sri Ganganagar has clearly mentioned in his awards that the learned counsel for the parties admitted before him that the land situated in Chak Nos. 2e, 3e, and 6e are adjacent and similar to each other and are close to the Ganganagar city. Admittedly, the certified copy of the order dated April 27, 1979 of the Land Acquisition Officer, Sri Ganganagar has been filed in each case by the claimant. The relevant protions of this order run as under:- 3-14 163 7&1&74 33000 12]222     mi iaft;d xaxkuxj }kjk nh x;h lwpuk dh vkSlr dher 12]000@&:i;s izfr ch?kk gS tks cgqr vf/kd izrhr gksrh gS A pw¡fd fnukad 19&4&75 dh blh U;k;ky; }kjk pd 6 bZ NksVh dh bUgh Hkwfe esa ls iwoZ esa Hkqfe dk eqvkotk 9]500@&:i;s r; fd;k x;k gS rFkk ml le; 10&10&73 dks 3-03 ch?kk Hkwfe dh dher 32]600 :i;s vkSj 22&2&74 dks 4-19 ch?kk Hkwfe dh dher 50]000 :i;s Fkh tks fd lc jftLVªkj }kjk nh x;h Fkh A bu nksuksa foØ; i{kksa ds vk/kkj ij vkSlr Øe'k% 10]516@&:i;s] 10]101@&:i;s izfr ch?kk vkrk gS A fdUrq Hkwfe ds de {ks= dks ns[krs gq, mDr fcØh lEHkor% vf/kd izrhr gksrh gS D;ksafd Hkwfe dk {ks=Qy ftruk de gksxk fcØh dh nj mruh Åph vkSj p<+h gksxh A vr% pwafd izLrkfor pd 6 bZ NksVh dh Hkwfe dk eqvkotk r; fd;k tkuk gS mldk {ks=Qy vf/kd gS rFkk mi iaft;d ls tks lwpuk izkIr gqbZ gS os leLr NksVs NksVs VqdMs+ vÑf"k dk;Z gsrq foØ; gq, gS ftudk ewY; vf/kd gksuk LokHkkfod gS vr% izLrkfor pd 6 bZ NksVh dh Hkwfe dk eqvkotk 9]500@&:i;s izfr ch?kk r; fd;k tkrk gS**                                              ^^mi iath;d xaxkuxj us miyC/k fjdkMZ ds vk/kkj ij tks lwpuk Hksth gS og fuEu izdkj gS 13. Necessary particulars of the land sold through the sale-deeds whose certified copies have been filed by the parties have been shown in a tabular form by the learned Civil Judge in each judgment. The relevant portions of his judgment given in case relating to appeal No. 17/81 run as under: 14. It is correct that the sale-deed referred to in the order of the Land Acquisition Officer, Sri Ganganagar dated April 27, 1979 and also in the judgments of the learned Civil [Judge, Sri Ganganagar mostly relate to the small pieces of land, In Kausalya Devi v. Land Acquisition Officer Aurangabad, AIR 1984 SC 982 at p. 989, para 13, it has been observed as under: -- "Two principles relating to the matter of "fixation of compensation relevant for the present purpose may be kept in view. When large tracts are acquired, the transaction in respect of small properties do not offer a proper guideline. Therefore, the valuation in transactions in regard to smaller property is not taken as a real basis for determining the compensation for larger tracts of property (See Prithivi Raj Taneja v. State of Madhya Pradesh (1977) 2 SCR 633 : AIR 1977 SC 1560; PadmaUppal v. State of Punjab,(1977) 1 SCR 329 : AIR 1977 SC 580). In certain other cases this court indicated that for determining the market value of a large property on the basis of a sale transaction for smaller property a deduction should be given. In Special Land Acquisition Officer, Bangalore v. T. Adinarayan Setty (1-959) Suppl (1) SCR 404 : AIR 1959 SC 429, a reduction of 25% was indicated while there are certain other cases where the view is that the reduction should be to the extent of 1/3." The learned Civil Judge has solely based his said estimates on the sale-deed dated April 17, 1973 relating to the sale of 15 bigha and 12 biswas of land situated in chak 3e for Rs. 1,46,000/- and then order of the Land Acquisition Officer dated April 27, 1979 awarding compensation @ Rs. 9,500/- per bigha. He has not taken into consideration the potential value of the land. It has been observed by the Land Acquisition Officer in his order that according to the information furnished by the Sub-Registrar, Sri Ganganagar, the average price comes to Rs. 12,000/- per bigha and it appears to be very expensive. He has not given any reason for holding it so. The information furnished by the Sub-Registrar, Sri Ganganagar is based on the sale-deeds whose particulars have duly been furnished. They are mentioned in his order. Relevant portion has been quoted in para No. 12. 15. Neither the Land Acquisition Officer nor the learned Civil Judge has given any reason for taking into consideration the sale fetching minimum price for basing their estimate of the market value. It has been observed in Sri Rani M. Vijayalakshmamma Rao Bahadur. Ranee of Vuyyur v. The Collector of Madras, 1968 (2) SCJ 869 as under : -- "It seems to us that there is substance in the first contention of Mr. Ram Reddy. After all when the land is being compulsorily taken away from a person, he is entitled to say that he should be given the highest value which similar land in the locality is shown to have fetched in a bona fide transaction entered into between a willing purchaser and a willing seller near about the time of the acquisition. It is not disputed that the transaction represented by Exhibit Rule 19 was a few months prior to the notification under Section 4 that it was a bona fide transaction and that it was entered into between a willing purchaser and willing seller. The land comprised in the sale deed is 11 grounds and was sold at Rs. 1,961 -per ground. The land covered by exhibit Rule -27 was also sold before the notification but after the land comprised in Exhibit Rule 19 was sold. It is, true that this land was sold at Rs. 1.096 -per ground. This, however, is apparently because of two circumstances. One is that betterment levy at Rs. 500 - per ground had to be paid by the vendee and the other that the land comprised in it is very much more extensive, that is about 93 grounds or so. Whatever that may be. it seems to us to be only fair that where sale deeds pertaining to different transactions are relied on behalf of the Government, that representing the highest value should be preferred to rest unless there are strong circumstances justifying a different course. In any case we see no reason why an average of two sale-deeds should have been taken in this case." 16. It has been observed in State of Madras v. A.M. Nanjan, AIR 1976 SC 651. para 7. as follows: -- "We are unable to accept the submission that the awards in question cannot be taken as safe-guide in the matter of determination of compensation. As a matter of fact these awards given by the Collector are at least relevant material and may be in the nature of admission with regard to the value of the land on behalf of the State and if the land involved in the awards is comparable land in the reasonable proximity of the acquired land, the rates found in the said documents would be a relible material to afford a basis to work upon for determination of the compensation on a later date. The awards, therefore, cannot be dismissed as inadmissible for the purpose of determination of the compensation." 17. It is clear from the charge (chart) given in para No. 12, that the highest rate fetched was Rs. 20,000 - per bigha. Applying the deduction as laid down by Hon'ble Supreme Court, the highest price comes to Rs. 13,334 - (Rs. 20,000 - Rs. 6,666 -). In view of these facts, circumstances and authoritative observations, it can well be said that the learned Civil Judge committed an error in awarding compensation @ Rs. 9,500 - per bigha. He should have awarded compensation at the rate of Rs. 12,000 - per bigha. At this rate, the claimant Girdhar Ram has claimed compensation in his appeal No. 36 of 1981. 18. The next question for consideration is whether the learned civil Judge should not have awarded solatium @ 10% as provided under Section 23(2) of the Rajasthan Act. ft was contended by the learned counsel for the appellants that the lands were acquired for the purpose of Urban Improvement Trust. Ganganagar and as such the proviso given below Sub-Section (2) of Section 23 of the Rajasthan Act was applicable. There is no force in this contention for more than one reasons. Firstly the Land Acquisition Officer. Sri Ganganagar himself awarded solatium @ 10% and the reference filed by the Urban Improvement Trust. Sri Ganganagar was rejected._ Secondly, provisions similar to the proviso debarring solatium in cases of acquisition for the purpose of improvement and development of Trust have been held to be ultra vires of the constitution in Balammal v. State of Madras, AIR 1968 SC 1425. Its para 7 runs as under: -- "But, in our judgment, counsel for the owners are right in contending that Sub-Clause (2) of Clause 6 of the Schedule to Act 37 of 1950, insofar as it deprived the owners of the lands of the statutory addition to the market value of the lands under Sec. 23(2) of the Land Acquisition Act is violative of the equality Clause of the constitution, and is on that account void. If the State had acquired the lands for improvement of the town under the Land Acquisition Act, the acquiring authority was bound to award in addition to the market value 15 percent soletium under Section 23 (2) of the Land Acquisition Act. But by acquiring the lands under the Land Acquisition Act as modified by the Schedule to the Madras City Improvement Trust Act 37 of 1950 for the Improvement Trust which also is a public purpose, the owners are, it is claimed, deprived of the right to the statutory addition. An owner of land is ordinarily entitled to receive the solatium in addition to the market value, for compulsory acquisition of his land, if it is acquired under the Land Acquisition Act, but not if it is acquired under the Madras City Improvement Trust Act. A clear case of discrimination which infringes the guarantee of equal protection of the law arises and the provision which is more prejudicial to the owners of the lands which are compulsorily acquired just on the decisions of this court, be deemed invalid." 19. There is a great force in the contention of the learned counsel for the claimant Girdhari Ram (appellant) in appeal No. 36/81) that the learned Civil Judge seriously erred in not awarding solatium on the ground that he is still in possession of the disputed land. It provisions of Section 23 that the grant of solatium is independent of the delivery of possession. It is case of the State of Rajasthan is and Urban Improvement Trust (now Municipal Council), Sri Ganganagar that the possession of the land belonging to claimant Girdhari Ram had already been taken and it has vested in the Government. The learned Civil Judge should have granted solatium to the claimant Girdhari Ram also! @ 10%. 20. It was lastly contended by the learned counsel for the Municipal Council and by Deputy Government Advocate, that Section 28, Rajasthan Act permitted grant of interest @ 4% per annum from the date of taking of the possession of the land but the learned Civil Judge has granted interest @ 6%. As already observed above, Rajasthan Act stood repealed with effect from September 24, 1984, the day on which the Land Acquisition; (Amendment) Act, 1984 came into force. According to the decision of the Supreme Court given in Union of India v. Raghuvir Singh, 1989 (2) SCC 754, the provisions of Section 30 of this Act would not be applicable to the present awards. After the repeal of the Rajasthan Act, the provisions of the Land Acquisition Act, 1894 would be applicable This court is bound to take note of the change in law. Before the amendment of the Central Act by Land Acquisition (Amendment) Act, 1984, Section 28 provided interest @ 6%- As such the reduction of interest from 6% to 4% is not permissible. 21. It is correct that Section 28 of the Rajasthan Act and also of Central Act speak of payment of interest from the date of taking of possession of the land. It is the admitted case in the reply, paper No. 26/7, 8 & 9, of the Municipal Council, Sri Ganganagat that possession of the land was duly taken from the claimant Girdhari Ram on May 2, 1974. It is also stated in the reply that the claimant was permitted to cultivate the land for two months only. As such the learned Civil Judge committed an error in not allowing interest to the claimant Girdhari Ram. 22. Consequently, appeals Nos. 17, 18, 19, 20 and 21 of 1981 are dismissed with costs. 23. Appeal No. 36 of 1981 is allowed with costs. The appellant Girdhari Ram will get compensation at the note of Rs. 12,000. -per bigha, solatium at the rate of 10% and interest @ 6% per annum. To this extent, the award of the learned Civil Judge, Sri Ganganagar given in his case No. 1 78 is modified.

Author: M Chandra

State Of Rajasthan vs Jeo Raj And Anr. on 21 November, 1989

Rajasthan High Court

JUDGMENT G.K. Misra, C.J. 1. To appreciate the controversy facts may be stated in chronological order. Title Suit No. 191 of 1952 filed by 27 plaintiffs against 17 defendants was decreed on 13-8-1956. Title Appeal No. 154 of 1956 filed by the defendants against the judgment decreeing the plaintiffs suit was dismissed. Second Appeal No. 295 of 1959 filed by the defendants was allowed on 22-12-1961. During the pendency of the second appeal, on 23-4-1960 the plaintiffs took delivery of possession of the propertv as the defendants failed to offer security as ordered by the High Court. After their success in the second appeal the defendants filed Misc. Case No. 383 of 1962 under Section 144. Civil P. C. for restitution of Sch. A properties consisting of six acres of land and mesne profits of Rs. 22.764/- from 22nd of April. 1960 onwards. On 23-12-1965 the Misc. Case was allowed in favour of the defendants. Plaintiffs filed Misc. Appeal No. 15 of 1966 in January, 1966. Madhu Khuntia (appellant No. 19) died on the 30th of October, 1967. On 28th of March, 1968 sons and legal representatives of Madhu Khuntia filed an application far substitution. They are Parsu. Panchu, Kalandi, Golakh, Champi Bewa and Janhi Bewa. On 4th of February. 1969 the advocate for the petitioners filed a memo endorsing no instructions. Accordingly the application for substitution was dismissed on 7-8-1969. On 22-8-1969 Pahali Khuntia, a son of Madhu Khuntja who was not a party to the substitution application filed on 28-3-1968, made an application for recalling the order dated 7-8-1969 dismissing the substitution application. On 17-9-1969 this application was dismissed as a copy of the same was not served on opposite parties' advocate. On 22-7-1970 the appellants filed an application to recall the orders dated 7-8-1969 and 17-9-1969 This application was reiected on 28-10-1970. Against this order the civil revision has been filed. 2. Law is now well settled that an application for restitution under Section 144 of the Civil Procedure Code is an application for execution (See AIR 1965 SC 1477 Mahijibhai v Manibhai and AIR 1966 SC 1194, Macbool Alam Khan v. Mst. Khodaiia). By virtue of Order 22. Rule 12, Civil P. C. the doctrine of abatement has no application to execution proceedings. That rule says that nothing in Rules 3, 4 and 8 shall apply to Proceedings in execution of a decree or order. The abatement in this case did not occur during the pendency of the execution proceeding. It was during the pendency of the appeal. It has now been authoritatively pronounced that the prohibition in Order 22, Rule 12, Civil P. C. has no application to appeals against orders passed in execution proceedings (See AIR 1960 Orissa 14. Surendranath Patnaik v. Dassarathi Dutta). 3. As has already been stated, Madhu Khuntia died on 30th of October, 1967. The first application for substitution was filed on 28-3-1968. after 90 days. Whatever it mav be, this application was dismissed on 7-8-1969. The second application for substitution was filed on 22-8-1969 by one of the sons. Again that application was dismissed on 17-9-1969. This shows that the appellants were very negligent in the matter of substitution. No. sufficient cause has been shown as to why the delay will be condoned and abatement set aside. The learned Additional District Judge was. therefore, right in rejecting the application for substitution. 4. I do not find any merit in this revision which is accordingly dismissed; but in the circumstances, without costs.

Author: G Misra

Kusun Samal And Ors. vs Banamali Roul And Ors. on 31 July, 1973

Orissa High Court

JUDGMENT Gokal Chand Mital, J. 1. The Punjab State Co-operative Supply and Marketing Federation Ltd., a co-operative society (hereinafter called "the assessee") carried on business in purchase and sale of wheat, paddy and other agricultural produce from its members. During the year relevant to the assessment year 1967-68, the assessee had income of Rs. 40,44,844. Since the aforesaid income was derived from the marketing of the agricultural produce of its members, it was claimed that under Section 81(i)c of the Income-tax Act, 1961 (for short "the Act"), which provision stands omitted with effect from April 1, 1968, and is incorporated in Section 80P(2)(a)(iii) with effect from the same date, the same had to be deducted in computing the income. 2. The Income-tax Officer did not allow the deduction on the ground that the agricultural produce was not raised by the members of the society. 3. On appeal, the Appellate Assistant Commissioner allowed the deduction in view of the majority decision of the Appellate Tribunal, Delhi Bench, in the case of National Agricultural Co-operative Marketing Federation Ltd., wherein it was held that the words "agricultural produce of" means agricultural produce belonging to the members and not agricultural produce raised by the members. The Tribunal confirmed the decision of the Appellate Assistant Commissioner. 4. Another point which cropped up for consideration was about the receipt of Rs. 40,000 by the assessee from the National Co-operative Development Corporation by way of subsidy to compensate the assessee by 2 per cent. of the purchases to meet the loss which the assessee may have incurred on account of price fluctations. According to the assessee, it was a capital receipt but the Income-tax Officer took the view that the receipt was incidental to carry on the business, and, therefore, formed part of its taxable income. However, on appeal, the Appellate Assistant Commissioner took the view that as he had held that the income from purchase and sale of agricultural produce was exempt from payment of income-tax, the subsidy of Rs. 40,000 was also exempt However, he held that the amount be clubbed with income for rate purposes only. The Tribunal upheld this view of the Appellate Assistant Commissioner. 5. Some more points were agitated before the Tribunal but it has referred only the following question on the facts noticed above : "Whether, on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal erred in law in holding that the income from the purchase and sale of wheat, paddy, etc., amounting to Rs. 40,44,844 and the subsidy of Rs. 40,000 incidental to such business received from the National Co-operative Development Corporation was exempt from tax under Section 81(i)(c) of the Income-tax Act, 1961 ?" 6. So far as the first part of question relating to the income derived from the purchase and sale of foodgrains from members is concerned, we have held in I. T. Reference No. 95 of 1982 (CIT v. Haryana State Cooperative Supply and Marketing Federation Ltd.--[1990] 182 ITR 53) decided on March 21, 1989, that even if a member is not a producer of agricultural produce, the income derived from purchase and sale of agricultural produce from a member is exempt from levy of income-tax and such income is to be deducted in computing the total income of the asses-see. We follow that view. 7. As regards the second point regarding receipt of subsidy, in Ludhiana Central Co-operative Consumers' Stores Ltd. v. CIT [1980] 122 ITR 942 (P & H) and V. S. S. V. Meenakshi Achi v. CIT [1966] 60 ITR 253 at 260 (SC), it has been held that the character of the receipt is to be considered and if a subsidy was given towards the purchase price of food-grains, it will partake of the character of the purchase price being reduced by the amount of subsidy with the result that the income will go up by the amount of the subsidy. Even if the income of the assessee goes up by Rs. 40,000, since this relates to the sale, and purchase of agricultural produce from its members, this would also be deducted while computing the total income of the assessee. 8. For the reasons recorded above, we answer the question in favour of the assessee and in the affirmative. No costs.

Author: G C Mital

Commissioner Of Income-Tax vs Punjab State Co-Operative Supply ... on 4 April, 1989

Punjab-Haryana High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.33620 of 2010 JITAN SINGH S/o Sri Upendra Singh, R/O of village-Chaugaon, P.S.-Sirdalla, District-Nawada. Versus STATE OF BIHAR ----------- Md.S. ( Rakesh Kumar, J.) 3. 23.2.2011. Heard Mr. Rajeev Kumar Singh, learned counsel for the petitioner and Mrs. Rita Verma, learned Additional Public Prosecutor for the State. The petitioner, who is in custody in connection with Sirdala P.S. Case No.27 of 2010 for the offence under sections 448, 341, 342, 376G and 380 of the Indian Penal Code, has prayed for grant of bail. In this case a supplementary affidavit was filed on behalf of the petitioner to show that during the pendency of the present petition compromise in between the parties have already arrived and the compromise petition was filed in the court of Chief Judicial Magistrate, Nawada on 29.11.2010. It was submitted by learned counsel for the petitioner that, even on the next day of the occurrence, both the parties had settled their dispute vide annexure-2 to the petition. It was further submitted that had there been a case of gang rape upon the victim, who was pregnant of about eight months, there was no possibility to give birth of a healthy child. It was also submitted that despite the fact that the occurrence had taken place on 1.3.2010, first information report was got lodged on 5.3.2010. On the aforesaid ground, it has been prayed to release the petitioner on bail. In the first information report itself, specific allegation has been made by the victim that she was gang raped by the petitioner and others in presence of her husband and other family members. In this case, after investigation, charge-sheet has already been submitted. Keeping in view the nature of allegation, the court is not inclined to grant bail to the petitioner. Accordingly, prayer for bail stands rejected.

Jitan Singh vs State Of Bihar on 23 February, 2011

Patna High Court - Orders

JUDGMENT Piggott, J. 1. I review of Facts leading up to the Institution of the suit. 1. The facts out of this, litigation arise may be stated as follows. About the, end of the year 1900 there were living in Agra four brothers, named Anandi Lal, Narain Das, Ram Dayal and Sham Lal, After the death of their father in the preceding year there had been a separation, accompanied by a complete partition of the joint family assets, between the, brothers. This, again, was speedily followed by a business partnership between Anandi Lal and Ram Narain. No deed of partnership was ever drawn up, but the two brothers undoubtedly re-united in business, while maintaining their status as separated Hindus. Early in 1901 Anandi Lal fell into ill health; reading between the lines of the evidence it seems fairly clear that he was suffering from consumption, and knew it. On May 29th, 1901, he drew up his last Will and testament, which was presented for registration two days later at his residence in the City of Agra. It is admitted that this document (page A 23 of our record) was executed by Anandi Lal and that the following persons signed it as attesting witnesses: Narain Das and Ram Dayal (two of the brothers), also Dwarka Das, Damodar Das, Makhan Lal, Ghasi Ram and Badri Das. The document begins by reciting the existence of a business partnership between the executant and Narain Das in four specified shops, in which the interest of Anandi Lal is ten-sixteenths and that of Narain Das is six-sixteenths. It then declares that the heirs of the executant, both in respect of his interest in the aforesaid business and in all his other properties, are his wife, Musammat Chameli, and his son Faqira, now two months old. It then proceeds to create an elaborate trust for the benefit of the said 1+aqira, or Faqir Chand, appointing as trustees Narain Das (the brother) and four of the attesting witnesses, namely, Makhan Lal, Damodar Das ("who is my relative"), Dwarka Das and Ghasi Ram "who is my old karinda and a very honest man in whom I have great confidence." The trustees are to see to it that the partnership business is carried on until Faqira attains majority and elaborate instructions are laid down for their guidance. Provision is made for contingencies which never in fact occurred, such as the premature death of Faqira, the adoption by Musammat Chameli of another son, or the death of that lady herself. Musammat Chameli takes a monthly allowance of forty rupees, with a lump sum in the event of her desiring to go on pilgrimage; the remaining assets are to be held in trust wholly for the benefit of the minor son. In no event, not even if faqira should die and no son be adopted, in his place, shall Musammat Chameli "have any power or right to interfere with my business in any way." The executors or trustees may fill up vacancies in their own body caused by death. They are to see the business carried on "with their advice, consultation and unanimity. They should watch and protect the whole of my property, and no such measure should be adopted as may lead to the waste of any part of my money or property." Only in certain specified eventualities are they empowered to dissolve the business partnership. In the meantime, they "should keep defraying the expenses incurred in maintaining Faqira, my minor son, and imparting education, etc., and also the proper expenses incurred in marriages, funerals, illness, etc." 2. There has been some little controversy before us as to how far the persons who signed this document as attesting witnessed are affected with notice of its contents. I think I may dispose of this point briefly and at once. On the pleadings and the evidence, as well as in consideration of the manifest probabilities of the case, I have no doubt that the trustees or executors famed in the Will, when they attested this document, did so with will knowledge of the trust thereby created and of their own appointment as executors: also, that by signing it they intended to signify, and did in fact signify, their own acceptance of the trust. It is a more arguable point how far any of them, and more particularly Narain Das and Ghasi Ram, are bound, in virtue of their signatures, to an admission of any recitals ,in the deed regarding the nature and extent of the partnership business, or of Anandi Lal's share in the same. I note, however, that the more material points, such as the designation and location of the four shops and the specifications of the shares of Anandi Lal and Narain Das, are admitted in the pleadings. The question of the accuracy of Anandi Lal's assertion that his personal share in the partnership capital amounted to Rs. 58,000 on the date of the Will, does not arise at the stage which the litigation has now reached. 3. Anandi Lal died on the 13th October 1901. It is alleged by the defendants to this suit that, in the interval, namely, on the 27th June 1901, he and Narain Das executed, each in favour of the other, two unregistered documents (Exhibits A and B, pages 25 and 26R) which materially modified the conditions of the partnership. The defendants are put to proof of these documents and the question whether they have proved the same will be discussed in due course. 4. In the month of October 1905 Narain Das was on his death-bed, and he died on the 23rd of that month. Two days previously he executed three documents around which the controversy in this litigation largely hinges; they were presented for registration by Narain Das at his own residence in the City of Agra, on the 23rd October 1905, within about four hours of his death. They are marked Exhibits C, F and E and are re-produced at pages R 27 to R 37 of our record. 5. Two of these, viz., Exhibits F and E, are documents of which Narain Das is the sole executant, their execution is admitted, the controversy is as to their binding effect, if any, on the interests of Faqir Chand. Their main importance lies in the fact that their drafting, execution and registration formed part of the same transaction as resulted in the preparation and partial registration of the remaining document, Exhibit C. It will be convenient to examine the three documents at once. Exhibit E, executed by Narain Das alone, and duly registered in his name, recites that the executant is the owner of a half share in a certain building in the City of Agra, "in the kothi of Mr. Campbell," originally purchased by him jointly with his brother Anadi Lal. He relinquishes this moiety share to Faqira, minor son of Anandi Lal and owner of the other moiety, in lieu of a sum of Rs. 6,500 for which the executant has already received credit upon a settlement of partnership recounts between himself and the lawful guardians of the said minor. Exhibit F is the last Will and testament of Narain Das. It was undoubtedly executed by him and duly registered in his name under the circumstance already stated. It starts with the dissolution of the partnership between himself and Faqira, treated as an accomplished fact, the executant describing himself as the sole owner of the seven shops into which the partnership business appears to have now expanded. It recites that the executant leaves as his sole heirs his wife, Musammat Pisto, and his daughter, Musammat Munni: it appoints as executors to carry on the business for the, benifit of the said heirs three persons. One is Ghasi Ram, the faithful servant whom Anandi Lal had already chosen as one of the trustees under his Will, the other two are the surviving brothers, Ram Dayal and Sham Lal. Musammat Pisto is given authority to adopt a son after the testator's death. The executors are to carry on the business, the control of which is vested in Ram Dayal and Sham Lal; but minute directions are given in respect of a variety of matters, including the apportionment of the profits. It is laid down that the first charge on the net profits is to be a deduction of ten annas per cent in favour of the legatees; the balance is to be divided, one-fourth going to Ghasi Ram aid three-fourths to the executors for the benefit of the legatees. In one pirticular shop Dwarka Das and Ratan Lal are given an interest of a one-eighth share each in the profits, after the deduction of ten annas per cent.; while a similar interest to the extent of three-sixteenths of the profits is created in favour of a servant of the firm named Chhatar Mal. Provision is made for the remuneration of these three men by monthly salaries in the event of the shops in which they are concerned being carried on at a loss; but there is no similar provision in respect of Ghasi Ram. The provisions of the Will which purport to affect the minor Faqira are important enough to be worth quoting textually: "I have to pay Rs. 44,439 to Faqira minor on account of the share of Anandi Lal in partnership business, and Rs. 2,000 belonging to Faqira minor which is with me for meeting the expenses, of a dharamsala and I shall pay the same. If I fail to do so the said executors shall have power to take out of the funds of my business Rs. 44,439 due to Faqira minor and purchase any property with the said amount. Lala Ram Dayal and Sham Lal aforesaid shall have power to keep the money in deposit with them so long as they do not acquire any property, to meet the expenses of Musammat Chameli, widow of Anandi Lal, and Faqira minor with the interest on the said money, to take a receipt from the executors of Anandi Lal when property is purchased and to look after the minor and the property, Lala Ram Dayal and Sham Lal shall keep in deposit with them Rs. 2,000 out of the fund, of my business and Rs. 2,000 due to Faqira minor aforesaid, in all Rs. 4,000, and shall continue to meet the expenses of the joint dharamsala of me the executant and Anandi Lal." 6. I now come to the important document. Exhibit C. It purports to be a bilateral agreement for the dissolution of the partnership referred to in the Will of Anandi Lal, and to be executed by Narain Das on the one side and on the other by Makhan Lal, Damodar Das, Ghasi Ram and Dwarka Das, the four remaining trustees, on behalf of the minor Faqira, as well as by Musammat Chameli "as the guardian of her minor son Faqira." It begins with a statement of the partnership business, specifying the seven shops to which it had by this time extended, and speaking of the same as "carried on in partnership with Anandi Lal, deceased, whose son is Faqira minor." It then continues: "The accounts of the said shops have now been examined and the partnership has been dissolved. Rupees 52,939 have, after allowing credit for the money for the construction of the dharamsala, been found due to Faqira, minor aforesaid son of Anandi Lal, and I, Lala Narain Das. I aforesaid, Second Party became the owner of the entire business of the said shops, money dealings and all kinds of goods and articles in the shops." The remaining executants, described as the "First party" purport to acknowledge the receipt of this sum of Rs. 52,939 in full discharge of all claims on the part of the minor in respect of his share in the partnership, according to the following detail: (a) Rs. 6,500 is credited back to Narain Das as the price of a moiety share referred to in the agreement, Exhibit C. (b) Rs. 2,000 are to be made over to Ram Dayal and Sham Lal on the understanding that they will pay interest on the same at 6 per cent, per annum and apply this interest to "meeting the expenses of the dharamsala." (c) Rs. 44,439 Narain Das acknow, ledges to be in deposit with himself, and he says that he will "purchase property" with the same within three months. Until this is done, however, this very considerable sum of money is to be deposited with Ram Dayal and Sham Lal, and the document continues: "The interest of the said money shall continue to be accumulated and the expenses of Musammat Chameli and the minor aforesaid shall be met therefrom. Lala Ram Dayal and Sham Lal shall be liable to look after the property which exists at present or shall be purchased in future, the said minor and the business which may be carried on in future." The result of these transactions, considered as a whole, on the position of Ram Dayal and Sham Lal is peculiar. Under the Will of Narain Das they become the de facto managers of the partnership business. Out of the assets of that business they are to take Rs. 44,439 plus Rs. 2,000 and use the same at their discretion, provided they keep up a certain dharamsala and take over from the trustees all responsibility for the maintenance of Musammat Chameli and her minor son. If ink and paper can do it, the trustees have divested themselves of all responsibility aid handed over their duties, along with the assets of the minor, to two brothers of Anandi Lal whom that gentleman, whatever may have been his reasons, had carefully excluded altogether from the provisions of his Will, Sham Lal tells us in his deposition (page 71R) that, as a matter of fact, he used the deposit of Rs. 44,439 to start a shop under the name of "Chhatar Mal-Anandi Lal," which was closed after carrying on business for eight or nine years. Out of the profits of this shop he supported the minor and Musammat Chameli, and he holds to the credit of Faqir Chand a balance now amounting to Rs. 47,000 and Rs. 48.000. 7. II.--Institution of the suit: Array of Parties: Their pleadings. 8. Faqir Chand must have attained his majority sometime in the month of March 1919. In May of that year he issued notices to his two surviving trustees, Makhan Lal and Ghasi Ram, and to Nanak Ram, son of Narain Das, in which he asked for an account of their dealings with the partnership business in which he claimed a (ten-sixteenths share in accordance with the provisions of his father's Will. He intimated, further, that he desired a dissolution of the partnership and separate possession over his own share in the accumulated assets. He received very guarded replies, drafted and forwarded under legal advice. The most significant passage in these replies is to be found in the second paragraph of that sent in by Ghasi Ram, which is to the following effect: "All the accounts of Lala Faqir Chand were settled with Musammat Chameli, natural guardian and mother of the said Lala Fakir Chand, in the lifetime of Lala Narain Das, and she took all the accounts and the partnership Was dissolved. The whole amount including interest, etc., which was found due to Lala Faqir Chand was deposited with Lala Ram Dayal and Sham Lal, proprietors of the firm of Chhater Mai-Ram Dayal, and Faqir Chand and his another benefited by the said sum and set up even a separate business with it." The result was the institution, on the 12th of July 1919, of the suit with which we are now concerned. Lala Faqir Chand, as plaintiff, impleads seven persons as defendants. The first three are Nanag Ram, described in the plaint as alleging himself to be the adopted son of Lala Narain Das, Musammat Pisto, widow of the said Narain Das, and Musammat Mohan Dei, his daughter, these three are impleaded as representing between them the entire estate of Narain Das. The fourth defendant is Ghasi Ram, impleaded as a trustee under the Will o£ Anandi Lal and also as a partner in the Arm. The next two defendants are Ram Dayal and Sham Lal, impleaded as the de facto managers of the partnership business, and also as persons into whose hands assets of that business in which the plaintiff claims a share have actually passed. The remaining defendant is Lala Makhan Lal, the other surviving trustee. It is an admitted fact that, besides Narain Das himself, two other trustees, namely, Dwarka Das and Damodar Das, had died prior to the institution of the suit. The plaint is a lengthy document and it does not seem to me surprising, under the circumstances, that the plaintiff should have spread his net wide and appealed to the Court in broad terms to give him such relief as might be found appropriate, after a complete investigation of the facts, and against such persons as upon the facts so ascertained might be found liable. Undoubtedly, the plaint as drafted is, first and foremost, a claim for dissolution of partnership and settlement of accounts between the plaintiff and the remaining partners. It is equally certain that the liability of Ghasi Ram, as trustee under the Will of Anandi Lal, is asserted and made part of the cause of action, while Makhan Lal is impleaded solely and entirely by reason of his liability as a surviving trustee. Ian further of opinion, though I do not regard the point as material, that as against the heirs of Narain Das the plaint is so drafted as to claim relief against the estate of Narain Das, both on the ground of partnership in the business, and on the ground of that gentleman's position as one of the trustees. The pleadings of the first three defendants raised a question which is certainly not before us now in appeal. Musammat Mohan Dei denied the adoption of Nanag Ram and apparently wished to have it put in issue at this trial. So far as we are now concerned, we take it as established, and not contested by any pleadings now before us, that Nanak Ram was validly adopted by Musammat Pisto, widow of Narain Das, and that he is in fact, as he has asserted himself to be throughout this litigation, the heir of Narain Das and the representative of his estate. In his written statement, as well as in that of Ghasi Ram, various pleas were taken of a more or less technical character. These defendants were obviously anxious to tie the plaintiff down to a suit for dissolution of partnership pure and simple, so that the suit might fail altogether in the event of the Court's finding that the partnership had ceased to exist, on some date in the year 1905. They made it a grievance that, if the plaintiff desired to enforce any liability against the trustees appointed in his father's Will, he should not have impleaded the heirs or legal representatives of the deceased trustees, Damodar Das and Dwarka Das. Nanag Ram distinctly pleaded that the partnership was dissolved by the agreement Exhibit C of the 21st of October 1905, insisting, on the fact that this agreement was entered into, not only with Musammat Chameli, but with all the trustees other than Narain Das himself. He contended that this dissolution of partnership was preceded by an honest and thorough examination of the accounts and that the plaintiff was given his full share in the partner--ship assets. In respect of that share it was pleaded that, although the original partnership between Anandi Lal and Narain Das had undoubtedly been entered into on the basis that the former held a share of ten-sixteenths and the latter one of six-sixteenths only, this arrangement had been modified by the o execution of the two documents, Exhibits A and B of the 27th of June 1901 already referred to, in accordance with which the shares of the partners had been fixed from that date at one moiety each. There was also a plea to the effect that the plaintiff had so benefited by the settlement embodied in the agreement of the 21st of October 1905, aid approbated the Same since he attained majority, that he was in some way estopped from attempting to go behind that settlement. The written statement of Ghasi Ram follows much the same lines. There has been some little argument before us as to whether Ghasi Ram did or did not admit himself to have been at any time a partner in the business referred to in the plaint. I do not think there can be any real doubt as to the position taken up by Ghasi Ram. He never admitted having been a partner of the plaintiffs at any time, his case being that the partnership in which the plaintiff was concerned came to an end in October 1905. But he did admit having become a partner in business with the heirs and successors of Narain Das from the date of that gentleman's death, and I might add that it is obvious that he did become a partner under the terms of the Will of Narain Das. In one particular, the written statemet filed by Nanag Ram goes beyond that of Ghasi Ram. The latter, in my opinion, distinctly pins himself down to the plea of a dissolution of partnership effected in the lifetime of Narain Das by the execution of the deed, Exhibit C. The former in Paragraph 32 of his defence, does put forward as a sort of alternative pleading the allegation that any partnership existing in the lifetime of Narain Das was, in any event, dissolved by that gentleman's death. Of the remaining defendants, Ram Dayal entered no appearance. Sham Lal, filed a brief written statement, in which he alleged that he, at any rate, had no concern in any business in which the plaintiff was ever a partner, that the plaint disclosed no cause of action as against him, that he had kept full accounts of all monies entrusted to him for the benefit of the plaintiff, and that he was ready at any moment to pay into Court any sum of money which the Court might direct. I think I may fairly add in this connection that, although Ram Dayal entered no formal appearance, there are a number of pleadings on the record which show that he practically made common cause with Sham Lal and the two fought the case together. At one stage of the trial in the Court below these defendants offered to pay into Court a substantial sum of money which they admitted themselves to be holding in deposit on the plaintiff's account. At the last moment, however, the Counsel representing these defendants insisted that his clients would make no such payment into Court, unless the plaintiff were prepared to accept the same as a full and complete discharge of their liability towards him. As the plaintiff, tot unnaturally, declined to accept any such condition, no deposit was ever made. The last defendant, Makhan Lal, was eventually exempted by the plaintiff from his claim. He went in to the witness-box on the plaintiff's behalf and gave evidence if considerable importance to which I shall have to refer later. There has been no little controversy as to the credibility of the evidence given by Makhan Lal, and it has been suggested that he has colluded with the plaintiff and made statement in the latter's favour, in return for the latter's exempting him from liability in respect of any misconduct or negligence in the performance of his duties as one of the trustees. On this point I think I might say at once that Makhan Lal, on his own showing, did so neglect his duties as a trustee that it would have been open to the plaintiff, as a matter of law, to hold him liable, in the last resort, for any loss which the plaintiff might prove that he had suffered in consequence of such neglect. On the other hand, it is obvious enough that Makhan Lal, from the plaintiff's point of view, is not worth powder and shot. There is no reason to doubt that the defendants Nanag Ram, Ghasi Ram, Ram Dayal and Shy am Lal are in a position between them to make good to the plaintiff any sum which may be found due to him, and the latter had no adequate motive for pressing his case against Makhan Lal. 9. What I have called the technical pleas sought to be raised by various defendants have no real force. As a matter of fact, in the conclusions at which I have arrived on the main issues of fact and of law, the plaintiff has made out his case for relief by way of a decree for dissolution of partnership and rendition of accounts; but in any case I think he was quite entitled, in one and the same suit, to claim relief either as a partner in a subsisting business, or in the alternative as against trustees who had played ducks and drakes with his interests durirg his minority. Nor was he bound to implead the legal representatives of the deceased trustees. Damodar Das and Dwarka Das. The liability of the trustees was joint and several and the defendant Nanag Ram was being impleaded principally on the allegation of a subsisting partnership, although his possible liability as an heir in possession of the assets of a defaulting trustee was also included. The position of the defendants, Ram Dayal and Sham Lal, was certainly peculiar; but it arose naturally and inevitably out of the responsibilities which they took upon themselves in connection with the Will of Narain Das and the transactions which followed thereupon. If the plaintiff succeeds in making out his case that there had never been any dissolution in law of the partnership which subsisted between himself and Narain Das the position of these two defendants seems to me clear enough. As executors under the Will of Narain Das they virtually took over the entire assets of the partnership business and made themselves responsible for its management. They chose to open certain books of account, according to which the greater part of the business was carried on as a business in which the partners were Ghasi Ram and the heirs of Narain Das three other employees of the firm being remunerated by way of a percentage on the profits, earned by particular branches of the business. One shop was carried on in the building at Agra referred to in the exhibits as the kothi of Mr. Campbell. This the defendants elected to treat as a separate business, carried on for the benefit, of Faqir Chand, alone, the capital of which was stated to be a specified sum and earmarked as the separate property of this particular person. The plaintiff, however, supposing that he makes good his plea as to there having been no legal dissolution of the partnership, is entitled to go behind this artificial division of the partnership assets and to have all the shops carried on under the management of Ram Dayal and Sham Lal, including the shop described as that of Chhater Mal, Anandi Lal in Mr. Campbell's kothi at Agra, treated as branches of one and the same partnership business. As the de facto managers of this business, Ram Dayal and Sham Lal are liable, along with Nanag Ram and Ghasi Ram, to render to the plaintiff true accounts of the same. As to any liability which might attach to these two defendants in the alternative, that is to say, in the event of its being found against the plaintiff that the previously existing partnership was dissolved, either on the 1st of October 1905 by the execution of the document, Exhibit C, or on the 23rd of October 1905 at the death of Narain Das, this question does not really arise in view of the findings I propose to record on the main issues in the case. I am, however, clearly of opinion that, on any possible view of the pleadings, these two defendants were admittedly liable to the plaintiff for a sum of money stated by Sham Lal himself in his deposition to be something between Rs. 4,000 and Rs. 48,000. This is the first cage I have ever come across in which two defendants against whom relief was undoubtedly sought (at least in the alternative) by way of a decree for money, who admit themselves to be liable to the plaintiff for a large sum of money, have had the entire suit against them dismissed, merely on the ground that they had offered to pay that money into Court, but had eventually declined to, do so except upon a condition which it was obviously impossible for the plaintiff to accept. 10. The case went to trial in the Court below upon a multitude of issues, loosely framed and overlapping one another to such an extent that seven out of the thirteen issues were finally lumped together by the Trial Court when it came to write its judgment. In substance, the learned Subordinate Judge has found that the agreement, Exhibit A and Exhibit B, of the 27th of June 1901, are proved, so that from this date Anandi Lal and Narain Das became owners of the partnership business in equal shares. He has found that the agreement, Exhibit C, of the 21st of October 1905, was duly executed by all the persons who purport to have executed it, that it is binding on the plaintiff, that it operated as a dissolution of the previously existing partnership and as a complete discharge, in favour of Narain Das and his heirs after him, in respect of all liabilities in connection with the said partnership. Curiously enough, as it seems to me, this finding has nevertheless been qualified. The learned Subordinate Judge has held that the settlement of accounts effected on the 21st of October 1905 was incomplete, in that it failed to take into account the profits for the last year of the partnership. He has held that the heirs of Narain Das (from the use of this word in the plural I presume that he means defendants Nos. 1, 2 and 3) are liable to render an account to the plaintiff from a date somewhat vaguely specified in the decree up to either the 21st or the 23rd of October 1905, the period indicated being apparently the last of the partnership. The Trial Court has further-found, in the alternative, that if the previously subsisting partnership was not dissolved on the 21st of October 1905, it came to an end two days later (October 23rd, 1905), on the death of Narain Das, be' operation of the principle of law embodied in Section 353, Clause (10), of the Indian Contract Act, IX of 1872. He has held that all the defendants, other than the heirs of Narain Das, are exempt from liability so far as this suit is concerned, because the suit could only be treated as one for dissolution of partnership and rendition of accounts, and could succeed if at all on that basis alone. Against the decree framed in accord wee with these findings the plaintiff has filed First Appeal No. 239 of 1920. The memorandum of appeal is unnecessarily prolix and argumentative. Some of the paragraphs are merely general pleas, to the effect that the conclusions arrived at by the Court below are wrong. A number of others are directed against details in the procedure followed in the Trial Court: none of these seemed to me of any particular consequence, or to be seriously pressed upon us in the course of argument. A large number of pleas, argumentative in form, attack the finding of the Trial Court as to the execution of the deed, Exhibit C, of the 21st of October 1905 by the trustees other than Narain Das and Ghasi Ram, and as to its validity against the plaintiff, either by reason of its execution by Musammat Chameli, or in the event of its execution by, the whole body of trustees being proved. Along with this question it will be necessary to take the question whether the two unregistered deeds, Exhibits A and B, of the 27th of June 1901, are genuine and valid. For one thing, the settlement of the 21st of October 1905 avowedly proceeds upon the basis that Anandi Lal and Narain Das were partners in equal shares on the date of Anandi Lal's death: it being admitted that the partnership was constituted on the basis that Anandi Lal held a ten-sixteenths and Narain Das a six-sixteenths share, the agreement of the 21st of October 1905 fails; independently of any other considerations unless the contesting defendants can prove affirmatively that Anandi Lal had agreed before his death to an arrangement which reduced his share in the divisible profits to half. Moreover, it so happens that a signature purporting to be that of the trustee Damodar Das who is a brother of Musammat Cameli, the widow of Anandi Lal, appears as an attesting witness both to Exhibit A (Anandi Lal's agreement of the 27th of June 1901) and as an executant of Exhibit C (the agreement of the 21st October of 1905). It was a matter of particular importance for the defendants to prove that Damodar Das had signed both these documents, and the result is that a mass of evidence has been produced on this point which must, in my opinion, either be accepted as proving the signature of Damodar Das to both documents, or must be held insufficient to prove his signature to either. Of the remaining pleas in the plaintiff's memorandum of appeal there are only two which seem to require notice. One is against the Trial Court's finding by which Ghasi Ram is exempted from all liability to render accounts and awarded his full costs: the other relates to the entire dismissal of the suit as against the defendants Ram Dayal and Sham Lal. We have also before us a petition of objections by the defendant-respondent, Sham Lal, to the effect that the Trial Court ought to have awarded him his costs. Finally, a separate, appeal, First Appeal No. 347 of 1921, has been filed by the defendant, Nanag Ram. This defendant not unnaturally as it seems to me, contends that the Court below, on its own findings, was clearly mistaken in passing any decree whatever against him. If the agreement, Exhibit C, of the 21st of October 1905, is a duly executed document and binding on the plaintiff, it must operate as a full discharge of Narain Das from all liability in respect of the partnership account other than the liability stated in the agreement itself. It has been conceded before us in argument that, if this Court on the plaintiff's appeal; arrives at the conclusion either that the deed, Exhibit C, is no proved to have been executed by all the trustees under the Will of Anandi Lal, o that this document even if so executed not binding on the plaintiff, or does no operate as a full discharge in favour Narain Das, then there is nothing in this appeal which can be pressed. III.--Two Main Issues of Fact. 11. I now take up the two main issues o fact in the case, which (for reasons already stated) I think must be considered to-gether. 12. Is it proved that Anandi Lal executed the agreement, Exhibit A, of June 27th, 1901? 13. It is proved that Makhan Lal, Damodar Das and Dwarka Das, that is to say, the trustees other than Narain Das and Ghasi Ram, executed the agreement. Exhibit C, of October 21st, 1905? 14. I have come to the conclusion that the finding on both these issues must be in the negative, and that it is, therefore, unnecessary to consider the further questions of law which could only arise in the event of an affirmative finding on the question of execution. 15. The plaintiff probably did himself harm in the Court below by overstating his case on these issues. He denounced Exhibit A, as also the corresponding document, Exhibit B of the same date, purporting to be executed by Narain Das, as forgeries concocted for the purposes of the present suit. In doing this he laid much stress on certain details apparent on the face of the documents themselves. There is an obvious erasure, unattested, in the middle of Exhibit A; while the companion document not merely shows a long erasure, purporting to be attested by the signature of Narain Das, but the scribe has made a curious blunder In the dating. He obviously wrote, in the first instance, "July 27th and then altered the name of the month clumsily tO read like "Tune" it was on this last detail that the plaintiff particularly insisted as suggestive of a forgery perpetrated in the month of July 1919, just after this suit was launched. These points seem to me of little weight and susceptible of being argued both ways. The two documents embody an agreement such as Anandi Lal and Narain Das might very naturally have come to under the circumstances in which they were placed, in view of the serious illness and anticipated decease of Anandi Lal. A perfectly conceivable theory would be that the two brothers had in fact discussed some such arrangement, but had never reduced it to writing, and that Narain Das actually executed Exhibit B and forged his brothers signature to Exhibit A, shortly after the latter's death. My main point, however is that it is not for the plaintiff to prove a forgery The defendants produced these documents; they are not thirty years old and can scarcely be said to have been produced from proper custody, for Exhibit B ought, strictly speaking, to have been made over to the executors of Anandi Lal's Will, if not to Anandi Lal in his life-time. There is also a certain probability that the brothers, if they intended to enter into a transaction so important, would have taken the precaution to register the documents. I should attach less importance to this agreement, If I were satisfied that Damodar Das, the brother of Musammat Chameli and one of the trustees under Anandi Lal's Will, actually signed both documents as an attesting witness Here however, I am in danger of arguing in a circle; for if I were satisfied as to the signature of Damodar Das. I should hold tie two exhibits to be proved. Before however, I turn to the direct evidence I must mention one other argument from probability. Much stree was laid on behalf of the defendants on the fact that the partnership accounts from the death of Anandi Lal to that of Narain Das were kept on the basis of an equal division of profits between. Narain Das and Faqir Chand The argument has no great force in itself unless it could be shown that Damodar Das or some other trustee (not Narain Das or Ghasi Ram) troubled himself to exercise some elective supervision over the accounts; but it is open to a most powerful rejoinder. The agreement embodied in Exhibits A and B does not merely effect a re-apportionment of the shares in the partnership; it also defines the partnership capital, and provides that Anandi Lal shall be entitled to charge interest upon all capital in excess of Rs. 40,000 which he may invest in the business. The accounts which have been submitted to us show that Anandi Lal's capital was in excess of this sum and that he was not credited with interest. 16. I return now to the plain issue: "Have the defendants proved, by such evidence as the Court, in view of all the circumstances, may fairly accept and act upon, that Anandi Lal signed Exhibit A?" 17. The document purports to be attested by Ghasi Ram (defendant No. 4) by Chhatar Mal (an old servant of the firm, in whose favour there is a provision in the Will of Narain Das) and by Damodar Das. It also purports to have been written "by the pen of Mirza Wazir Beg, scribe, Agra" 18. Ghasi Ram went into the witness-box and deposed to the due execution of Exhibits A and B and their attestation by the marginal witnesses. In cross-examination he stated that both brothers had intended to register the two agreements and that he did not know why they abandoned that intention. He offered no explanation of the fact that both documents "remained in the shop" and that Exhibit B was never made over to Anandi Lal, or to the executors of his Will. His attention was drawn to one peculiar feature about the attestation of both documents: over the signatures of Ghasi Ram and Chhatar Mal, the scribe has written out their names and parentage in the Urdu character, adding in the case of Chhatar Mal his caste and residence. On each document the signature of Damodar Das bears every appearance of having been added after the attestation was otherwise complete; it is an all but illegible scrawl in the Mahajani or Sarafi character, underneath a simple line, with no specification of the witness in the Urdu handwriting of the scribe. All that Ghasi Ram could say was that the scribe was certainly present when Damodar Das signed; that all three attesting witnesses affixed their signatures in succession at one and the same time, and that he could suggest no explanation of the pecularity to which his attention had been drawn. He was positive also (and the importance of this point will appear presently) that the scribe of Exhibits A and B was the same "Wazir Beg" wlo had written out the Will of Anandi Lal. 19. The signature of the attesting witness Chhatar Mal, who died in 1906 or 1507, was identified by his grandson, Lachhman Das. I attach little importance to this: Chhatar Mal was an old Servant of the firm; his position and prospects were improved by the will of Narain Das and he might well have consented to sign his name in the margin of any document handed over to him by Narain Das, without; inquiring too scrupulously what the paper contained. 20. To prove the really critical signature of Damodar Das, the defendants called one Mahendra Nath, whose paternal grandfather's sister was the mother of Damodar Das. He professed to identify with certainty the signature's of Damodar Das to Exhibits A and B, as well as to the even more important document, Exhibit C. Now, if there were nothing else in the case, I should not feel tie faintest hesitation in holding that the evidence of this witness is utterly worthless. His relationship to Damodar Das is a distant one; his cross-examination showed; that the intercourse, between the two was slight. Damodar Das admittedly wrote both tie Urdu (Persian) and the Nagri (Hindi) character it is a controverted point whether he ever used the Mahajani or Sarrafi character at all. I shall have to refer to this point again; but, for tie present it is quite enough to say that I am abundantly satisfied that this young man was not in a position honestly to identify the words "Gawahi Damodar Das ki" written in the Mahajani chraracter, as being in the hand-writing of Damodar Das, tie brother-in-law of Anandi Lal. Moreover, these words, as they appear at the bottom of the right-hand 'margin of Exhibits A and B, are such an intolerable scrawl that I should find it difficult to believe any witness who swore to positive and un-hesitating recognition the hand-writing. I do not understand the learned Subordinate Judge himself to have placed any reliance on the testimony of this, witness. 21. So far, I have reached the conclusion that the evidence to prove Exhibit A is distinctly thin, it is stretching a point to hold an important document like this proved by the all but uncorroborated testimony of an interested party like the defendant Ghasi Ram. The question of the credit to be attached to this man's evidence I propose finally to re-consider after have reviewed the whole evidence beating on the execution of the still more important Exhibit C. For the present I am concerned to note that the defendants certainly did not improve their position by the attempt they made to put in the witness box the scribe of the document, The Will of Anandi Lal purports to have been written "by the pen of Mirza Inayat Ali Beg, sect Moghal, ascribe by profession, resident of Mohalla, Moti Katra, Agra" Exhibits A and B are marked as "by the pen of Mirza Wazir Beg, scribe, Agra." The Interval in date between the two documents is rather less than one month, it seems fair matter of inference that, if Exhibits A and B were genuine documents, actually executed on June 27th, 1901, the same "Wazir Beg" would be employed to write them who had already written the Will, while Ghasi Ram was under cross-examination an April 7th, 1920, he deposed as follows: "I have not caused Wazir Beg to be summoned. The scribe of these documents (A and B) was the same Wazir Beg who wrote Anandi Lal's Will. I do not know if Wazir Beg was implicated is a forgery case and absconded." On April 9th, 1920, there appeared in the witness box, as a witness called by the defendants, Nanak Ram and Ghasi Ram, a man who gave his name as Wazir Beg, son of Amit Beg, Moghal, resident of Hing-ul-Mandavi, Agra, City. He had apparently been sum-money to bring with him any registers or account-books kept by him in the regular course of business which would show the dates on which he had written particular documents. He deposed that he kept no such books and that his entire income from document writing was not more than thirty rupees a year. On looking at the Will of Anandi Lal and at the agreements Exhibits A and B, he deposed that these were not in his hand-writing, He added that, while he knew Ghasi Ram by face, he had no recollection of Narain Das, Anandi Lal or their father. On this Ghasi Ram put in a petition supported by affidavit, asserting positively that the witness in the box was the very man who had written all three documents and asking leave to cross-examine him, Leave having been granted, the defendants, put the witness through a feeble and inefficient cross-examination. The most favourable answer they got out of him was that "Hing-ki-Mandavi," where he resides might be regarded as a sub-division of "Mohalla Moti katra." He insisted that his own father was Amir Beg, denied that he was ever known by any other name and gave details of documnets in which he had signed himself as "Wazir Beg, son of Amir Beg." He gave the names of his father's brothers, and added: "Inayat Beg was no relation of mine." The defendants refrained from asking him plainly whether he knew of any Inayat Beg, or Inayat Ali Beg, who had a son called Wazir All Beg; the plaintiff put the question and evidently added some details as, to the personal appearance of this other, man, but the witness merely replied that he knew of no scribe of that name, parentage and> description. He admitted that he was himself carrying on the business-of a scribe in the year 1901. When questioned by the defendants about the summons in obedience to which he had come to Court, he replied that he had received a summons that very day addressed to a Wazir Beg of parentage in-specified. 22. On this, last point the record reveals a state of fact which I can only describe as surprising. On September 16th, 1919, the defendant Nanak Ram put in a list of the witnesses he desired to have sum moned for a hearing fixed for September 18th, 1919. On this list appears the name of "Mirza Wazir Beg, son of Mirza Inayat Ali Beg, Moghal, resident of Moti Katra, Agra, with his register containing tie drafts of the sale-deeds for, 1901, "the summons then issued is on the record, endorsed as having been received by some. Wazir Beg of unspecified parentage. The case was not heard on September 18th, 1919: we do not know if any Wazir Beg attended the Court, and when Wazir Beg, son of Amir Beg, was in the witness-box this summons was never put to him. Or April 8th, 1920, the defendants (the record at page 99 does not show which) caused process to issue against four witnesses for the day following. One of these is "Mirza Wazir Beg, father's name not known, a Moghal by race, resident of Hing-ki-Mandavi, Agra." This is the summons on the strength of which the witness attended the Court on April 9th, 1920. 23. The learned Subordinate Judge has discussed this issue at length. He thinks the hand-writing of the body of the documents Exhibits A and B, does not, at first sight, resemble that of Anandi Lal's Will, but suggests, that the scribe was writing out the Will in his best "copper-plate" hand, while he wrote the agreements Exhibits A and B more freely and rapidly. In the margin of the Will the names of the witnesses are written "in an offhand manner," and there the learned Subordinate Judge thinks the hand-writing corresponds with that of Exhibits A and B. He is, therefore, of opinion, that the three documents were written out by one and the same person. He believes the witness Wazir Beg when the latter asserts that he did not write any of them; As he also believes Ghasi Ram to be a witness of truth he is driven to the conclusion that Ghasi Ram must be making a bona fide mistake when he asserts that the witness Wazir Beg in fact wrote all three of them. 24. I can only say that this suggestion seems to me too improbable to be seriously entertained, either the witness Wazir Beg is a shameless liar, who has been won over by the plaintiff, or Ghasi Ram is trying to mislead the Court by swearing to something which he knows to be untrue. In argument before us it was the former theory which we were urged on behalf of the respondents to adopt. 25. It cannot be denied that we have to deal with a peculiar and somewhat complicated problem of evidence. It would be quite sufficient for my purpose to hold that I am not prepared to believe Ghasi Ram where he is flatly contradicted by other evidence, and that I cannot accept the charitable theory of the learned Subordinate Judge as to a mistake on his part. It is, however, fairer to the parties that I should set down what seem to me, on the whole, the most reasonable inferences of fact to draw from the evidence. I am far from satisfied that either the defendant, Ghasi Ram, or the witness, Wazir Beg, has been perfectly can did with the Court. The respondents, at any rate, cannot complain of my not entirely trusting the latter. I approach the question by laying firm hold on the initial facts as to which there seems no room for doubt. The Will of Anandi Lal is a genuine document; there, was no reason why its scribe should mis-describe himself. There was, therefore, in May 1901, a scribe named Wazir Ali Beg son of Inayat Ali Beg, living in the City of Agra. I agree with the learned Subordinate Judge that the witness, Wazir Beg son of Amir Beg, cannot be that man. The inference I draw is that on some date, as to which I formulate no theory except that it was subsequent to the death of Anandi Lal, certain parties found it expedient to bring into existence the documents Exhibits A and B. They realised the importance of at least leaving open the possibilty of representing these as being from the same pen as the Will of Anandi Lal. They found out the existence of Wazir Beg son of Amir Beg, and induced him to draft the documents, antedating them to the 27th June 1901. When this case came into Court they applied for a summons in the name of Wazir Ali Beg son of Inayat Ali Beg, and got it served upon Wazir Beg, son of Amir Beg. At this point there was a hitch. My conjecture is that the witness cried of 'when he found that he was not merely expected to admit having written Exhibits A and B and give some pre-arranged account of the circumstances under which he had done so, but that it was proposed to put him forward as Wazir Ali Beg, son of Inayat Ali Beg, and the scribe of a document which on the face of it, did not look at all like any hand-writing which he could produce. He may have known that the legal advisers of the plaintiff were prepared to confront him with documents which he had signed as Wazir Beg, son of Amir Beg, and to challenge him to produce, in the presence of the Court, the highly trained hand-writing of the Will. The defendants made an at tempt, to get out of the difficulty. They took out a second summons for a Wazir Beg of unknown parentage, living in a quarter of Agra so restricted that the summons could scarcely fail to find the only available Wazir Beg, the son of Amir Beg. With their man in the witness-box they may have hoped to force him to go the whole way with them; at worst, they could appeal to the Court to treat him as a rascal who had been bought over. The witness decided not to put his own neck in the noose to please anybody, and so adopted what was, from his point of view, the safe course of denying having written any one of the Exhibits.' 26. Before passing on to the question of the execution of Exhibit C, I think it worthwhile to add that I have taken no notice of the stamp-vendor's endorsements which appear on the back of the Exhibits A and B. Those endorsements do not prove themselves. There is no evidence on the record that there was in Agra, in May 1901, a stamp-vendor named Ganeshi Lal, much less that the man, if he ever existed, is now dead, or that the endorsements can be recognised as in his handwriting. If these facts were proved I do not think they would have affected my conclusion, but I decline to discuss allegations of fact unsupported by any evidence whatever. 27. I now pass on to Exhibit C, the bilateral agreement of October 21st, 1905. The document is written by a professional scribe of the name of Kashi Nath, who died in the autumn of 1912. His hand-writing is proved by his brother Kedar Nath at page R9. One of the details which leave an unpleasent taste in my mouth when I review the transaction as a whole is that this Kashi Nath was not merely put forward to identify Musammat Chameli when Exhibit C was registered at the house of Narain Das on October 23rd, 1905, but was a described to the Sub-Registrar as "uncle of the Musammat." we have it from "Kedar Nath that his father's sister was the paternal grandmother of Damodar Das, and thus of Musammat Chameli. Kashi Nath was, therefore, a cousin of that lady's father. It looks to me as if his relationship was over-stated in the registration endorsement, just as the defendant. Ram Dayal, was carefully specified to be the brother of Musammat Chameli's deceased husband, in order to create a general impression that the lady was surrounded by relatives to whom she could turn for disinterested advice. One of the numerous details on which I quite definitely disbelieve the evidence of the defendant Ghasi Ram, where he asserts that Damoaar Das was present when the Sub-Registrar came to the house of Narain Das. Had Damodar Das been present we may be certain that he would have been put forward to identify Musammat Chameli, and not this "cousin-uncle" of a professional scribe, or the adversely interested brother-in-law, Ram Dayal. 28. The evidence of Musammat Chameli was taken on Commission. She does not deny her thumb-impression on Exhibit C or on the registration endorsement; but she is positive she never gave her assent to any such document with knowledge of its contents. Her story is that when she went to see Narain Das on his death-bed she was asked to put her thumb-impression to a paper, about which she was told that its effect was to appoint Panches (she uses this word to describe the executors or trustees under Anandi Lal's Will) who would look after the interest of her son when Narain Das was dead. Incidentally, she denied that Kashi Nath, the scribe, or his brother Kedar Nath, were relations of hers at all. She was subjected to the sort of intolerably lengthy, bullying and yet futile, cross-examination that we come across in cases when some third rate legal practitioner, at once unscruplous and incompetent, takes the bit between his teeth in the presence of a Commissioner who is unable to exercise the slighest control over the proceedings. I must frankly confess that I have not had the patience to read the record of this cross-examination completely through if I happen in consequence to have missed any point of real importance, the blame must rest on the legal gentleman who inflicted this outrage on the witness and on the Court. So far as I can judge, the witness was not shaken in cross-examination: the defendants certainly never got to close quarters with her on the one point that really mattered, namely, her admission of execution in the presence of the Sub-Registrar. That officer has certified that the contents of the document "were explained to the Mussammat": he does not say that he himself explained them. He was not called as a witness, and there is nothing on the record to show whether he is alive or dead. Of course, from one point of view it matters little how much Musammat Chameli understood or did not understand of the document which she joined in executing. It is all very well for the defendants to speak of her as the "natural guardian" of her minor son; the latter was under the guardianship of the trustees appointed by his father's Will and Musammat Chameli had been excluded by the terms of the Will from any effective control over, or responsibility for, the affairs of the minor, indeed, the manner in which this illiterate pardanashinlady was involved in the transactions of October the 21st and October the 23rd 1905, and the manner in which she has been put forward by the defendants, Nanak Ram and Ghasi Ram, both in the replies returned to the notices issued by the plaintiff and in their pleadings in the suit itself, serve only to accentuate my suspicion that there is something wrong about the execution of the agreement, Exhibit C on the part of the remaining trustees. If the defendant, Ghasi Ram, who is fully acquainted with all the facts, were really confident that a valid agreement for dissolution of partnership and final settlement of accounts had been entered into between Narain Das and the remaining trustees, I do not believe he would have put forward Musammat Chameli, in the way he has attempted to do as the natural guardian of the plaintiff during the latter's minority. From another point of view, however, the evidence of Musammat Chameli is of real importance. If she is telling anything like the truth, then Ghasi Ram, has told a series of falsehoods about the transactions of October the 21st and 23rd 1905 and is not entitled to be believed when he deposes that the document Exhibit, C, was executed in his presence by the trustees, Dwarka Das, Damodar Das and Makhan Lal. 29. The only surviving trustee other than Ghasi Ram himself is Makhan Lal, whose position in this litigation has already been indicated. This man went into the witness-box on the 13th of April 1920, after the examination of Ghasi Ram, and gave evidence in support of the plaintiff's case. We were asked in argument to Regard his statement as shifty and disingenuous. The impression left on my mind by a perusal of the record of that evidence is that we have to deal with a somewhat puzzle-headed man, distinctly uneasy in his own mind with respect to his own neglect of his duties as one of the trustees under the Will of Anandi Lal, but that he was trying to tell the truth to the best of his recollection and belief. The one thing he was quite positive about was that he had never executed any such document as the agreement Exhibit C; he contradicted Ghasi Ram by asserting that no partnership accounts had ever been gone into with him, or with Musammat Chameli in his presence; nor had Musammat Chameli ever affixed her mark or thumb-impression to any document in his presence. When shown the signature on Exhibit C which purports to be his, he admitted that the hand-writing was very like his own and that it was only in the formation of the letter dal (the abbreviation for the word dastkhat, which precedes the signature) that he could detect any definite divergence in the form of the letter from his usual hand-writing. He added that he had no recollection whatever of having made this signature. I do not think this statement was intended in any way to qualify the witnesses' assertion that he had never executed any such document as Exhibit C. He went on to add that no such document had ever been presented in his presence for registration, either by Narain Das or by Musammat Chameli. In cross-examination he was put to what I have always considered a somewhat un-fair test. The disputed signature along with a number of others (genuine signatures of the witness) was shown to him in such a manner that no portion of the paper was visible to him apart from the signatures themselves. I have always maintained that, if I myself were subjected to such a test in the witness-box, I would begin by protesting that I did not profess to be able to distinguish a genuine signature of my own from a tracing for a really clever forgery, if I were shown nothing but the signature of signatures and debarred from refreshing my memory by inspection of the documents to which they purported to be appended. However, the witness Makhan Lal emerged from this test more creditably than I should have expected to do myself. Out of all the signatures shown to him he picked out the disputed signature, that is to say, the one which is alleged to evidence his execution of the document, Exhibit C and deposed, "This signature looks to be uncertain." He was not pressed further on the point; I under-stand him to mean that out of all the signatures in question this was the one which struck him as at any rate unlike his ordinary style of writing. Another remarkable point about the evidence of this witness is that his name appears in the stamp-vendor's endorsement on the paper Exhibit C as that of the man to whom the stamp-paper was sold "for purposes of dissolution of partnership." He denied emphatically having purchased the stamp paper in question. I am bound to say that I believe his denial. It seems to me that if everything were straight-forward and above-board about the transaction embodied in Exhibit C, the stamp-paper would have been purchased by Ghasi Ram, or by some other person indirectly concerned it the management of the partnership firm; if, on the other hand, Narain Das and Ghasi Ram were engaged on a transaction which would not bear examination, the purchase of the stamp-paper in the name of one of the other trustees would be an exceedingly likely step for them to take by way of a preliminary precaution. I do not know that the defendants got anything particular out of this witness in cross-examination over and above the points already noticed. The witness was undoubtedly reluctant to admit that he had ever definitely accepted the position of a trustee under Anandi Lal's Will. He seems to me to have told the truth on this point in the first part of his cross-examinatio, but to have tried, not over ingeriously, to modify the effect of the admissions previously made by him when he was further cross-examined on the day following. He was ready to give everybody a good character, including the scribe Kashi Nath and another witness for the defendants, presently to be noticed, who may converiently be referred to as Narain Das the second. 30. For the present I record my conclusion, to the effect that the credibility of the evidence given by the defendant, Ghasi Ram, is, to my mind, seriously shaken by the depositions of Makhan Lal and Musamma Chzmeli; where these two contradict Ghasi Rami am certainly disposed to believe them. 31. I how pass on to consider the evidence by which it has been sought to prove this document, or rather to prove the disputed signatures on the said document of Makhan Lal, Damodar Das and Dwarka Das Of course, the document was executed by Narain Das, who presented it for registration, and I have no doubt it was executed by Ghasi Ram, who stood to gain by the arrangement made under the Will of Narain Das, an arrangement only possible if the existing partnership had been dissolved in the lifetime of Narain Das by the execution of the agreement, Exhibit C. There are four marginal witnesses to this document; two of them are the defendants, Ram Dayal and Sham Lal. They were not called as witnesses and when Sham Lal was examined by the Court at a late stage of the proceedings the document, Exhibit C, was not put to him and he was not asked if he admitted ordered his signature to the same. I do not think the defedants can be permitted to evade responsibility for the non-production of Ram Dayal and Sham Lal as witnesses to prove the complete execution of Exhibit C, merely because of their contention that these two defendants were colluding with the plaintiff. I am by no means satisfied that any such collusion is made out by the evidence, and in any case it seems to me a serious matter for defendants who are put to proof of an important document, vital to their case, deliberately to refrain from putting it to the witness-box two attesting witnesses who are alive and available for examination. The remaining two marginal witnesses are Bansi Dhar and Ratan Lal. A summons is to be found on the record issued to the former at the instance of the defendants, in accordance with the description and address appearing above his signature on Exhibit C: this summons has been returned with an endorsement that the witness could not be found. There is no further information available on the record concerning Bansi Dhar. We do not know whether he is alive or dead. The name of Ratan Lal, with a description of his parentage and residence apparently identical with that appearing above his signature on the disputed document, is to be found in the list of witnesses whom the defendants applied on the 16th of September 1919 to hate summoned-for the hearing fixed for the 18th of September 1919. Nothing more is known about the witness, so far as can be ascertained from this record. I am bound to say that I do not remember having come across any other-case of equal importance with the present, in which a litigant who had been put to proof of a document vital to his case succeeded in obtaining from the Trial Court a finding in his favour, when he had neither produced a single one of four attesting witnesses, nor offered a word of explanation respecting his failure to do so. The defandants called a witness, Mansukh Das, who deposed that the trustee, Dwarka Das, was his father and that he could identify the signature of Dwarka Das as that of one of the executants to Exhibit C. In cross-examination he admitted that his father was formerly in the service of the partnership business and that he himself was still in the service of the defendants, Nanag Ram and Ghasi Ram, on a small monthly salary. He made the curious admission that he did not know whether his father and mother had ever been married; This makes me inclined to believe a witness named Har Bilas, who was called by the plaintiffs to prove that he was himself related to Dwarka Das and that Dwarka Das was never married at all. I am not satisfied, under the circumstances, that the Court should accept the evidence of Mansukh Das as sufficient to prove execution by Dwarka Das of Exhibit C. I do not know that the point is one of great importance. Dwarka Das was one of the servants of the firm, whose position was improved, by the provisions of the Will of Narain Das, though not to the same extent as that of Ghasi Ram. He might conceivably have join' with Ghasi Ram' in any fraud that was perpetrated in connection with Exhibit C. However, on the available evidence and in view of the failure of the defendant to call any of the marginal wit(sic.) . decline to accept the evidence of Mansukh Das as proving execution by Dwarka Das of Exhibit C. 32. The controversy regarding the signatur of Damodar Das is connected, as I have previously remarked, with the question of this man's signature which purpose to appear on the margin of Exhibits A, B. All three signatures purport to in the Mahajani or Sarrafi character so happens that the paper of Exhibit as it now appears on the record, has bee torn, or more probably perforated in the course of binding, just in the middle o this contested signature. I cannot tell what was the condition of the paper where the signature was inspected by the witnesses in the Court below. It is some what better written than the two preposterous scrawls which are supposed, t represent the signatures of Damodar Das in the margins of Exhibits A and B. As suming that it had not been mutilated at the time of the trial in the Court below, I should regard it as a signature susceptible of identification by any one who was really acquainted with the hand-writing of Damodar Das when the latter was using that Sarrafi, character. The defendants have sought to prove it by the evidence of Mahinder Nath on which I have already commented. They also put in the witness-box an aged man, whom I have referred to as Narain Das the second. He deposed that he remembered being sent for by Narain Das when the latter was on his death-bed. He remembered that when he came to the house three documents had already been drafted for signature. Damodar Das was present and Musammat Chameli was sitting there beside Narain Das. He heard some conversation about the necessity of settling the affairs of Anandi Lal's son and he professed to remember certain details regarding the arrangements arrived at about Fakir Chand's half share in the shop in Mr. Campbell's kothi and about the Rs. 4,000 'which were to be set apart for the expenses of the dharamsala. No account-books were gone into in his presence, but Mahindar Das told him that the accounts credit been examined. He was present again two days later when the Sub-Registrar came to the house of Narain Das to see about the registration of the three documents. He identified Narain Das as executant of his Will and also as executant of the agreement about the transfer of the half share in the house for a consideration of Rs. 6,500, but he did not identify Narayan Das as the executant of the distracted document, Exhibit C, This document was never put to him in examination and in cross-examination, and I do not understand him to depose that Exhibit C was either executed, or attested, or presented for registration in his presence. 33. This is the case for the defendants regarding the execution of this document plus the evidence of Ghasi Ram, who asserts that all the signatures, including those of Damodar Das, Makhan Lal and Dwarka Das, were affixed in his presence. The plaintiff seems to have fatally prejudiced his case in the Court below by asserting, and attempting to prove, that Damodar Das never used the Sarrafi character and was in fact totally unacquainted with that character. It was over this matter that a prolonged and complicate controversy took place in the Court below The plaintiff called Kishun Lal, an own brother of Damodar Das, and he gave evidence to this effect. On the other side the defendants produced a registration copy of a document purporting to have been executed by Damodar Das in the year 1915, on which there appears a note to the effect that the signature of Damodar Das is in Sarrafi. There was considerable controversy as to whether the defendants had sufficiently accounted for the non-production of the original and also as to the evidential value of this note by-some copyist regarding the character of a signature which he presumably could not read. Over and above this, the defendants called Kanhaiya Lal, the peon of a certain Girls' School in the City of Agra. He produced two books which it had been his duty to circulate when taking round notices of meetings of the Committee of Management, or-collecting Sub-sections. We have spent a great deal of time, which might I think have been better employed, over examining the entries in these two dilapidated volumes. Damodar Das undoubtedly knew both the Urdu and the Nagri character. His signature as a witness to the Will of Anandi Lal is in the former, while he admittedly signed his name in the Nagri character on a number of occasions. The whole question is complicated by the fact that there were at least two men of the name of Damodar Das connected with the affairs of this Girls' School. The gentleman with whom we ate concerned was no doubt distinguished in the notices circulated by the hand of the witness Kanhaiya Lal, by being described either as Damodar Das the physician (Hakim) or Damodar Das the druggist (Attar). Opposite his name where it appears in these books there are signatures purporting to be his, frequently written in the Nagri character and about as frequently in Sarrafi. There are also several pages in the books where the name of Damodar Das, Hakim or Attar, appears with a blank space on the line opposite to it; presumably on those occasions the peon had failed to find Damodar Das. The learned Subordinate Judge has come to the conclusion that on these, materials it is established beyond doubt that Damodar Das was acquainted with the Sarrafi character and occasionally signed his name in that character. He says that, as the plaintiff has committed himself to the attempt to prove the contrary, the Court must accept the evidence of; Ghasi Ram as sufficient to prove that the disputed signature on Exhibit C is in fact that of Damodar Das. I am wholly unable to accept this view of the case. After a minute examination of the two peon books, I am not prepared to hold that the entries therein prove affirmatively, beyond reasonable doubt, that Damodar Das, the physician or druggist, was in the habit of signing his name in the Sarrafi character. I do not profess to be an expert in the reading of that character; but there are beyond question extraordinary dissimilarities between the various writings in Sarrafi which purport to represent the signature of Damodar Das, whereas the Nagri signatures seem to me to be fairly uniform in character. In view of the condition of the books and the undoubted presence of blank spaces opposite the name of Hakim Damodar Das on some of the pages, I can of exclude the possibility that these books may have been got at, since the institution of the suit, and the name of Damodar Das jotted down in the Sarrafi character in various places where a convenient space presented itself. I quite agree that the plaintiff attempted to prove too much, and I do not consider that he has succeeded in proving the universal negative to which he committed himself, that is to say entire ignorance of the Sarrafi character on the part of Damodar Das and inability to make use of the same if he wanted to set down his own name in a hurry. The fact remains that it was on the defendants to prove that the contested signature on Exhibit C is that of Damodar Das, the late brother of Musammat Chameli. It seems to me that I have already given abundant reasons for declining to hold that signature to be proved on the evidence of the defendant, Ghasi Ram, and of the one witness, Mahindra Nath. I ought perhaps to have mentioned that this man was a marginal witness to the document of 1915 which Damador Das is said to have executed by signing his name in the Sarrafi character. He says that he remembers that Damodar Das did employ that character when signing his name on that occasion, and my only comment on the point is that I do not believe that he in good faith retains any recollection on the point. 34. There are two other matters yet to be considered. I think I have already made it clear that Exhibit C was registered only in respect of its execution by Narain Das and Musammat Chameli. The remaining four executants, including Ghasi Ram himself, never presented themselves before he Sub-Registrar during the prescribed period of four months, and on the 22nd of February 1906 that officer recorded formal order that registration was refused in respect of Makhan Lal, Damodar Das, Shasi Ram and Dwarka Das. No attempt was ever made by any person interested in the propounding of this document to make use of the procedure provided by the Indian Registration Act and the rules made there under to compel registration in respect of these recalcitrant or negligent executants. Ghasi Ram asks us to believe that the whole four of them were actually present when the Sub-Registrar came to the house of Narain Das on October the 23rd 1905, that they offered to admit execution and attest their signatures then and there, but that the Sub-Registrar, said that under the rules he had no authority to register the fact of their execution unless they presented themselves at his office Ghasi Ram adds that some days later, he and Dwarka Das deed go to the Sub-Registrar's office in order effect registration, but that officer replied that he was unable to proceed with the matter unless the four remaining executants came there together. I frankly disbelieve this assertion. I can understand that the Sub-Registrar, standing upon a somewhat technical and pedantic view of his duties under the Registration Manual, might have refused to accept the attestation of the document at the house of Narain Das by any executants other than Narain Das himself and Musammat Chameli, in respect of whom formal applications had been made for their attestations to be taken at the residence of Narain Das. I do not believe that he either would or could have refused to accept the attestations of Ghasi Ram and Dwarka Das, if the two had presented themselves at his office on some later date. His certificate of non-registration when read in connection with the rules under which it was made, distinctly implies that no one of the four executants, Makhan Lal, Damodar Das, Ghasi Ram and Dwarka Das, had put in an appearance in the course of the four months which had elapsed since the execution of the document on the 21st of October 1905. Moreover, I have already recorded my conclusion, arrived at on other grounds, that Damodar Das was not present when the Sub-Registrar took the attestation of Musammat Chameli to the document at the house of Narayan Das. 35. While I am on this question of registration, there is a point of law on which it is perhaps expedient that I should express an opinion, namely, the effect of the non-registration of this document on behalf of four of the executants, Makhan Lal, Damodar Das, Ghasi Ram and Dwarka Das. It is not a question whether the partnership business purporting to be thereby dissolved did, or did not, in the month of October 1905, possess immoveable property of the value of Rs. 100, and upwards. The document itself avoids making any statement o the subject, taking refuge in an "etcetra", just where one would have expected a reference to such immoveable property. When, however, the executants come to specify what is being done about the sum of Rs. 52,939 which it presents the share of Faqir Chand in the partnership assets, it does distinctly state that Rs. 6,500 of the above are written off in consideration of the transfer by Narain Das of his moiety share "in godown No. 1564 in the kothi of Mr. Campbell, Belanganj, Agra." In my opinion this provision does make the document in question an instrument which acknowledges the receipt of payment of consideration on account of the assignment or extinction of a right, title or interest in immoveable property of the value of more than Rs. 100, within the meaning of these words as they appear in Section 17(1) of the Indian Registration Act, XVI of 1908. Apart, therefore, from other considerations, the non-registration of this document makes it inoperative in so far as it purports to affect those of the executants in respect of whom it was never registered. 36. Returning from this digression to the question of the execution of the document, there is one last argument from, probability which I ought perhaps to notice before recording my conclusion. It has been strongly pressed upon us on behalf of the respondents that the arrangements made in this document were in fact acted upon from the date of its execution, and must have been so acted upon to the knowledge of the trustees under the Will of Anandi Lal, and more particularly of Makhan Lal and Damodor das. The suggestion is, that these two men at any rate, if they had not actually joined in the execution of Exhibit C at the time, must have seen from the way in which the business was being carried on that a dissolution of the partnership had actually taken place, must have been put upon enquiry arid must, therefore, have come to know of the existence of Exhibit C and have denounced it as a forgery long before the institution of the present suit. This argument Wounds plausible and is not without real force, though I very much doubt whether a mere argument from probability could, under the circumstances of this case, be used to supplement the failure of the defendants to prove the execution of the document by the best available evidence. I have come to the conclusion, however, that the whole force of the argument is gravely discounted when we come to consider the evidence given by the defendants. Ghasi Ram and Sham Lal, as to what was actually done after the death of Narain Das. Under the terms of that gentleman's Will the where management of what had previously been the partnership business passed into the hands of Ram Dayal, Sham Lal and Ghasi Ram, the two first named being the responsible managers. There had previously been one of the shops belonging to the partnership firm carried on in the building in Mr. Campbell's ko hi, and this was treated as the head-office of the firm. After the death of Narain Das this head-office was removed to another location in the City of Agra. I am by no means clear on the evidence whether there as any real interval between this removal of the head-office and what the defendants call the re-starting of the new shop in the very same building, for the sole and separate. benefit of the minor Faqir Chand. In any case, the interval was one of a few months only. A trustee of the minor, who was not scrupulously interesting himself in the discharge of his duties, would only see, at most, that there tad been a change in the disposition or arrangement of the shops belonging to the partnership; but that (it may be after some brief interval) a shop of the same description as had existed previously was being carried on in the same locality, by the same persons who were the de facto managers of the entire partnership business. I do not consider that anything happened which was likely, on the face of it, to arouse the suspicions of Makhan Lal or Damodar Das and to put them upon enquiry. A careful examination of the partnership accounts and of the accounts maintained by Sham Lal and Ram Dayal in respect of the shop in Mr. Campbell's kothi might no doubt have suggested the necessity for' enquiry in the interests of the minor; but I find nothing incredible in the evidence given by Makhan Lal as to his failure to make such an enquiry or seriously improbable in the suggestion that Damodar Das was equally negligent. So long as Musammat Chameli and her minor son were being kept in reasonable comfort, and so long as such matters as the marraige of the minor were properly arranged for in due course and the necessary funds supplied by Sham Lal and Ram Dayal, Musammat Chameli was not likely to make any complaint, or to appeal to the executors of her husband's Will to look into the condition of the partnership accounts. I am of opinion, therefore, that no valid inference in favour of the defendants can be drawn from the fact that neither Makhan Lal nor Damodar das ever denounced this document, Exhibit C, as a forgery at any time prior to the institution of the present suit. 37. My finding, therefore, on the issue now under consideration is that it is not proved that Anandi Lal executed the agreement, Exhibit A, of the 27th of June 1901; and it is not proved that Makhan Lal, Damodar Das and Dwarka Das executed the agreement, Exhibit C, of October the 21st 1905. IV.--Two Subsidiary questions of Law. 38. I now pass on to consider two questions of law which are not concluded by the findings of fact hitherto recorded. 39. The first or these is, whether the previously subsisting partnership was dissolved by the death of Narain Das on the 23rd of October 1903. The law on the subject is contained in Section 253(10) of the Indian Contract Act, IX of 1872. The law itself is simple enough: whether the partnership be regarded as one entered into for the term of the minority of Faqir Chand, or whether it be not so regarded, the death of Narain Das dissolved the partnership "in the absence of any contract to the contrary." In a country where the terms of a partnership are usually embodied in a regular instrument such a provision is not difficult of application. In this country partnerships amongst members of one and the same family are very commonly entered into without any formal partnership deed, and in the case now before us no such deed was ever drawn up as between Anandi Lal and Narain Das. The question we have to consider is whether a stipulation that this partnership would not be dissolved by the death of either or both of the partners, but would continue on the lines of a joint family business, at least until Faqir Chand exercised an option one way or the other on attaining his majority, can be fairly inferred from the established facts and the circumstances of the case generally. The Courts in this country have frequently held that, in the case of a partnership between members of a joint undivided Hindu family, a stipulation that the partnership will not be dissolved by the death of any one partner is ordinarily to be inferred. The only case to which we were referred in argument, of which the facts present any real analogy to those now before us, is that of Muhammad, Kamil v. Haji Hedayaiulla 64 Ind. Cas. 861 : 48 C. 906 : 33 C.L.J. 411 : 26 C.W.N. 463 : (1922) A.I.R.(C) 122. On the principles there laid down the partnership between Anandi Lal and Narayan Das would ordinarily have been dissolved by the death of Anandi Lal that, it seems to me, we are on absolutely firm ground in holding that that partnership was not then dissolved by reason of a contract to the contrary, perfectly understood by both the parties and assented to by Narain Das when he signed the Will of Anandi Lal as an attesting witness. In the course of argument before us, as the importance of this point became obvious, the learned Counsel who was arguing the case for the respondents contended, or at least suggested, that we ought to hold that the original partnership of Anandi Lal and Narain Das was dissolved by the death of the former and that we are dealing with a new partnership entered into by Narain Das on the one hand and his minor nephew Faqir Chand(as represented by the trustees or executors named in the Will of Anandi Lal) on the other. There is not a trace of any such contention to be found in the pleadings of the defendants, or in any part of the record as it stood up to the conclusion of the trial in the Court below. Even if the defendants had raised the point, I think it must have been decided against them. I have already recorded my opinion that when Narain Das signed the Will of Anandi Lal as an attesting witness, he did so with a full knowledge of its contents "and he intended by his signature to certify both his knowledge of the contents and his acceptance of the trusteeship I am satisfied, therefore, that Anandi Lal and Narain Das agreed amongst themselves that their partnership would not be dissolved by the death of the former (as event which was clearly anticipated as inevitable before long), but should continue as a partnership between Narain Das and the minor Faqir Chand. I am not prepared to say that it seems to me equally obvious that it was part of the agreement that neither upon the death of Narain Das should the partnership be dissolved; but there are two or three considerations which strike me as weighty, and indeed decisive, (a) The partnership between Anandi Lal and Narain Das was not precisely a partnership between members of a joint undivided Hindu family. The two brothers had separated after their father's death and they certainly did not re-unite for all purp6ses. Each of them obviously regarded his interest in the partnership business as his own separate property, over which he retained full power of testamentary disposal and which would descend, in the absence of such disposal, to his own heirs, instead of devolving upon the other by right of survivorship. The fact remains, however, that it was a partnership between two brothers, and there is nothing surprising or abnormal in the suggestion that the partners, as between themselves, regarded it as subject to the oridinary incidents of a joint family partnership, i.e., as an arrangement which would continue between their heirs after them until formably dissolved at the instance of one or other member of the partnership, (b) It seems to me that it would be altogether anomalous if hold that A and B entered into a contract of partnership which would not be dissolved upon the death of A, but would be dissolved upon the death of B.(c) I am further greatly impressed with the conduct of Narain Das on the 21st of October 1905, It seems to me a matter of clear inference from his conduct on that date that Narain Das himself did not regard the partnership as one which would be automatically dissolved by his own death. He drew up the three documents Exhibits C, E and E in imminent expectation of death, and he actually died within a few hours of their presentation to the Registration Officer. It would have been easy for him to draw "Up a Will based upon the assertion that the partnership would be automatically dissolved by his own death and making suitable provision for that contingency. The force of this argument is no doubt somewhat weakened by my finding against the genuineness of Exhibit C; but the Will of Narain Das itself proceeds upon the assumption of a partnership already dissolved by previous arrangement. It seems to me a matter for fair inference' that Narain Das himself did not regard the partnership as one which would be automatically dissolved by his death. 40. For these reasons I am of opinion that ft contract to the contrary, within the meaning of that expression in Section 253(10) of the Indian Contract Act, may fairly be inferred from the established facts of the present case and that the partnership did not come to an end under the provisions of Clause (10) of that section when Narain Das breathed his last. 41. The next question of law is as to the alleged ratification by the plaintiff of the agreement of October the 21st 1905 after he attained majority. The learned Sub-ordinate Judge framed an issue on this point, but he was not really decided it He takes note of the fact that the plaintiff had actually been maintained during his minority, all the expenses of his marriage met, and so forth, out of funds in the hands of the defendants, Ram Dayal and Sham Lal, which they purport to provide from the profits of a shop which they were carrying on as the separate business of the minor plaintiff. He does not appear, to me, however, to have recorded any definite finding as to whether this circumstance, or any action taken by the plaintiff after he attained majority, would serve to estop the latter from claiming any of the reliefs sought in the present suit. On the findings at which I have arrived the plaintiff is obviously entitled to treat the business carried on by Ram Dayal and Sham Lal at the shop in Mr. Campbell's kothi as part and parcel of partenership business, and the fact that money derived from the profits of that shop was applied for his benefit during his minority in no way affects the present suit, except in so far as the defendants may claim credit for the said expenditure upon a fair settlement of accounts. The action taken by the plaintiff since he attained majority, which has been suggested as amounting to a ratification of the agreement of October, the 21st 1905, cannot possibly have any such effect. It appears that Ram Dayal and Sham Lal had invested a portion of the funds which they held to the credit of the plaintiff by lending the money out on mortgage. They had brought a suit upon the mortgage and obtained a decree. When the plaintiff attained majority he adopted this transaction, to the extent of executing the decree and obtaining payment. He was obviosuly entitled to do this without prejudice to any claim which he might have against Ram Dayal and Sham Lal or against any other of the defendants, for money due to him upon a complete settlement of accounts. Indeed, the proceedings in execution of the decree could scarcely have been continued after Faqir Chand attained majority by any one but Faqir Chand himself, and the money would have been lost altogether if the plaintiff had not taken action. The money thus realised by him will have to be taken into account upon a final settlement between the parties, but there is nothing about the plaintiff's conduct in this matter to debar him from maintaining the present suit. 42. V.--FORM OF DECREE TO BE PASSED ON, THE PLAINTIFF'S APPEAL. 43. From the findings which have now. been recorded it is obvious that the appeal of Nanag Ram, First Appeal No. 347 of 1921, must fail and there is nothing for us to do but to dismiss the same with costs, including fees on the higher scale. Similarly, the cross-objections taken by the respondent Sham Lal in First Appeal No. 239 of 1920 also fail and must be dismissed with costs. 44. The form of decree which requires to be substituted for the very inadequate decree passed in favour of the plaintiff by the Trial Court requires careful and detailed consideration. To begin with, the plaintiff has substantially succeeded in his appeal and, whatever else may happen; he is entitled to the costs of this appeal, including fees on the higher scale. I would award him these costs jointly and severally against the defendants-respondents Nanag Ram, Ghasi Ram, Ram Dial and Sham Lal. 45. Secondly, the plaintiff is clearly entitled to a preliminary decree for dissolution of partnership and settlement of accounts as against the same four defendants. Strictly speaking, the decree for dissolution of partnership must be against Nanag Ram and Ghasi Ram alone; but I would include the defendants. Ram Dayal and Sham Lal, in the decree for rendition of accounts, on the ground that they are the de facto managers of the partnership business. 46. The account must begin with an ascertainment of the capital to the credit of Anandi Lal on the date of that gentleman's death. I do not think that the defendants, or any of them, should be held to be bound by the recital in the Will of Anandi Lal by which this capital is stated at Rs. 58,000. There is force in the contention raised by Ghasi Ram that this is no more than a rough estimate on Anandi Lal's part, and that it includes profits which Anandi Lal expected to make by the end of the year then current. The accounts will have to be examined up to the date of Anandi Lal's death and, amongst other things the defendants should be permitted to prove, if they are able to do so, that Anandi Lal in his lifetime gave directions for a sum of Rs. 5,000 to be contributed out of his share of partnership capital towards the construction of a dharamsala, The alleged agreement by which a further sum of Rs. 4,000 was to be contributed in equal shares by the two members of the partnership, to provide for the maintenance "and expenses of the dharamsala must also be gone into. From the date of Anandi Lal's death, after the amount due to him as his share of partnership capital on that date has been ascertained, the accounts of all the shops carried on as part of the partnership business must be gone into, and the annual profits divided in the proportion of five-eighths assigned to the plaintiff and three-eighths to the defendants. The Court need not concern itself with the apportionment of this share of three-eighiths as amongst the defendants, unless this point is expressly raised by the defendants, Nanag Ram and Ghasi Ram. If it should be so raised, I think our decree must leave it open to the Court below to exercise its discretion in the matter. In this settlement of account the profits of the shop carried on by Ram Dayal and Sham Lal in the building known as Mr. Campbell's kothi must be treated as part of and parcel of the partnership profits and divided between the par-ties in the ratio already stated. 47. The defendants will be entitled to debit against the plaintiff, from year to year all money expended on his behalf or for his benefit or for that of his mother provided the expenditure be such as is warranted by the terms of Anandi Lal's Will. The money actually realised by the plaintiff since he attained majority under the mortgage-decree already referred to must be brought into account as part payment of the amount due to him. I find it a little difficult to decide as to the proper directions to be given regarding certain items of immoveable property, referred to in detail in the course of the cross-examination of Ghasi Ram, which the plaintiff alleges to have been acquired out of partnership funds. I think our decree must leave it open to the plaintiff to raise this question and to the Court below to adjudicate upon it in such manner as it may determine to be just after the facts have been fully gone into. 48. Any money found due to the plaintiff must be recoverable, in the first instance, out of the assets of the partnership business in the hands of the various defendants. I am not sure that we are called upon to provide for the contingency of such assets being found insufficient to meet the plaintiff's claim. In case of such insufficiency Ghasi Ram, as a defaulting trustee, would certainly be liable to make it good. Nanag Ram, as the heir of another trustee, would also hi liable to the extent of any monies which might have passed into his hands by reason of any breach of duty on his father's part. Ram Dayal and Sham Lal would not, I think, be liable, except to the extent of partnership funds in their hands. In this connection, however, I think there is one point of considerable practical importance to be dealt with at once. On the admission of Sham Lai himself, these two defendants are in possession of a sum of from Rs. 47,000 to Rs. 48,000 which, is due to the plaintiff and which they held to his credit. They represent it as coming out of the accumulated profits of the shop which they carried on for the benefit of, the plaintiff in Mr. Campbell's kothi at Agrar on our findings the money represents simply a portion of what is due to the plaintiff on a fair division of partnership assets. It is admittedly in the hands of these two defendants and I can see no reason why they should not be made to hand it over at once. Some time must yet pass before a final decree can be worked out on the basis of the decision at which, we have arrived it would be clearly unfair to the plaintiff that he should be left in, difficulties for ready money while this large sum was o lying to his credit in the hands of the two a defendants.' I think, therefore that we ought to include in our decree a direction t requiring them to fulfill their own under taking by paying the money into Court a within a period to be limited by the decree the said money to be taken into acv count hereafter in the final decree, in partial discharge of the plaintiff's claim and in liquidation of any sum which may be found due to the plaintiff from these particular defendants. Walsh, J. 49. I have read my brother's judgment, and agree. There seems to me to be a great deal in the learned Subordinate Judge's interlocutory proceedings in the case, and in his final judgment, which is open to criticism. Once the conclusion f is reached that the re-distribution of shares in the partnership sought to be effected by the deed of June 1901 was not executed by Anandi Lal, it stands as a piece of sheer robbery of the minor by Narain Das, of which his trusted karinda must have been cognisant, and colours the whole of the subsequent proceedings. For example, a point to which my brother has not referred, the assignment to the minor as part of his share, of the half kothi, for Rs. 6,500, the amount originally paid, for the whole, and that without any pretence at a valuation, was a transaction which could not possibly stand, in any view of the case, and was plainly a fraud upon the infant. 50. Subsequently to the death of Narain, the defendant, Ghasi, was the moving spirit in the business, and he has been throughout this suit the pillar of the defence. It is sufficient to say that, in my opinion, he was a witness unworthy of credit, and is contradicted by most of the other witnesses, against many of whom nothing can be suggested. He appears to have failed to grasp the essential difference between his duty as a trustee, and his interest as a partner, or if he realised it, to have deliberately neglected the one for the benefit of the other, and then to have resorted to a method of defending his conduct, which is, unfortunately, only too common in these Courts, namely, that of setting up in Court the supposed consent, of an ignorant and helpless mother to the abandonment of the legal rights of her; still more helpless child. I am satisfied hat, even if the document had been satisfactorily established in fact by proof, the alleged dissolution was a sham, not understood by the trustees, except those who were to profit by it, and that it was not binding on the minor whose consent could only be lawfully given by them. (1) First Appeal No. 347 of 1921 is dismissed with costs, including fees on the higher scale. (2) In First Appeal No. 239 pf 1920 was set aside the decree of the Court below, and in lieu thereof we decree the plaintiff's claim as fallows (a) We grant him a preliminary decree or dissolution of partnerships and rendition of accounts as against the defendants, Nanag Ram, Ghasi Ram, Ram Dayal and Sham Lal. (b) There will be an ascertainment of the capital representing Anandi Lal's share in the partnership business on the date of that gentleman's death, subject to the directions given in the earlier part of the judgment of this Court. (c) Thereafter, an account will be taken of the net profits which accrued year by year on each of the shops constituting the partnership business including the seven shops referred to in the Will of Narain Das and the shop started by the defendants, Ram Dayal and Sham Lal, (ostensibly as a separate business for the bereft of the plaintiff alone) in the building known as Mr. Campbell's kothi in the City of Agra: in the profits thus ascertained the plaintiff's share will be ten-sixteenths and that of the defendants six-sixteenths. The Court will have discretion to apportion the shares of the defendants amongst themselves if they move it to no so. (d) The Court will enquire whether any immoveable property now belongs to the partnership firm, or has been acquired out of partnership funds, and will pass such orders regarding the same as appear just. (e) The defendants will be entitled to charge against the plaintiff all money expended on his behalf, or for his benefit or for that of his mother, provided the Expenditure be such as is warranted by the terms of Anandi Lal's Will. They will also be allowed credit for the money realised by the plaintiff on the mortgage-decree referred to in the earlier part of this judgment. (f) Any money found due to the plaintiff will be recoverable, in the first instance, out of the assets of the partnership business in the hands of the defendants, Nanak Ram, Ghasi Ram, Ram Dayal and Sham Lal. In the event of the entire amount not being realised, the balance will be recoverable from Ghasi Ram personally and from Nanag Ram to the extent of any money which the Court may find to have passed into his hands by reason of any breach on the part of Narain Das of his duties as a trustee and executor under the Will of Anandi Lal. 3. The defendants, Ram Dayal and Sham Lal, will pay into Court within two months from the date of this decree, the sum of Rs. 47,500 to the credit, of the plaintiff, who will be permitted to withdraw the same unconditionally. The defendants will be allowed credit for this payment against any sum found due to the plaintiff of the final settlement of accounts. 4. The suit as against the defendants, Musammatt Pisto, Musammat Mohan Dei and Makhan Lal, will stand dismissed, but these defendants will bear their own costs. 5. The plaintiff will get his costs of this appeal against the defendants, Nana Ram, Ghasi Ram, Ram Dayal and Sham Lal Jointly and severally including fees of the higher scale. The Court below will pass suitable orders respecting all costs in that Court when it comes to pass its final decree. 6. The cross-objections of the defendant, Sham Lal, are dismissed with costs including fees on the higher scale.

Author: Piggott

Lala Fakir Chand Alias Kullo Mal vs Nanug Ram And Ors. on 29 March, 1923

Allahabad High Court

JUDGMENT R.K. Abichandani, J. 1. The petitioners in these two petitions seek to challenge the notices dt. 29th March, 1996, at Annexure "A" to the petitions, issued by the respondent Asstt. CIT, proposing to reopen the completed assessment of the petitioners for the asst. yr. 1991-92. The facts of both these petitions are almost identical and the parties have filed their complete papers in Special Civil Appln. No. 4201/96 and argued that case as a main matter. The assessee of Special Civil Appln. No. 4203/96 has challenged identical notice issued under s. 148 of the Act on identical grounds and the learned advocates appearing for both the sides have raised common contentions in both these petitions. The facts of Special Civil Appln. No. 4201/96 are being set out and the facts of the other petition admittedly being almost identical, are not repeated. 2. The petitioner had filed his return of income for the asst. yr. 1991-92 on 21st October, 1992, declaring his total income at Rs. 27,118 along with the statement of income, orders appended thereto and other enclosures which are at Annexure "C" to the petition. The case of the petitioner is that his return of income was duly scrutinised during the course of a regular assessment and the assessment order was made under s. 143(3) of the IT Act, 1961, on 31st January, 1994, determining his total income at Rs. 27,120. According to the petitioner, he had submitted a written explanation in his letter dt. 29th December, 1993, which was handed over to the AO on 5th January, 1994, in connection with the conversion of capital asset being his share in immovable property on 15th August, 1990, into stock-in-trade and its consequential effect, in view of the query raised by the AO. The ITO passed the assessment order for the said asst. yr. 1990-91 on 31st January, 1994, a copy of which is at Annexure "B" to the petition. The petitioner was thereafter assessed protectively by way of regular assessment under s. 143(3) on 27th March, 1996, for the asst. yr. 1993-94 by the respondent, who held in that order that the introduction of the said converted property as capital contribution in the firm of M/s Krishnan Enterprises by the petitioner on 19th September, 1990, was a 'transfer' under s. 2(47)(iv) and s. 45 of the said Act and the long-term capital gain was chargeable in the hands of the petitioner on 19th September, 1990 i.e., in the relevant asst. yr. 1991-92. In the said order dt. 27th March, 1996, at annexure "E" to the petition, it was found by the AO that the possession of the bungalow was taken over by the partnership firm of M/s Krishnan Enterprises on 19th September, 1990, and thereafter, it was demolished. It was noted that the value of the bungalow was taken at Rs. 56,00,000 on the basis of the valuation report dt. 20th August, 1990, and after becoming partners in the said firm, four brothers who were the co-owners, were given credit of Rs. 14,00,000 each in their capital account with the firm. It was noticed that the long-term capital gain was, therefore, chargeable on 19th September, 1990, as stock-in-trade of the assessee and his brothers was sold to the said firm on 19th September, 1990, and under s. 45 of the Act, it should have been taxed in the asst. yr. 1991-92. Therefore, while making protective assessment in respect of the asst. yr. 1993-94 under the said order dt. 27th March, 1996, the AO observed that proceedings under s. 148 of the Act were separately required to be taken. Thereafter, the impugned notice dt. 29th March, 1996, under s. 148 was served on the petitioner, in which the petitioner was informed by the Asstt. CIT, that he had a reason to believe that the petitioner-assessee's income which was assessable/chargeable to tax for the asst. yr. 1991-92 had escaped assessment within the meaning of s. 147 of the said Act, and, therefore, the said Officer proposed to reassess the income for the said assessment year. The petitioner was, by this notice required to deliver within thirty days from the date of the service of the notice, a return in the prescribed form showing income in respect of which he was assessable for the said assessment year. 3. The case of the respondent as reflected in the affidavit-in-reply filed in this petition is that the petitioner has approached this Court at a premature stage when only a notice under s. 148 of the Act, has been issued. It is stated that the notice has been issued after recording reasons which are in the order-sheet at Annexure "A" to the affidavit-in-reply. It is stated that the computation of capital gains was shown by the assessee in respect of the said transfer in the return for asst. yr. 1993-94. The assessee and his three brothers had adopted a weightage method by which the sale consideration for the land was computed at Rs. 34,44,679 on the basis of the amount realised till that time from the shops sold, instead of straightaway showing the amount of Rs. 56,00,000 as sale consideration. It is stated that the stock-in-trade which came into existence by conversion of the capital asset on 15th August, 1990, was transferred to the firm on 19th September, 1990, by the assessee. However, the assessee did not include the capital gains arising out of such transfer, in the computation of the total income for the asst. yr. 1991-92. It is stated that if, on the correct capital gains, tax was worked out in the asst. yr. 1991-92, the tax effect in this group of cases would come to Rs. 14,94,012 whereas the assessee and his three brothers by using an erroneous method paid tax on capital gains of only Rs. 4,17,212. It is stated that from a perusal of the assessment order for the asst. yr. 1993-94, it can be noticed that the concealment of income for asst. yr. 1991-92 was detected during the course of the assessment proceedings for the asst. yr. 1993-94. It is also stated that the AO had, in the assessment order for the asst. yr. 1991-92, not mentioned anything about the taxability of capital gains arising out of the said transfer made in favour of the firm. It is stated that the assessee in his note attached to the return of that year, had stated that "since, before 31st March, 1991, the said stock-in-trade was not sold or otherwise transferred, no capital gain arises". Thus, it is contended that, the assessee had clearly misled the AO at the time of the original assessment. 4. The learned counsel appearing for the petitioner strongly contended before us that the impugned notice issued under s. 148 of the said Act, on the footing that the income had escaped assessment, is without jurisdiction since the AO could not have had any reason to believe that any income chargeable to tax, had escaped assessment. It was submitted that the impugned notice was issued on a mere change of opinion on the part of the AO and that it was not permissible in law to initiate such proceedings when there was a mere change of opinion. It was contended that all the relevant details were placed by the assessee on the record of the previous assessment proceedings and the assessment order was framed by the AO on 31st January, 1994, after proper scrutiny. It was pointed out from the order, a copy of which is at Annexure "B" to the petition, that the assessee had filed details called for from time to time and from the data made available, the total income was computed as mentioned therein, and it is contended that the AO must, in view of the fact that all the material was placed on record and considered by him, deemed to have come to a finding that the total income computed did not include any capital gains in respect of the transfer made by the petitioner-assessee of his share in favour of the said partnership firm. Reliance was placed in support of these submissions on the decisions of this Court in VXL India Ltd. vs. Asstt. CIT (1995) 215 ITR 295 (Guj) : TC 51R.1569, Birla VXL Ltd. vs. Asstt. CIT (1996) 217 ITR 1 (Guj) : TC 51R.1022, Garden Silk Mills Ltd. vs. Dy. CIT (1966) 222 ITR 68 (Guj) : TC 51R.1520, Kaira District Co-operative Milk Producers Union Ltd. vs. Asstt. CIT (1996) 220 ITR 194 (Guj) : TC 51R.1561. It was further contended that the term 'escaped assessment' should be given a restricted meaning and that it would not cover a mere change of opinion without there being any fresh material. It was submitted that 'assessment' was a whole process of ascertaining income which was subjected to tax and an income which was not subjected to tax and once the material is placed on record and thereafter the assessment order is made, it should be assumed that the relevant taxable income had undergone the whole process of assessment and, therefore, there can arise no question of any escapement of the assessment of such income. Reliance was placed by the learned counsel in support of this submission on a decision of the Bombay High Court in the case of Chimanram Motilal vs. CIT (1943) 11 ITR 44 (Bom) : TC 51R.1647, and a Circular No. 549, dt. 31st October, 1989 [See (1990) 182 ITR 1 (St.)], the relevant para 7.2. It was submitted that when all the facts were correctly disclosed on the record during the assessment proceedings of the relevant asst. yr. 1991-92, and the order was made by the AO after seeking details, it should be assumed that he had consciously not taxed the income which is now sought to be looked into by him. It was emphasised that it should be assumed that the AO had formed an opinion that there was no transfer and hence, no capital gains accrued. According to the learned counsel, the AO cannot re-examine the matter on the same material. 5. The learned counsel appearing for the Revenue argued that in view of the fact that the AO while making an order of protective assessment in respect of the asst. yr. 1993-94, found that there was a transfer in favour of the partnership firm by the assessee of his stock-in-trade on 19th September, 1990, the capital account of the assessee in the firm was credited by Rs. 14 lakhs and though the stock-in-trade was sold to that firm on that day, it remained to be taxed in the case of the assessee in that asst. yr. 1991-92. There was sufficient reason to believe that the income in the form of capital gains had escaped assessment in that year. It was submitted that escapement of income may be for any reason and merely because material was on the record of the previous assessment proceedings, it cannot be said that such income, which in fact and reality not brought to tax, was already assessed. It was further argued that the concept of 'mere change of opinion' had arisen in the context of clause (b) of s. 147 of the Act, as it stood prior to the amendment which was made w.e.f. 11th April, 1981. It was submitted that if any error of law or fact was discovered later on, that can constitute a reason to believe that the income had escaped assessment. It was also pointed out that the Expln. 2 enumerated deemed cases of escapement of income. Reliance was placed in support of the case of the Revenue on a decision of the Full Bench of Lahore High Court in the case of Madan Mohan Lal vs. CIT (1935) 3 ITR 438 (Lah) : TC 51R.1634, and a decision of the Calcutta High Court in the case of Hum Boldt Wedag India Ltd. & Anr. vs. Asstt. CIT & Ors. 1997 TLR 786, by their learned counsel. It was contended that the AO was proceeding with the matter in lawful exercise of his jurisdiction under s. 147 of the Act and, therefore, a writ of prohibition or any other writ or order in the nature of writ of prohibition, cannot lie in such cases. It was submitted that if ultimately any adverse order is passed, that can be challenged by the assessee under the provisions of the Act and the assessee had, therefore, alternative and efficacious remedies available in the special machinery set-up for the purpose under the Act. 6. There is no dispute about the fact that the impugned notice under s. 148 of the Act, has been issued within four years from the end of the relevant asst. yr. 1991-92. Under s. 147 of the said Act, within four years from the end of the relevant assessment year, the AO, where he has reason to believe that any income chargeable to tax has escaped assessment for any assessment year, may assess or reassess such income. However, after four years, the proviso would be attracted and no action can be taken under this section unless such income has escaped assessment by reason of failure on the part of the assessee to make return under s. 139 or in response to a notice under s. 142(1) or s. 148 of the said Act, to disclose fully and truly all material facts for his assessment for that assessment year. Therefore, it is only when the case falls under the proviso that the question of non-disclosure of material facts would become relevant. In such cases, if the assessee has made full disclosure on record, then even if such income has escaped assessment, no action can be initiated by the AO under this section. Where, however, the said period of four years has not expired, the conduct of the assessee regarding disclosure of material facts need not be the basis for initiating the proceedings and they can be commenced if the AO has reason to believe that the income has escaped assessment notwithstanding that there was full disclosure of material facts on record. The assessee in such cases cannot defend the initiation of action on the ground that the facts were already placed on record and that the AO must have or ought to have considered them. Expln. 1 to s. 147 of the said Act has a bearing on disclosure aspect and it applies to the proviso to the extent it allows initiation of the proceedings under s. 147 on account of non-disclosure of material facts by the assessee. Expln. 2 applies to the entire section and it enumerates deemed cases where income has escaped assessment. Clause (a) thereof covers the case where no return is filed though the income had exceeded the maximum amount which is not chargeable to income-tax. In such cases, in order to put it beyond the pale of doubt or controversy, the provision is made that they will be deemed to be cases of escaped assessment so as to warrant the proceedings even beyond the said period of four years, since, in that event, the case would fall in the enabling part of the proviso. Clause (b) deals with cases where no assessment is made and the AO notices that the income is understated or excessive loss, deduction allowance or relief is claimed in the return. These would be cases where the return is accepted without scrutiny and no formal assessment is made. Clause (c) would cover cases where, in the assessment already made, income was underassessed or assessed too low or excessive relief is given or that excessive loss or depreciation allowance or other allowance under the Act has been computed. In the aforesaid deemed cases of escapement of income, the AO can initiate the proceedings on finding or discovering such cases and no debate whether they constitute cases of escapement of income, would be permissible. 7. It will thus, be seen that in the proceedings taken under s. 147, the AO may make an assessment or reassessment or recomputation, as the case may be. The word 'assess' refers to a situation where the assessment was not made in the normal manner while the word 'reassess' refers to a situation where an assessment is already made, but it is sought to be reassessed on the basis of this provision. In cases where the AO has not made an assessment of any item of income chargeable to tax while passing the assessment order in the relevant assessment year, it cannot be said that such income was subjected to an assessment. In the assessment proceedings, the AO would ascertain on consideration of all relevant circumstances the amount of tax chargeable to a given taxpayer. The word 'assessment' would mean the ascertainment of the amount of taxable income and of the tax payable thereon. In other words, where there is no ascertaining of the amount of taxable income and the tax payable thereon, it can never be said that such income was assessed. Merely because during the assessment proceedings the relevant material was on record or could have been with due diligence discerned by the AO for the purpose of assessing a particular item of income chargeable to tax, it cannot be inferred that the AO must necessarily have deliberated over it and taken it out while ascertaining the taxable income or that he had formed any opinion in respect thereof. If looking back it appears to the AO, (albeit within four years of the end of the relevant assessment year) that a particular item even though reflected on the record was not subjected to assessment and was left out while working out the taxable income and the tax payable thereon, i.e., while making the final assessment order, that would enable him to initiate the proceedings irrespective of the question of non-disclosure of material facts by the assessee. In fact, if there is material placed on record which would show existence of income chargeable to tax and which ordinarily ought to have been included in the ascertainment of taxable income made in the assessment order but was not so included, that would itself provide a cause or justification for a belief to the AO that such income had escaped assessment and the AO in such cases would be ex facie justified in initiating the proceedings on such basis. The cases of non-assessment of an item of income chargeable to tax would warrant formation of requisite belief to initiate the proceedings within four years of the end of the relevant assessment year, even where full disclosure were made and yet an income chargeable to tax had escaped from being included in the final assessment order in which taxable income was worked out. In such cases the AO has in fact a duty to exercise his jurisdiction. The AO has not to conclusively come to any finding on the facts which prompted his reason to believe, at the stage of the issuance of notice under s. 148 pursuant to which the assessee is to be heard; and the order if adverse, can be questioned under the provisions of the Act. 8. The cases of underassessment or excessive relief which are deemed cases of escapement of income leave no scope for an argument that they are not the cases of income having escaped assessment. If the AO prima facie finds or discovers that the case falls in any of the clauses of Expln. 2, then those cases will be of deemed cases of income that has escaped assessment and without anything more beyond such find or discovery, he can initiate the proceedings under s. 147 of the Act. On a proper interpretation of s. 147 of the Act, it would appear that the power to make assessment or reassessment within four years of the end of the relevant assessment year would be attracted even in cases where there has been a complete disclosure of all relevant facts upon which a correct assessment might have been based in the first instance, and whether it is an error of fact or law that has been discovered or found out justifying the belief required to initiate the proceedings. In our view, the words "escaped assessment" where the return is filed, are apt to cover the case of a discovery of a mistake in the assessment caused by either an erroneous construction of the transaction or due to its non-consideration, or, caused by a mistake of law applicable to such transfer or transaction even where there has been a complete disclosure of all relevant facts upon which a correct assessment could have been based. 9. As noted above, the provision of s. 147 requires that the AO should have reason to believe that any income chargeable to tax has escaped assessment. The word "reason" in the phrase 'reason to believe' would mean cause or justification. If the AO has a cause or justification to think or suppose that income had escaped assessment, he can be said to have a reason to believe that such income had escaped assessment. The words "reason to believe", cannot mean that the AO should have finally ascertained the facts by legal evidence. They only mean that he forms a belief from the examination he makes and if he likes from any information that he receives. If he discovers or finds or satisfies himself that the taxable income has escaped assessment, it would amount to saying that he had reason to believe that such income had escaped assessment. The justification of his belief is not to be judged from the standards of proof required for coming to a final decision. A belief though justified for the purpose of initiation of the proceedings under s. 147, may ultimately stand altered after the hearing and while reaching the final conclusion on the basis of the intervening enquiry. At the stage where he finds a cause or justification to believe that such income has escaped assessment, the AO is not required to base his belief on any final adjudication of the matter. In the present case, from the first assessment it appeared to the AO, while making an order in respect of the asst. yr. 1993-94, that the amount of taxable income in the form of capital gains in respect of the transfer of the land which was treated as stock-in-trade on 19th September, 1990, in favour of the firm and the tax payable thereon not being ascertained, there was escapement of income. Since the AO at the first assessment in the year 1991-92 never really formed an opinion on the question whether there was a transfer on 19th September, 1990, of the land in question to the firm and that the amounts credited to the accounts of the partners who had contributed the lands to the firm, were meant to be the price of the land which was to be actually paid from the collections received by the firm from membership fees as soon as received, as was envisaged admittedly in para. 11 of the partnership deed, there was no question of any change of opinion when on the relevant facts being found the AO, while protectively assessing the petitioner-assessee for the year 1993-94, noted that this was a case for issuance of a notice under s. 148, which came to be issued thereafter. When the amount of taxable income and of the tax payable thereon were not ascertained at all by the AO in respect of the transfer made by the assessee in favour of the firm on 19th September, 1990, there obviously was no opinion formed in that regard and consequently, there would not arise any question of a mere change of opinion. In cases where the AO had overlooked something at the first assessment, there can, in our opinion, be no question of any change of opinion when the income which was chargeable to tax is actually taxed as it ought to have been under the law but was not, due to an error committed at the first assessment. 10. The function of the AO is to administer the Act with solicitude for public treasury and with fairness to the taxpayers. He is necessarily armed with great powers. Upto four years an assessment is open to his unreserved consideration on his formation of the requisite belief. If he has such reason, he has the power, and we may add that it is his duty, to reopen the door and demand the amount legally owing. His formation of belief is not a judicial decision, but an administrative decision. It does not determine anything at this initial stage, but the AO has a duty to proceed so as to obtain what the taxpayer was always bound to pay if the increase is justified at all. The decision to initiate the proceedings is not to be preceded by any judicial or quasi-judicial enquiry. His reasoning may be the result of official information or his own investigation or may come from any source that he considers reliable. His reason is not to be judged by a Court by the standard of what the ideal man would think. He is the actual man trusted by the legislature and charged with the duty of forming of a belief, for the mere purposes of determining whether he should proceed to collect what is strictly due by law, and no other authority can substitute its standard of sufficient reason in the circumstances, or his opinion or belief for his. Unless the ground or material on which his belief is based, is found to be so irrational as not to be worthy of being called a reason by any honest man, his conclusion that it constitutes a sufficient reason, cannot be overridden. What is, therefore, to be ascertained is, whether the alleged reason really existed, and if it did, whether it was so irrational as to be outside the limits of his administrative discretion with which the AO is invested so as to be really in disregard of the statutory condition. If the AO honestly comes to a conclusion that a mistake has been made, it matters nothing so far as his jurisdiction to initiate the proceedings under s. 147 is concerned, that he may have come to an erroneous conclusion whether on law or on facts. His jurisdiction to initiate proceedings under s. 147 for assessment and reassessment is, even in such case correctly and rightly exercised, though he may have taken an erroneous view of the law with regard to the mistake committed at the first assessment proceedings that he has found out. Therefore, unless it is shown that the AO never enquired into the matter at all or that he never honestly believed that a mistake has been made, the result of his investigation and initiation of the proceedings under s. 147 of the Act cannot be challenged on the ground of want of jurisdiction. The AO has to determine the facts and the law in order to give him jurisdiction to proceed and if in the determination of this he goes wrong, the proper remedy for the assessee would be to go up in appeal and to have the case referred to the High Court under the provisions of the Act. A writ of prohibition under Art. 226 cannot be issued against the AO in such cases. 11. As noted above, while narrating the facts, the AO while making the assessment of a latter year when capital gains arising out of the said transaction were disclosed, found in paras. 3, 4 and 5 of his order that the assessee and his three brothers had decided to form a partnership firm with two other partners from 19th September, 1990, to develop the land and accordingly possession of bungalow was taken by M/s Krishnan Enterprises, who had demolished the bungalow. It was noticed that the assessee had treated the bungalow as stock-in-trade and its value was arrived at Rs. 56 lakhs and each of the four brothers' capital account with the firm was credited by Rs. 14 lakhs. It was also noticed that after the said property was converted by the said assessee and other co-owners on 15th August, 1990 from capital asset to stock-in-trade and its fair market value was decided at Rs. 56,00,000 by the registered valuer, the converted property was sold on 19th September, 1990, to M/s Krishnan Enterprises. The reasons which are contained in the order-sheet, which is at Annexure "A" to the affidavit-in-reply, clearly mention these facts which was found out or discovered, that the capital account of the assessee which was credited by Rs. 14 lakhs after the said transfer on 19th September, 1990, by which the stock-in-trade was sold to the firm, remained to be taxed in the case of the assessee in the asst. yr. 1991-92. In our view, the AO, therefore, clearly had a reason to believe that the income chargeable to tax in the form of capital gains in respect of the transfer that took place on 19th September, 1990, had escaped assessment in the relevant asst. yr. 1990-91. The initiation of the proceedings under s. 147 cannot, therefore, be assailed on the ground that it was without jurisdiction. The legislature has entrusted the AO with a jurisdiction which includes the jurisdiction to determine whether the preliminary state of facts exists as well as the jurisdiction, on finding that it does exist, to proceed further to assess, reassess or recompute as indicated in s. 148. The AO has formed his belief on discovery of the earlier error which resulted in the said income having escaped assessment which constituted the fact primary to giving him jurisdiction to proceed with the matter for assessment or reassessment. If his decision on the question whether there was sufficient justification or cause for formation of the belief in view of the error committed in the first assessment was wrong, the only remedy would be by way of an appeal against his ultimate order and not by a writ of prohibition; for, the AO has not assumed jurisdiction not vested in him, but has merely exercised jurisdiction, the existence of which is necessarily involved by the scope of his functions under the IT Act, pursuant to the said provision of s. 147. In view of the facts noted above, it is utterly impossible to say that there was no evidence of primary facts upon which the AO may apply his mind and exercise his power and proceed further under the said provision. It is not for this Court in exercise of its extraordinary jurisdiction under the Constitution, to examine the sufficiency of the reason which led the AO to believe that the income had escaped assessment. In this view of the matter, the present petition is wholly misconceived and deserves to be rejected. 12. The decision of this Court in VXL India Ltd. vs. CIT (supra) cannot assist the petitioner because in that case the assessment order, as held therein, did not disclose any reason as to why the AO considered that taking into consideration the fluctuation of the exchange rate for the purpose of valuing, cost of asset was erroneous. It was held that the necessary condition for issuing notice under s. 148 r/w s. 147 of the Act were not satisfied. Similarly, in Birla VXL Ltd. vs. Asstt. CIT (supra) on which reliance was placed on behalf of the petitioner, it was held that merely saying that excessive loss or depreciation allowance had been computed without disclosing the reasons which led the assessing authority to hold such belief, did not confer jurisdiction on him to take action under s. 147. It was held that the necessary conditions for proceeding under s. 147 had not been satisfied. Even the decision of this Court in Garden Silk Mills vs. Dy. CIT (supra) cannot assist the petitioner because in that case it was held that the AO was aware about the investment and fluctuations in the exchange rate and depreciation had been allowed after considering the material on record and further that the notice was issued after four years and there was no failure on the part of the assessee to disclose material facts necessary for the assessment. Reliance placed on the case of that very assessee, reported in the same volume at page 68 also cannot help the petitioner, because in that case the Court found that in the first assessment, the AO had applied his mind in the computation of income and that there cannot be a mere change of opinion. When, at the first assessment all the relevant aspects are considered and there is proper applicability of mind for ascertainment of the amount of taxable income and of the tax payable thereon, then in the absence of any error or mistake being discovered or found, the AO later on cannot merely for the sake of giving a different opinion, change the earlier opinion. However, in cases where an error or mistake is detected, it can never be said that there is only a mere change of opinion. The mistake or error which is detected and which constituted a valid decision or cause to form a belief in the first assessment as a result of which the income has escaped assessment, would constitute a reason to believe that the income had escaped assessment and such cases where mistakes and errors are detected and which constitute a valid justification or cause to form a belief sought to be corrected, cannot be said to be cases of mere change of opinion. In M/s Chimanram Motilal's vs. CIT's case (supra), on which reliance was sought to be placed, it was in fact observed by Beaumont, C.J. that : "if it be once admitted that an assessment may be reopened under s. 34 (and the language seems to make such an admission inevitable) it is very difficult to draw the line in any way, and to say that it can only be reopened on a particular ground, such as change of facts, or alteration in the law". It was in the facts of the case held that the notice issued under s. 35 was justified. The decision is rendered under the old law while we are concerned with the provisions of s. 147 of the said Act, which we have tried to construe in our humble light. 13. Under the above circumstances, we find no merit in these petitions and they are, therefore, rejected. Rule is discharged in each of them, with no order as to costs.

Author: R Abichandani

Praful Chunilal Patel vs M.J. Makwana, Assistant ... on 19 February, 1998

Gujarat High Court

Court No. - 37 Case :- WRIT TAX No. - 6 of 2010 Petitioner :- M/S Ajay Poly Pvt. Ltd. Respondent :- Union Of India And Others Petitioner Counsel :- Nishant Mishra Respondent Counsel :- C.S.C.,Asgi 2009/4 Hon'ble Rajes Kumar,J. Hon'ble Subhash Chandra Nigam,J. Heard Sri Nishant Mishra, learned counsel for the petitioner and Sri U.K. Pandey, learned Standing Counsel. Learned counsel for the petitioner states that he is not challenging the validity of Section 6-A of the Central Sales Tax Act and not pressing for relief and submitted that the assessing authority may be directed to consider the case in the light of the judgment of this Court in the case of M/s. A.C.P.L. Jewels Private Ltd. vs. Union of India and others, reported in 2009 NTN (Vol. 41)-271. In the present case the assessing authority has already passed the assessment order for the assessment year 2006-07. It is open to the petitioner to file appeal against the said order before the appellate authority under Section 55 of the VAT Act and it is open to the petitioner to take all the pleas which is available to the petitioner including placing reliance upon the decision of this Court in the case of M/s. A.C.P.L. Jewels Private Ltd. vs. Union of India and others (Supra). In view of the above, the writ petition is dismissed on the ground of alternative remedy. Order Date :- 6.1.2010 OP

M/S Ajay Poly Pvt. Ltd. vs Union Of India And Others on 6 January, 2010

Allahabad High Court

ORDER N.L. Dash, J.M. In this appeal, the assessee's only grievance is against the order of the learned CIT (A) in upholding the assessment order where the partner's salary has been disallowed although the amended deed of partnership was produced before him at the time of rectification under section 154 of the Income Tax Act. The assessing officer although accepted the amended deed of partnership but did not allow the partners' salary. 2. This is a case where the partnership has been constituted right from the beginning i.e., 31-3-1993 between two partners having 50% share of each and both the partners were working partners. According to clause 13 of the deed of partnership, it has been stated that both the partners shall participate in the management and conducting of the business and if so decided, both the partners shall be entitled to draw monthly salary at the rate as will mutually be settled from time to time subject to the provisions of the Income Tax Act. But the assessing officer disallowed the remuneration on the ground that there was no specific mention in the deed about the quantification. 2. This is a case where the partnership has been constituted right from the beginning i.e., 31-3-1993 between two partners having 50% share of each and both the partners were working partners. According to clause 13 of the deed of partnership, it has been stated that both the partners shall participate in the management and conducting of the business and if so decided, both the partners shall be entitled to draw monthly salary at the rate as will mutually be settled from time to time subject to the provisions of the Income Tax Act. But the assessing officer disallowed the remuneration on the ground that there was no specific mention in the deed about the quantification. 3. The revenue's stand is that in consonance with the provisions of section 40(b) and as per the CBDT Circular, salary and remuneration cannot be allowed in this case as because there is no quantification in the deed of partnership. But the assessee's contention is that although up to assessment year 1996-97 there was relaxation by the revenue but the CBDT should relax rigour of law and should not extend it when both partners are working partners merely on the point of technicalities the remuneration should not have been disallowed to the working partners. In this connection, the learned Counsel on behalf of the assessee filed a copy of the partnership deed before us, trading and P & L Account of the firm for the relevant assessment year and one article written by him and published in tax literature on the heading Circular No. 739 relating to disallowance of partners' remuneration - invalid, illegal and devoid of binding force (See (2003) 127 Taxman 13 (Mag.)). He also filed one order of the 'E' Bench, ITAT Kolkata in the case of Asstt. CIT v. Priya Gopal Bishoyi Grandson (IT Appeal No. 1032 (Cal.) of 2000) in favour of him. 3. The revenue's stand is that in consonance with the provisions of section 40(b) and as per the CBDT Circular, salary and remuneration cannot be allowed in this case as because there is no quantification in the deed of partnership. But the assessee's contention is that although up to assessment year 1996-97 there was relaxation by the revenue but the CBDT should relax rigour of law and should not extend it when both partners are working partners merely on the point of technicalities the remuneration should not have been disallowed to the working partners. In this connection, the learned Counsel on behalf of the assessee filed a copy of the partnership deed before us, trading and P & L Account of the firm for the relevant assessment year and one article written by him and published in tax literature on the heading Circular No. 739 relating to disallowance of partners' remuneration - invalid, illegal and devoid of binding force (See (2003) 127 Taxman 13 (Mag.)). He also filed one order of the 'E' Bench, ITAT Kolkata in the case of Asstt. CIT v. Priya Gopal Bishoyi Grandson (IT Appeal No. 1032 (Cal.) of 2000) in favour of him. 4. On hearing both the sides and going through the relevant records, we find that the assessee has a good case because it is a fact that both the partners are there right from the beginning and their share allocation is stipulated and not changed from time to time. They have also made provision vide clause 13 of the deed of partnership regarding remuneration to be paid in accordance with the provisions of the Income-tax Law at the end of the accounting year. it is also a fact that they cannot go beyond the tax laws and they are to make payment within the permissible limit. The simple reason that for commercial expediency, according to the determination of profit at the end of the accounting year they stipulate the quantification portion within the permissible limit should not be a bar for them to do so, as it is within the parameter of law. Although the learned Departmental Representative has taken stringent view of the matter, we are not inclined to agree with them and allow the appeal in favour of the assessee and against the revenue. 4. On hearing both the sides and going through the relevant records, we find that the assessee has a good case because it is a fact that both the partners are there right from the beginning and their share allocation is stipulated and not changed from time to time. They have also made provision vide clause 13 of the deed of partnership regarding remuneration to be paid in accordance with the provisions of the Income-tax Law at the end of the accounting year. it is also a fact that they cannot go beyond the tax laws and they are to make payment within the permissible limit. The simple reason that for commercial expediency, according to the determination of profit at the end of the accounting year they stipulate the quantification portion within the permissible limit should not be a bar for them to do so, as it is within the parameter of law. Although the learned Departmental Representative has taken stringent view of the matter, we are not inclined to agree with them and allow the appeal in favour of the assessee and against the revenue. 5. In the result, the appeal of the assessee is allowed. 5. In the result, the appeal of the assessee is allowed.

Eqbal Ahmed & Co. vs Ito on 22 April, 2004

Income Tax Appellate Tribunal - Kolkata

Gujarat High Court Case Information System Print SCA/1078120/2008 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 10781 of 2008 ========================================================= ISMAILBHAI EBRAHIMBHAI KARIM MALEK - Petitioner(s) Versus STATE OF GUJARAT & 6 - Respondent(s) ========================================================= Appearance : MR AMIT V THAKKAR for Petitioner(s) : 1, 1.2.1,1.2.2 GOVERNMENT PLEADER for Respondent(s) : 1, None for Respondent(s) : 2 - 7. ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 29/08/2008 ORAL ORDER Leave to produce correct copy of Annexure M on record is granted. Notice returnable on 26th September 2008. In the meantime, order dated 31.3.2008 passed by the Collector shall stand stayed. Direct service. (Akil Kureshi, J.) (vjn)     Top

Author: Akil Kureshi,&Nbsp;

Ismailbhai vs State on 29 August, 2008

Gujarat High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM MACA.No. 1411 of 2006() 1. THE ORIENTAL INSURANCE CO.LTD., ... Petitioner Vs 1. JAMES JOSEPH @ CHACKOCHAN, ... Respondent 2. SUNNY JACOB, EDACKATTU HOUSE, 3. MATHEW VARGHESE, NELLIYANIYIL HOUSE, For Petitioner :SRI.VPK.PANICKER For Respondent :SRI.MATHEW JOHN (K) The Hon'ble MR. Justice J.B.KOSHY The Hon'ble MR. Justice P.N.RAVINDRAN Dated :04/07/2008 O R D E R J.B.KOSHY & P.N.RAVINDRAN, JJ. ------------------------------- M.A.C.A.NO.1411 OF 2006 (F) & CROSS OBJECTION.NO.33 OF 2008 ----------------------------------- Dated this the 4th day of July, 2008 J U D G M E N T KOSHY,J. This appeal is filed by the Insurance company against the award of the Motor Accidents Claims Tribunal, Thrissur in directing to pay the amount awarded to the claimants and recover it from the insured. According to the Insurance company, since the claimant was travelling as a gratuitous passenger in a goods vehicle, he is not entitled to coverage at all and it should not be asked to deposit the amount. A written statement was filed stating that no premium was paid for covering the gratuitous passenger. The owner filed cross objection stating that in fact premium was actually paid to the gratuitous passenger. We have gone through the insurance policy. An additional premium of Rs.50/- is paid for liability  M.A.C.A.NO.1411 OF 2006 (F) & CROSS OBJECTION.NO.33 OF 2008 2 for one non fare paying employee. There is no case that the claimant who sustained injuries in the accident was an employee of the owner of the vehicle insured and there is no case for the Insurance company that he was a fare paying passenger. Therefore, the claimant is squarely covered under the policy. The contention of the appellant is that when additional premium is paid for non fare paying passengers, it should be proved that he was travelling in the goods vehicle as the owner or the agent of the owner of the goods. It is the case of the claimant that he was travelling because he used to purchase latex for one Thomas Jacob, proprietor of M/s.Edackattu Agencies. Ext.A7 certificate issued by him was also produced. Merely because Ext.A7 was not proved by examining the witnesses, who issued it, tribunal did not accept that. Ext.A7 was not seriously objected to when it was marked. Specific coverage was issued for non fare paying non employee passenger when premium was accepted. The burden is on the Insurance company to show that the  M.A.C.A.NO.1411 OF 2006 (F) & CROSS OBJECTION.NO.33 OF 2008 3 claimant was not covered under the policy. Ext.A7 was produced. That was proved by PW1. There was no contrary evidence. In any event, we are of the view that one non fare paying passenger was specifically covered as per the terms of the policy and in view of the acceptance of the premium by the Insurance company, Insurance company is liable to pay the amount. In the above circumstances, there is no merit in the appeal filed by the Insurance company, and in view of the specific coverage, we dismiss the appeal and allow the cross objection. J.B.KOSHY, JUDGE P.N.RAVINDRAN, JUDGE prp  J.B.KOSHY & P.N.RAVINDRAN, JJ. -------------------------------------------------------- M.F.A.NO. OF 2006 () --------------------------------------------------------- J U D G M E N T ---------------------------------------------------------

The Oriental Insurance Co.Ltd vs James Joseph @ Chackochan on 4 July, 2008

Kerala High Court

JUDGMENT Bind Basni Prasad, J. 1. This is an application under Article 226 of the Constitution arising out of an appeal which has been decided by the Hon'ble Board of Revenue of Uttar Pradesh (hereinafter referred to as "the Board"). The relevant facts are that a suit under Section 59, U. P. Tenancy Act, 1939, (hereinafter referred to as "the Act") was filed by the opposite party no. 2 against the applicant and opposite party NOS. 3 to 7 claiming that he was the sole tenant of the land in dispute. The applicant contended that he was a joint tenant with opposite parties NOS. 2 to 5. Opposite party NOS. 7 and 8 were the zamindars. The trial Court dismissed the suit, but on appeal the Additional Commissioner allowed the appeal and decreed the suit holding that opposite party no. 2 alone was the tenant of the land in dispute. The applicant filed second Appeal no. 691 of 1949-50 before the Board and it came up for hearing on 15-3-1951, before Sri T. N. Srivastava, one of the Judicial Members of the Board. After hearing arguments, he delivered a judgment on the same date by which he allowed the appeal and set aside the decree of the learned Additional Commissioner restoring the decree of the trial Court. As required by Rule 170 of the Revenue Court Manual, the judgment was sent for concurrence to Sri R. N. Singh, another Judicial Member of the Board, who without hearing the parties wrote his judgment on 7-4-1951, disagreeing with Sri T. N. Srivastava and proposing the dismissal of the appeal. The judgments of both the Hon'ble Members were then sent to a third Judicial Member viz., Sri A. Eauf who by his judgment, dated 12-4-1951, concurred with the judgment of Sri T. N. Srivastava. These three judgments were then sent to Sri J. 0. N. Shukla, the fourth Judicial Member who by his judgment dated 25-4-1951, disagreed with the judgment of Sri T. N. Srivastava and agreed with Sri R. N. Singh. It appears that there was a meeting of the Members on 28-4-1951, and it was agreed that the Additional Commissioner's judgment should be upheld. The appeal was accordingly dismissed. 2. The contention on behalf of the applicant is that, having regard to the provisions of Order 41, Rule 30, Civil P. C., (hereinafter referred to as "the Code) the judgments of Sarvashri R. N. Singh, A. Eauf and J. 0. N. Shukla are no judgments because they were delivered without giving an opportunity to the parties to be heard. This point came up before a Bench of this Court in Ram Manohar v. Board of Revenue, U. P., Allahabad, 1951 ALL. L. J. 548, and the contention that the other member should have heard the parties was repelled. In view of this decision, the Division Bench has referred the following point for decision by a Full Bench : "When a single member of the Hon'ble Board of Revenue has given a judgment modifying or reversing the decree under consideration and sends it to another member of the Board of Revenue, can the latter give a judgment without hearing the parties or their pleaders as required by B. 30 of Order 41, Civil P. C. ?" 3. I am conscious of the fact that the procedure which the Hon'ble Members of the Board of Revenue have followed has been long in vogue in the Board. I am reluctant to disturb such a long standing practice unless the law compels me to do so. The point involved is essentially one of procedure. I have arrived at the conclusion that such a procedure is not warranted by the law. 4. Section 243, U. P. Tenancy Act, 1939, which applied at the time when the appeal was heard by the Board provides as follows : "243. (1) The provisions of the Code of Civil Procedure, except (a) provisions inconsistent with anything in this Act, so far as the inconsistency extends; (b) provisions applicable, only to special suits or proceedings outside the scope of this Act; and (c) the provisions contained in List I of the Second Schedule, shall apply to all suits and other proceedings under this Act, subject to the modifications contained in List II of the Second Schedule. (2) The rules mentioned in the Second Schedule of this Act shall be interpreted, in the case of Agra, as referring to rules contained in the First Schedule to the Code of Civil Procedure 1908, as altered or added to by the High Court of Judicature at Allahabad under Section 122, Civil P. C, 1908, and in the case of Oudh as referring to rules contained in the first Schedule to that Code as altered or added to by the Chief Court of Oudh, under Section 122 of that Code." 5. From List I of the Second Schedule it will be seen that no rule of Order 41 or 42 of the Code of Civil Procedure has been exempted in its application to cases under the Act. Order 41 deals with appeals from original decrees and order 42 with appeals from appellate decrees. Order 42 contains only one rule which provides as follows : "The rules of Order 41 and Order 41A shall apply, so far as can be, to appeals from appellate decrees". "For detailed provisions to be followed in second appeals, we must, therefore, turn to 0. 41. 6. Now List 2 of Schedule 2 of the Act contains the modifications subject to which certain provisions of the Code apply to cases under the Act. Section 98 of the Code provides for decisions where appeal is heard by two or more Judges. Serial No. 5 of List 2 contains the following modification to Section 98: "Nothing in this section shall require two members of the Board to sit together in the exercise of appellate or revisional jurisdiction under this Act." 7. Serial No. 14 of List 2 contains the following modification to Rules 30 and 31 of Order 41 of the Code: "No judgment of the Board need be dated or signed, or pronounced in open Court." Rule 30 of Order 41 of the Code provides as follows: "The appellate Court, after hearing the parties or their pleaders and referring to any part of the proceedings, whether on appeal or in the Court from whose decree the appeal is preferred, to which reference may be considered necessary, shall pronounce judgment in open Court, either at once or on some future day of which notice shall be given to the parties or their pleaders." 8. The important point to note in the above rule is that it requires the parties to be heard before the appellate Court gives the judgment. This provision has not been exempted nor modified in its application to the appeals under the Act. 9. I may refer also to Rule 170 contained in the Revenue Court Manual. It provides: "When the Board has distributed its appellate business among the members, the order of a single member is the order of the Board, but no decree or order coming under the consideration of the Board in appeal shall be modified or reversed without the concurrent judgment of two Members of the Board." 10. This exhausts all the relevant provisions of law bearing upon the point under consideration, which have been placed before us. The position is that according to Section 98 of the Code, as applied after modification to appeals under the Act, it is not necessary for two members of the Board to sit together to hear an appeal. A single member may hear an appeal. If he dismisses an appeal, then his judgment according to Rule 170 of the Revenue Court Manual will be the judgment of the Board. But if he proposes to reverse or modify a decree, then there must be the "concurrent judgment" of another member of the Board. Under Rule 30 of Order 41 of the Code, there can be no judgment by an appellate Court without 'hearing the parties.' The other member to whom the appeal is referred is a member of the 'appellate Court.' All members who participate in the decision of an appeal whether agreeing with or dissenting from the judgment of the member who originally heard the appeal, are according to Rule 30 of Order 41 of the Code bound to give an opportunity of hearing to the parties. This rule is based upon the elementary principle of judicial procedure that no judgment should be given by a Court or a tribunal without giving an opportunity of hearing to the parties. The hearing of the parties goes a great way in the elucidation and thrashing out of the points involved in a case. It gives satisfaction to the parties. Justice should not only be done, but it should appear to be done. As the law is at present, a member of the Board may sit, hear, and decide, an appeal or revision singly. If he proposes to dismiss it his judgment will be the judgment of the Board. But if he pro-poses to reverse or modify a decree or an order, he must refer it to another member and the latter cannot give his judgment without giving an opportunity of hearing to the parties. The two members may not sit together to decide the appeal or revision, but each of them must give the parties an opportunity of hearing, separately though it may be before recording the judgment. In Ram Manohar v. Board of Revenue, U.P., Allahabad, 1951 ALL. L. J. 548, the effect of Order 41, Rule 30, Civil P. C., was considered. Reading it along with Rule 170 of the Revenue Court Manual, Sapru J. observed: "It is urged that the expression 'appellate Court' here means both the Members of the Board. We are unable to read any suck meaning into the words 'appellate Court' as used in this Rule. The appellate Court was, according to Rule 170, the Member hearing the parties but his judgment or order had to be concurred in by the other Member. This is the position as we see it under this rule." With the greatest respect I find myself unable to agree with the above reasoning. 11. The expression 'appellate Court' is not defined in Rule 170 or anywhere else. On the other hand, there is intrinsic evidence in Rule 170 itself to show that a single Member who hears the appeal is not the 'appellate Court,' for it is provided in that rule that if the single Member proposes to reverse or modify the decree or order under consideration then his judgment would not be the judgment of the Board. For his judgment to be effective the 'concurrent judgment' of another member of the Board is essential. In the absence of a definition of the expression 'appellate Court' in the Revenue Court Manual or in the Code, it must be given its plain ordinary meaning. It means all the members of the Board who participate in the decision of the appeal or the revision according to the rules. The other member of the Board to whom the single Member of the Board hearing the appeal or revision sends his judgment for concurrence is as much a part of the 'appellate Court' as the single member himself. For these reasons, I would dissent from the view expressed in Ram Manohar's case, 1951 ALL. L. J. 548. 12. I would answer the question referred by the Division Bench as follows; "When a single Member of the Board of Revenue has given a judgment modifying or reversing the order or decree under consideration and sends it to another Member of the Board of Revenue, the latter cannot give a judgment without giving the parties or their pleaders an opportunity of a hearing as required by Rule 30 of Order 41, Civil P. C." Kaul, J. 13. I agree. Sankar Saran, J. 14. I agree and have nothing to add.

Author: B B Prasad

Suraj Mal vs The Board Of Revenue, U.P., ... on 29 November, 1952

Allahabad High Court

IN THE HIGH COURT 0E KARNATAKA AT BANGALORE DATED THIS THE 2"'DAY OF FEBRUARY, 2010 BEFORE THE HON'BLE Mr. JUSTICE L. NAEAYANA~SHEHi_ MISC. FIRST APPEAL No.9112/20oS{THE§}Hf¢H-- BETWEEN: _,E_ Rakesh @ Arkesh S/o Babulal, 36 years, R/at No.10, ' Rajeshwarinagar, H 10"'Main Road, Laggerefz " H v_5 E Bangalore. _m*,_.\ ;;_v EAPPELLANT (By Advocate Sri}fiflESwa:a'REdfiy) AND: .. H~~-V 1. Th¢ Difettor} M/S Timothy Traye1s.(H§$_*;"; <.'Ltd., C/o AECS Layqut; Behind Hindustan Lever Ltd., Kundanahglli; Bafigalore~37. ~w2,"Tfie,¢anagerL""' """ ~Nationa1 Insurance Co. Ltd., ",D0TII,"Sathi Complex, E'La1bagh Mission Road, -Hangal¢re~27_ .. RESPONDENTS(Aaybcate Sri.A.M.Venkatesh for R-2) uyAA"{R--1 .. Notice dispensed with) 'l'h:;.s Appeal is filed under Se«:::.1'?3{1) 925 M?' Act against the judgment and award ciated 21.4.2608 pasged in MVC %¥<3.1433/200? cm tha f:i.3..-aa of the XVIII Adéls Judge, Court caf Small Cau$Veis_,";_1~§ember, 2~iACf'I'«---4, Metrapaiitan Area; Ba::galc§:§¢"vv;g>art}.y allowing the alaim petitian for cqmpaggatian and seeking enhanaenzent cf <:~.aI%nsa.tian---.4' " This Appeal is ccszning--<>n hazaiéirzg this day, the Ceurt delivegea the f¢1lQwimg:,. *,_ »y_mm..... J §'fi Q,g E §_T i:' " Aggriaved by ."VA¢aQ3;Ergv>ée%;fz;3;V2é;'ticn awarded by the MACT, Bangalore awarding Ra.83',8§3€°£T;f4%';".V--.§iai.::3éé.rz.*;-- has preferraé this appeal for enham':ez:1er::t"'. ' ,\ " €§_§:»:un'$el' "'fe:t«" the aypeilarzt submits that the V awarded. tcswaards pain and suffering is $22 'V§kew§a;i9:'j__§i€.i@3 fie $1zj'mz:its that doctm: aha has ?aaen..é;?;a;*:zined. as WW2 has winad that there was a A ffigféazturez af right fibuia and arraaraine almziesziar ficzint fiulbluxatian ané. cther injuries with surgery T ax and aftex discharge The was diraated fcllaw 22? treatment. A3 962: 'aha émctarg he has gufferezd 2$% < E ' '*'i::1?:eV'3g>é;z?:;L;ie?:3..¢ 3 aigbility ta the lcwer limb and 1a%g£¢€:fi§flgh¢1e body. Income has been taken 215 R3: «;~:}";§:*'aa §<§=._ appellant was warking as afiimasmnfiv asxzé...'gs:=.~¥:'E,*;;i:;f:r;;.; ;a1c:ré*.. -~ than Rs.35fl0,/---But the ?.;m*§unsLii;__§*ias afifay RS . 160,/«=3 yer day anal aizvi"':;?Te«:sssj}?*%~'J't' csfzhez: haads alss what has been Aa 'éa:'a3:c--?,VAecig. .:;;'s.._g:«§i"<.}.¢wex" $i<:ie, 3. Learnadu ;:'{'»§i13.:<::1sg§'_';{ éahe insuranae canpany " _ha'*zs Sbeen awarded; by aha triblxngzfli:r.'§.;§:;;:_!-g;:s;~:$;'§e§ fia5:3.~<;!._.. 2-jge requests this smart ta éisiéisg' " ' ée. 3;? .,hav*é" Eieaéfd '%:;h:é cmznsei appearing fer bath 5:- §w¥2 3§§§%cx figs stateé that thare 33 2a% g_a§b5:E;,;'§.,3?;V't;;y.'4'.V'tG the iawar Kim. aria third sf it 'A g;2a;%m%;§_ 1:5 Eaaas than '? arzé therefare it es:-malfi. be ..ATé%:a§;'i1:é:?2'AAas ?% ta: the whale hwy. 'She galaxy which ~f§éé been taken at Rs.:fi6f~ per $3? is Ga the iawer "side. garage 31.1: hag been anhancaé. to Rsw1§@;"--~ gas: égay which aams ta Rgméfifififm §er manth. Henge the 'Y aalazzlaticn wauld be {R.s.2.52 x 3.2 X 15} R$.56,'?GG;'~«, Accaréizzgly the sam i.s;f '-,awax'ded under the head loss of future to éiaabiiity as against R£.3?,85Gf~3H §nf:é$§éd§ Q£ pain and suffering, ais 353:: anhanaea by Rs.1G,GGO/f T5e t$ibfi§g1 ha$qé%§2§ea 23.5909/~ tcwards micag and ia§iéa$£%i ghargés, it is emhancafi b§;§w,ié3$é§}~, $§é% tha head 1953 of earning of treatraant, the tr1bungl"%§$ é$a%ééd §%;6g§§}é, it is enhanced by Rs.1e;éd§;§f3 3ég§§,§§§:appellant :3 emtitlaé as 1?.$';'"?;§ rcunded off ta Rs$1,$¢3éQ$;¢;- . u'* 58 _;j2§¢€:ordiiag;}.Vjgfi. :the appeal is partly' allazsxed. "r_'§;9é1:§5: %_is entitled far an aéditianal }¢¢m§¢aségg¢§~§£ §$¢4af95$;« ané ii ghall aarry the gag izifierést as it 2.3 awazfiaé by ma tribunal at " ,3 . a{;" "fSr:%..A.Er££§?'an3cates}': is permittfi ta file pewaz? ~.'E:::1x' Rm? wsithizg izwa weeks. -9 Sd/- EEBGE R;'§§§2i%

Author: L.Narayana Swamy

Sri Rakesh @ Arkesh S/O Sri. ... vs The Director M/S Timothy Travels ... on 2 February, 2010

Karnataka High Court

Security Code Check for Accessing Judgment/Order Document   eLegalix - Allahabad High Court Judgment Information System Welcome to eLegalix, Judgment Information System for Allahabad High Court and Its Bench at Lucknow. Disclaimer Please enter the 4-digit numerical security code below to download Judgment/Order Document   Security Code:    GO   Visit http://elegalix.allahabadhighcourt.in/elegalix/StartWebSearch.do for more Judgments/Orders delivered at Allahabad High Court and Its Bench at Lucknow. Disclaimer   System designed and developed at Computer Centre, High Court, Allahabad.

Ram Milan Chaturvedi vs Transport Commissioner & Others on 28 August, 2010

Allahabad High Court

JUDGMENT Niamatullah, J. 1. This is an application for stay of execution of a final decree passed in a suit based on a mortgage. A preliminary decree had been previously passed. The mortgagor preferred a first appeal to this Court impugning the correctness of the preliminary decree. In the meantime an application was made by the mortgagor to the Court of first instance for the preparation of a final decree. The mortgagor then made an application to this Court praying for stay of the proceedings in the Court of first instance for the preparation of the final decree. It was held by a learned Judge of this Court that proceedings for the preparation of a final decree could be taken pending an appeal from the preliminary decree. A final decree has since been passed by the Court of first instance and the present application is for stay of execution of the final decree. 2. A preliminary objection has been taken by the learned advocate for the mortgagee (opposite party) that this Court has no power to order the stay of the execution of the final decree which is not itself under appeal. It is contended that in so far as the appeal pending in this Court is from the preliminary decree, which is not itself capable of execution no order for stay of execution can be passed under Order 41, Civil P.C., The contention is so far correct that an order for stay of execution of the final decree cannot be passed under Order 41, Civil P.C., but the powers of this Court as regards stay of proceedings pending in the Court below are not exhaustively defined by Order 41, Civil P.C., If having regard to the ends of justice, it is expedient that the execution of the final decree should be stayed pending the appeal from the preliminary decree, this Court has got ample power to stay it under Section 151, Civil P.C., It cannot be denied that any interference with the preliminary decree in the appeal there from will have the effect of the final decree being vacate and that if execution of the final decree is allowed to proceed rights may come into existence before the disposal of the appeal from the preliminary decree. In order to avoid possible complications we think it necessary in the ends of justice that the execution of the final decree be stayed pending the appeal from the preliminary decree. It may be and generally is expedient that proceedings for the preparation of the final decree should not be stayed pending an appeal from the preliminary decree because the mere passing of a final decree will not in any way affect the rights of the parties to the appeal from the preliminary decree. On the other hand, if the preliminary decree is affirmed on appeal some further time will be needed for proceedings leading to the final decree. 3. We are clearly of opinion that this Court has power under Section 151, Civil P.C., to order stay of execution of a final decree during the pendency of an appeal from the preliminary decree. We hold that the preliminary objection has no orce, and is accordingly overruled. 4. As regards the merits, it is contended on behalf of the mortgaged (opposite party) that the value of the mortgage' property is very much less than the de cretal amount and that any delay in having the property sold is likely to raise the mortgage money without any chance of its recovery in full from the mortgaged property. It is not disputed that the mortgagees' remedy under Order 34, Rule 6 Civil P.C., is barred. It is also admitted that the value of the property is less than the decretal amount. In these circumstances it is obvious that the mortgagees are not likely to obtain satisfaction of the mortgage money from any property other than the mortgaged property. The applicants (mortgagors) should indemnify the mortgagees against possible loss which may be consequent on the order of stay. We are of opinion that the equitable course is to order the stay of execution of the final decree on the applicants (mortgagors) furnishing security to the extent of one year's interest on the decretal amount at the rate of interest laid down in the decree. Such interest comes to Rs. 8,000. Accordingly we allow this application on condition of the mortgagor applicants furnishing security for Rupees 8,000 to the satisfaction of the lower Court within three months. If security is not furnished within the aforesaid period execution of the final decree shall proceed.

Author: Niamatullah

Janki Das And Anr. vs Sheo Prasad And Anr. on 23 October, 1931

Allahabad High Court

JUDGMENT SRINIVASAN J. - One Subbiah Moopanar left a will dated 25th February, 1954. Under this will he made various bequests and left the rest of his estate to Shanmuga Moopanar, the minor son of his brother, Sankara Moopanar. One of the clauses in the will stated : "In the calendar year following a couple of years after my death, the said minor, Shanmuga Moopanar, shall create a charity trust under the name and style; T. S. Subbia Moopanar Memorial Charity Trust. He shall save by investing in the said nidhi on the 1st of June in every calendar year at the rate of rupees ten thousand per year, from and out of the net profit, excluding expenses, got from my estate which shall be succeeded by him and remain in his enjoyment. He shall pay to the said nidhi from the date of commencement of the nidhi for a period of ten years at the rate of rupees ten thousand per year in cash and should see that a sum of rupees one lack be finally invested as capital for my charity trust. While saving is made i the said manner for a period of ten years, in the meanwhile if necessary only the income that may be realised on the amount accrued as principal for the aforesaid nidhi, shall be distributed in may name for sacred functions. The charitable things that are liked by be are as follows. . . . ." Thereafter, the clause set out the purpose for which the income arising from the accumulated capital of the trust should be utilised. It further set out the manner in which trustees should be appointed, the succession to trusteeship and the rights and duties of the trustees. The assessee is the minor, Shanmuga Moopanar, and in the accounts of the previous year relevant to the assessment year 1958-59 a sum of Rs. 10,000 was taken out of the profits of the business and credited to the trust. The assessee claimed that this amount was deductible from his taxable income from the business. The Income-tax Officer rejected this contention holding that it was only an application of the income after it had accrued to the assessee and that it was not therefore an admissible items of deduction under the provisions of the Act. An appeal was taken to the Appellate Assistant Commissioner. The Appellate Assistant Commissioner, however, interpreted the terms of the will differently and took the view that the sum of Rs. 10,000 was diverted by an overriding title and that therefore in computing the true income of the assessee that amount should be excluded. The appeal was accordingly allowed. Against this order the department carried an appeal the true income of the asseseess that amount should be excluded. the appeal was accordingly allowed. Against this order the department carried an appeal to the Appellate Tribunal, the principle ground being that since the annual payment was enjoyed to be made out of the business, that itself should indicate that the payment was to be made out of the accrued profits, that it to say, it was an expenditure after the income had accrued to the assessee. the Tribunal, however, rejected this contention. It observed : "The simple point for consideration is whether there is a diversion of income by overriding title or not. There can be doubt that the will charged a payment of Rs. 10,000 before the assessee could claim any interest in the income of the year of account. As pointed out in Bejoy Singh Dudhuria 1 by the Privy Council it is not a case of the application by the assessee of part of his income in a particular way, but it is an allocation of a sum out of the income before it could get into his hands as income. . . ." In this view therefore the Tribunal accepted the decision of the Appellate Assistant Commissioner as correct. On the application of the Commissioner of Income-tax under section 66(I) of the Indian Income-tax Act the following question was referred for the determination of this court by the Tribunal : "Whether Rs. 10,000 is deductible from the profits of the business for the assessment year 1958-59 ?" "Whether or not the view of the Tribunal is correct, it seems to us that the Tribunal has not examined the terms of the will in order to reach a proper understanding of the provisions thereof. the portion of the Tribunals judgment which we have extracted above merely purports to say that the facts of the case came within the principle of the decision of the Privy Council in Bejoy Singh Dudhuria v. Commissioner of Income-tax Merely to observe that by reason of an overriding title the income has been diverted before it reached the assessee is really begging the question. That was the very point which the Tribunal had to decide and we regret to see that far from examining the question in any detail, the Tribunal has virtually assumed what it had to decide. The clause of the will that has been extracted earlier is the translation as it appears in the statement of the case. We are not satisfied with its accuracy or its completeness. We accordingly called for the original Tamil document and we shall set out what appears to us to be a proper translation of the relevant provisions of the will. After setting out that this is the last will and testament executed by him, the testator made the following dispositions of his properties. "I bequeath to minor, Shanmuga Moopanar, the salt pans and the rights connected there with covered by licence No. M.E. 59. After my death my brother, who is the natural guardian of the minor, shall obtain a transfer of the licence in the name of the minor and shall arrange for the carrying on of the business of salt manufacture. 2. I have also a business under the vilasam T. S. Subbiah Moopanar. Besides this, I have a business T. Shanmuga Moopanar Sons run in partnership with my brother, Sankara Moopanar. I bequeath to the minor, Shanmuga Moopanar, the entirely of this business. After my death the names of these businesses shall be changed to the vilasam of Shanmuga Moopanar. My interest in the partnership shall also be taken by minor, Shanmuga Moopanar. He shall take my place as partner in the firm and shall continue to do the business. while carrying on the business in that manner, the minor shall pay over to the various persons such rights, properties, cash and rights of enjoyment as conferred below and take the balance only as the capital of the business. In addition, he shall honour the conditions and distributions which I have indicated below. 3(a). the income-tax, super-tax, surcharge, estate duty and other claims of the state shall be paid by minor, Shanmuga Moopanar, from the estate funds. (b) In the year following after the expiry of two years form the year of my death, Shanmuga Moopanar shall established a nidhi known as "T. S. Subbiah Moopanar Memorial Dharmakshema Nidhi." On the first June of every English year he shall pay a sum of Rs. 10,000 to the nidhi from the income of my estate which has devolved upon the minor and which is being enjoyed by him. He shall in this manner save for the nidhi a sum of Rs. 1 lack by the payment of Rs. 10,000 per year in cash. This sum shall be treated as the capital of the nidhi. During this period of 10 years the income from such capital as has accrued to the nidhi shall be utilised in may name for certain purpose. Such charitable purposes which are to my liking are these. . . . . . . ." The further clauses of the document may be briefly indicated. In clause 4, the wife of the testator, Subbalakshmi Ammal, was given a right of residence in a house property. She was also given a right of enjoyment throughout her lifetime of the garage in Door No. 94 and the garden and site. The testator further stated that he had intended to purchase 85 cents of nanja land for her, and he directed the minor to purchase a certain Subbalakshmi Ammal during her lifetime. He made certain other bequests in her favour in clause 6. He directed the payment of cash of Rs. 1,000 to Pitchia and the purchase and the making over to him OF LAND not exceeding the value of Rs. 4,000. He also directed the purchase of a house worth about 1,500 in that persons name. By clause 7 he directed the payment of Rs. 1,000 to one Shanmughasundaram and the purchase of land of the value of Rs. 4,000 and a house worth about Rs. 1,000 on his account. A bequest of Rs. 200 was made to Kandiah Kambar, a menial in the service of the testator. The further clauses proceeded to make his brother, Sankara Moopanar, the testamentary guardian of the minor, Shanmuga Moopanar, and conferred a further right upon him to nominate any suitable person as guardian of the minor should occasion arise for such an appointment. In is upon a consideration of the above recitals that we have to decide whether the direction regarding the creation of a trust and the annual payment of Rs. 10,000 to the trust for a period of 10 years constitutes an overriding title which has the effect of diverting the income before it accrued to the legatee, Shanmuga Moopanar. Turning to the particular recital which directs the payment of this sum of Rs. 10,000 the exact expression used by The Testator is that "The minor shall from out of the income derived from the estate which has accrued to him and is being enjoyed by him, pay the sum of Rs. 10,000. In the earlier part the will directs that Shanmuga Moopanar shall pay the cash, properties, etc., to the person indicated in the document and take only the balance. In so far as creation or performance of the trust is concerned, he expresses himself in this manner "he shall honour the conditions and dispositions." As first blush it certainly does appear as if both for the reason that the creation of the trust is postponed to a date two years subsequent to the demise of the testator and the fact that the minor would have by that time entered upon the possession and enjoyment of the estate, the direction regarding the creation of the trust is not a condition precedent to the right of the minor to take over the estate. The bequest does not appear to have been made subject to the condition. The testator appears to recognise clearly that the minor would have obtained possession of the estate and enjoyment thereof, and when in those circumstances he expressed a desire for the creation of trust of this description, it seems difficult to consider the recitals as a condition, on compliance with which alone the legatee in entitled to take the estate. The question whether there was a diversion by an overriding title came to be considered by the Supreme Court in Commissioner of Income-tax v. Sitaldas Tirathdas. In that case the assessee sought to deduct certain sums from his income on the ground that under a decree he was required to pay these sums as maintenance to his wife and children. No charge on the property of the assessee had been created by the decree. The assessee relied upon the Privy Council decision in Bejoy Singh Dudhuria v. Commissioner of Income-tax. Their Lordships of the Supreme court pointed out that in that Privy Council decision there was a charge for maintenance created by the assessee and the view taken by the Privy Council was that the income must be deemed to have never reached the assessee having been diverted to the maintenance holders. Another case of the Privy Council referred to by their Lordships is P. C. Mullick v. Commissioner of Income-tax. That was a case where a testator appointed certain executors and directed them to pay Rs. 10,000 out of the income on the occasion of his sradh. When this amount was sought to be deducted from the assessable income, the Judicial Committee confirmed the disallowance observing that the payments were made out of the income of the estate coming into the hands of executors and in pursuance of an obligation imposed upon them by the testator. After examining the several cases which applied principle of the Privy Council decision either correctly or incorrectly, their Lordships of the Supreme Court proceeded to say : "In our opinion, the true test is whether the amount sought to be deducted in truth, never reached the assessee as his income. Obligations, no doubt, there are in every case, but it is the nature of the obligation which is the decisive fact. There is a difference between an amount which a person is obliged to apply out of his income and an amount which by nature of the obligation cannot be said to be a part of the income of the assessee. Where by the obligation income is diverted before it reaches the assessee, it is deductible; but where the income is required to be applied to consequence, in law does not follow. It is the first kind of payment which can truly be excused and not the second. The second payment is merely an obligation to pay another a portion of ones own income, which has been received and is since applied. The first is a case in which the income never reaches the assessee, who even if he were to collect, it does so, not as part of his income, but for and on behalf of the person to whom it is payable....." It is on an application of these tests propounded by the Supreme Court that we have to reach a conclusion one way or the other. Mr. Srinivasan, learned counsel for the assessee, has referred to Commissioner of Income-tax v. Manilal Dhanji In that case the assessees father had created a trust in respect of some shares and a sum of Rs. 30,000 for the benefit of his four sons including the assessee. The assessee himself and two others were the trustees. The trustees were to hold the trust funds upon trust, to pay the net interest and income thereof to the assessee for the maintenance of himself and his wife and for the maintenance, education and benefit of all his children till his death. Certain incomes accrued from the said trust funds and the question whether this income was liable to be included in the total income of the assessee arose. Their lordships construed the terms of the settlement deed and held that the expression extracted above was not indicative of a mere desire or hope but imposed a binding and obligatory trust. The assessee was not the sole beneficiary under the trust deed. He held the income on trust for himself, his wife and children. That being so, the department was not entitled to include the income from the trust in the total income of the assessee as if he was the sole beneficiary under the trust deed. We are not able to see what assistance this decisions affords. That was a clear case of the creation of a trust and the assessee in that case was on of the trustees of a valid trust. The beneficiaries under the trust included persons besides the assessee himself and that being so it clearly followed that income could not be regarded as the exclusive income of the assessee or for any reason liable to be included in his total income. The learned counsel for the assessee has also referred to Seth Motilal Manekchand v. Commissioner of Income-tax, where the rule in Bejoy Singh Dudhuria v. Commissioner of Income-tax was followed. Their Lordships of the Supreme court referred to this decision in Commissioner of Income-tax v. Sitaldas Tirathdas, though they did not express any opinion about the correctness of that decision. That was however a case where a managing agency was divided between two members of the Hindu joint family, the father and the son each taking a moiety. It was stipulated that each of them should pay the mother a certain portion of the share in the managing agency remuneration. The Bombay High Court took the view that under the deed of partition the father and son really intended that they were to receive only a portion of the managing agency commission and that that part which has to be given to the mother was diverted before it became the income of the father or the son. This decision also does not render any special help for consideration of this case except as laying down the proposition that where a part of the income is diverted by an overriding title it cannot be taken as the income of the assessee. In a recent decision decided by us in T.C. No. 137 of 1960 the question of construction of a will as in the present case arose. There the testator who had no male issues gave to his wife the entirely of the income from the properties in these terms : "She shall however be entitled to utilise the income at her absolute discretion subject to the provisions for maintenance and education of my daughters." Thereafter followed the provision for maintenance and education of the daughters. There we took the view that was clear case where the condition operated so as to create in effect a trust in favour of the aughters and accordingly no part of the trust fund became part of the income of the assessee. We observed thus : "Whether the words of a will making a bequest to A upon condition that some benefit may be confirmed on B, constitute a mere charge in favour of B or effectuate a trust is entirely a question of interpretation. One simple rule is to ascertain from the language of the instrument whether A, the devisee or legatee, obtains a full beneficial interest in the legacy. If such be the case the condition of benefit to B can be given effect to by recognising a charge in favour of B. If, however, the interpretation of the will leads to the conclusion that the testator intended that A should hold the property for the benefit of himself and B, a trust and not a charge is necessarily created". It seems to us that in contradistinction to the subsequent parts of the will where specific properties are given on specific directions for the payment of certain monies to legatees were made, in so far as the creation of the memorial trust is concerned, the language employed by the testator is wholly different. What he clearly states there is that from out of the income from the properties which have passed into the possession of the devise and are under his enjoyment an annual sum of Rs. 10,000 should be found and allocated for the creation of the trust. Taken together with devisee, the conclusion seems to us to be incapable that it was only a pious wish or a hope that the testator was expressing and that the language does not lend itself to a construction similar to that adopted in the decisions of the Supreme court where an obligation diverting the income before it reached the hands of the devise was found to exist. After a careful consideration of the terms of the will in the light of the decisions above, we hold that this is clearly a case of an application of the income and not one of diversion by overriding title. The question is accordingly answered in the negative and against the assessee. The assessee will pay the costs of the department. Counselfee Rs. 250. Questions answered in the negative.

Commissioner Of Income-Tax, ... vs S. Shanmuga Moopanar. on 6 November, 1962

Madras High Court

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 21/04/2007 CORAM: THE HONOURABLE MR. JUSTICE G.RAJASURIA Crl.O.P.(MD) No.2289 of 2007 1.Poovalingam 2.Muthuramalingam .. Petitioners Vs. 1.The State of Tamil Nadu, represented by The Inspector of Police, Thallakulam Police Station, Madurai-2. 2.Thulasi Santharaman, The Tahsildhar, Madurai North Taluk, Madurai. .. Respondents Prayer Petition filed under Section 482 of the Code of Criminal Procedure, to call for the records and quash the F.I.R dated 25.01.2007 in Cr.No.156 of 2007 on the file of the first respondent. !For Petitioners : Mr.C.Dhanaseelan For Respondents : Mr.Samuvel Raj Additional Public Prosecutor :ORDER This petition has been filed to call for the records and quash the F.I.R dated 25.01.2007 in Cr.No.156 of 2007 on the file of the first respondent. 2. The facts giving rise to the filing of this petition would run thus: Cr.No.156 of 2007 came to be registered under Sections 420, 467, 468 and 477-A, I.P.C, based on the complaint of the Tahsildhar as against the petitioners herein. 3. The nitty-gritty, the gist and kernel of the allegations as against the petitioners are that as the power of attorney of some persons who are not real owners of the Government lands measuring 6 cents, he has chosen to enter into an agreement to sell with third parties by indulging in forgery and in fabricating documents. The petitioner also committed similar offences relating to the Government lands. Based on that, the first petitioner was arrested and released on bail. 4. Being aggrieved by and dissatisfied with, the action taken by the police, this petition is focussed on the main grounds as under: The petitioners/A.1 and A.2 did not sell any area in S.No.134/2 or in any other sub division. The second petitioner herein, is the power of attorney of one Mrs.Noorjahan, W/o.Anbukani, who is owning 3 cents in S.No.134/2 and another two persons namely Thangaraj and Veeranan, who are owning another 3 cents in the same S.No.134/2. The power was given by the respective owners by virtue of the registered document Nos.229/20002, 180/2002 respectively. The Natham settlement Patta No.575 issued by the Special Tahsildhar, stands in the names of the said Thangaraj and Veeranan in respect of the said 3 cents. So far no sale deed has been executed by the petitioner on the strength of the power deeds and there is only an agreement to sell exits and now it is also barred by limitation. 5. The learned Counsel for the petitioners would submit at the time of argument that those two persons they purchased it from one Balu who got the same from Lakshmana Pillai who was awarded with that land by the British Government for his meritorious service. 6. The learned Counsel for the petitioners would address this court on the main ground that absolutely there is no prima facie case made out in the F.I.R and there is no question of cheating any one based on the agreement to sell. Neither the Tahsildhar nor the Government was approached so as to cause loss to any one. Accordingly, he prays for quashing the F.I.R. 7. The learned Additional Public Prosecutor would reiterate what are all found specified in the counter affidavit filed by the Tahsildhar. The warp and woof of the counter is that after obtaining permission from the Collector only, the complaint was lodged; when the first petitioner on 25.01.2007 with an intention to get round seal with State emblem in a patta pass book, approached the Tahsildhar; the latter on seeing the forged signature of the Tahsildhar in that patta pass book, developed suspicion and probed into the matter and thereby, informed the Collector, Madurai about it and on his instructions, he enquired with his officials and also with the officials of the Registration Department and found out that the first petitioner is involved in committing the crimes of grabbing and scrounging the Government Poramboke lands especially, in S.No.134/2 of Madurai North Taluk, which is classified as Pudhukulam kanmai Poramboke. There is reference in the F.I.R about the agreement to sell emerged between the aforesaid power of attorneys and others. 8. It has to be seen at this juncture, whether there is any material to quash the F.I.R and the related proceedings? 9. The perusal of the F.I.R would show that the Tahsildhar levelled allegations as against the first petitioner herein that he with the criminal intention, entered into agreement to sell with third parties so as to sell the Government land in the said Survey Number. It is also the allegation of the Tahsildhar that the first petitioner only indulged in various other activities of fabricating pattas by forging the signatures of Revenue officials, etc. 10. The main thrust of the argument of the learned Counsel for the petitioners is that Section 420 I.P.C is in no way attracted as mere agreement to sell between the power of attorneys and third parties would not attract Section 420 I.P.C; the Tasildhar is not at all in any way concerned with this, whereas the learned Additional Public Prosecutor has correctly answered that once Government land is being attempted to be alienated by fabricating documents, the Tahsildhar who is responsible for looking after the Government lands is entitled to lodge a complaint and in this case, the Tahsildhar lodged the complaint with the permission of the Collector. 11. The learned Counsel for the petitioner would contend that there is no file relating to sanction. These are all matters which could be raised after the investigation is over and when the matter is being processed before the trial Court. Based on such facts, the F.I.R cannot be quashed. 12. The grievance of the petitioners is that there was no thorough enquiry at all and in a perfunctory manner the complaint on assumptions and presumptions was given; the Revenue Officer is going on filing complaints as against the petitioners. The learned Counsel for the petitioners also would submit that when there is bona fide title dispute, the question of invoking the criminal law would not arise at all. The proposition put forth by the learned Counsel for the petitioners that when there is bona fide dispute of title between the citizen and the State, naturally, it cannot be processed under the Criminal law 13. Hence, keeping this trait proposition, the investigation has to be conducted in an unbiased manner. Now, the Inspector of Police is investigating into the matter. I would like to observe that the higher official not less than level of the Deputy Superintendent of Police is required to investigate into the matter as this matter involves appreciation of civil law as well as the documents and it is not a mere case involving violent offences. Forgery has been alleged, by the defacto complainant. If that be so, there should be proper evidence on that score and necessary expert opinion would also be required. 14. The learned Additional Public Prosecutor would submit that the witnesses who are examined by the police disowned their signatures in the relevant pattas and their statements have also been recorded. Be that as it may, these are all intricate factual points which could be adjudged only after the investigation is over and not while this Court exercising its power under Section 482 of the Code of Criminal Procedure. 15. Hence, in this factual matrix, the following direction is issued: The Deputy Superintendent of Police concerned should call for the file from the Inspector of Police concerned and take up further investigation and during such investigation, due opportunity should be given to the petitioners for producing documents and the opinion of the hand writing expert shall be obtained and the matter should be processed accordingly. 16. The learned Counsel for the petitioners in an extempore manner would pray that since this matter involves the future and welfare of the second petitioner, a time frame may be fixed to complete the investigation. Hence, I would like to give direction to the effect that let the investigation be completed within a period of four months from the date of receipt of a copy of this order and report filed before the Court concerned. 17. With the above direction, this petition is disposed of. To 1.The Inspector of Police, Thallakulam Police Station, Madurai-2. 2.Thulasi Santharaman, The Tahsildhar, Madurai North Taluk, Madurai. 3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai 

Poovalingam vs The State Of Tamil Nadu on 21 April, 2007

Madras High Court

JUDGMENT J.D. Kapoor, J. 1. Parties are real brothers. Plaintiff has through this suit sought partition of their father's property No. 1775, Kucha Lattu Shah, Dariba Kalan, Chandani Chowk, Delhi. Case of the plaintiff in brief is that the plaintiff after the death of his father who was absolute owner of the suit property, became the owner of the one half share along with the defendant who has also one-half share in undivided property. Admittedly portion shown in mark yellow is in occupation of the defendant whereas the portion shown in green is in occupation of the plaintiff. Portion marked red is in common possession. According to the plaintiff the portion in his occupation does not comprise one-half of the area in the said undivided property and since both of them are real brothers, he has requested the defendant to partition the said property by metes and bounds according to their respective shares but the defendant has not bothered to give heed to his requests. Rather the defendant is trying to sell his portion of the undivided share in the said property. The cause of action arose on 3.1.91 when the defendant refused to partition the suit property. 2. On the other hand defendant has pleaded that there had been an oral family settlement amongst the parties to the suit by virtue of which the plan Mark A is said to be the share of the defendant whereas plan Mark B fell the the share of the plaintiff. This family partition is stated to have taken place about 35 years back. According to the defendant the said partition has already been implemented inasmuch as both the parties are residing separately in their respective portion with separate water and electric connections and have been paying house tax separately by way of cheques to Municipal Corporation of Delhi. Both the parties have been carrying out minor and major construction and renovation in their respective portion from time-to-time. It is further averred that in view of the said implementation of the oral family settlement, the plaintiff is estopped from filing the present suit. Apart from this the suit is also barred by limitation as the defendant has been in exclusive possession of his one-half share for the last 35 years and has been witnessing without objection the alteration, addition, construction and renovation in the portion in his possession. Besides this the defendant has taken objection that the suit is barred Under Order 2 Rule 2, CPC on account of failure of the plaintiff to seek similar relief in earlier suit which gave rise to the decision by way of Arbitrator. However, in the replication the plaintiff reiterated his averments and denied the oral family partition as alleged by the defendant. Admittedly, the earlier suit alleged by the defendant was with regard to the joint business of the parties and not regarding the suit property. The aforesaid pleadings gave rise to the following issues: 3. In support of their respective claims, the plaintiff alone has examined himself as PW1 whereas the defendant besides himself examined Raj Singh Bhola as DW 2. As is apparent the substantial issue that calls for determination is issue No. 1 i.e. whether there was the oral partition of the suit property and the same has been acted upon or not. The remaining issues are legal issues and can be taken up at the outset. Issue No. 2 : 4. Admittedly, the father of the parties died intestate and, therefore, the suit property is a joint property. It is well settled that whenever the partition of the property by way of inheritance is sought, the provisions of Limitation Act do not apply. Even if it is assumed for the sake of arguments that both the parties have been living in the same house in different portions together, does not foreclose the right of the parties to seek partition of a joint property by metes and bounds. So far as the plea that there has been oral family settlement is concerned, the same cannot come in the way of seeking partition by way of a suit by metes and bounds. 5. This Court has taken the view in Daya Devi v. Angoori Devi and Ors. in thatthe relief of possession by way of partition on the basis of inheritance is of such a nature that cannot be taken away by inaction or incapacity of a person in taking step well in time and, therefore, law of limitation providing the period of 3 years to 12 years for such a civil suit is of no relevance. As such the issue is decided in favor of the plaintiff and against the defendant. Issue Nos. 3 & 5 : 6. Both the issues are inter connected and are being taken up together. As regards the contention that the instant suit is barred by the provisions of Order 2 Rule 2, CPC. Admittedly, the prior litigation alleged by the defendant was in respect of the joint business of the parties and not in respect of partition of the suit property. Order 2 Rule 2, CPC provides that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of the suit and in case he omits to sue in respect of or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. Sub-rule (3) further provides that a person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs but if he omits except with the leave of the Court to sue for all such reliefs he shall not after wards sue for any relief so omitted. 7. It is not understandable as to how a joint business of the parties being conducted in tenanted premises and the suit for partition of property on the basis of inheritance involve the same cause of action. Both the suits are independent in nature and no relief or cause of action sought in any of the suit is inter-dependent or inter-connected or part of the whole. The same is the position with regard to the objection that the suit is barred by provisions of the Partition Act. There is no such provision which bars the suit for partition of the suit property being sought on the strength of inheritance. Both the issues stand decided against the defendant and in favor of the plaintiff. Issue Nos. 1, 4 & 6 : 8. The decision of Issues No. 4 & 6 rests upon the decision of Issue No. 1. Issue No. 1 is question of fact whether there had been an oral family partition of the suit property by virtue of which the parties were given portions which are being occupied by them respectively and whether such partition is deemed to have been implemented by virtue of possession of the respective portion by parties for more than 30 years from the date of institution of suit coupled with the factum of having carried out with repairs renovations and addition made by both the said portion by the parties in their respective possession. 9. Admittedly, the plaintiff is in occupation of a part of portion on the ground floor and part on first floor and similarly the defendant is also in part possession of some portion on ground floor and some on the first floor. It is contended by learned Counsel for the plaintiff that had there been any oral family partition, the question of such an arrangement would not have arisen as the partition of the property by way of oral family settlement by metes and bounds has to be in such a rational manner that there will be no scope for interference by any of the parties in possession of the respective portions and would entitle them to dispose of their portion as one unit. It was merely an arrangement that both the parties were keeping some portion on the ground floor and some on the and first floor and not by way of oral family partition. 10. However, the defendant has apart from examining himself on the point of oral family partition has examined Raj Singh Bhalla who is known to the family for last 50 years. In his testimony he has stated that the suit property was purchased by the grand father of the parties and after his death it came to be owned by their father Sh. Mithan Lal who died in the year 1954. Both the parties were having great love and affection with each other and they had been living in their respective portions of the said house prior to the death of their father. However, after the death of Mithan Lal his wife was also given a portion in the said house for independent living. According to this witness the oral family settlement was arrived at some time in 1954 when Mithan Lal was alive and in his presence both the parties agreed that they would live in separate portions. So much so after the death of their mother, the room in which she was living was taken by the defendant and the store room was taken by the plaintiff. Following such an agreement separate electricity bills and water connections were obtained though the house tax was being assessed in joint name of the parties and it continues to be assessed as such till date. The witness admitted that he had never met Bhikhu Mal. He also admitted that during the life time of their father both the parties use to live in separate portions but were having one kitchen. 11. It is contended by learned Counsel for the plaintiff that had there been any oral family partition, the question of assessment of house tax in joint names would not have arisen and the respective portion of the suit property would have been mutated in the name of the parties. Merely because the parties were paying electricity bills separately does not mean that the property was partitioned orally. The partition even if by way of inheritance or even if oral, unless is given effect to has no value either factual or legal. The moment the partition is made, the parties are accepted to approach the house tax authorities for independent house tax bills for their respective portions as well as the revenue authorities for mutation of their names. 12. In an identical case titled as Daya Devi v. Angoori Devi (supra), it was held that unless such partition is given effect to for all practical purposes, it cannot be accepted as a valid and legal mode of partition of the property. 13. There is a English case which has dealt with this aspect in pragmatic way. In Williams v. Williams, (1867) 2 Chancellory A 294 one John Williams died leaving behind a will whereby after making certain provisions for his wife, he gave all his property to his two sons in equal shares but the will was not admitted to probate as it was incomplete and after probate was refused, the elder brother declared that the invalidity of the will should make no difference and that the property should be "not mine not thine but ours". No agreement in writing was made but for the twenty years after the death of their father, the two brothers treated the property as their common property and their widowed mother lived with them until her death without insisting on her rights in her husbands' property and after the said period of twenty years, some differences arose between the two brothers and the younger brother brought a suit for division of the property claiming half share therein and relied upon the arrangement which had continued all these years as a family arrangement. In defense the elder brother disputed that it was a family arrangement on the ground that there were neither disputed rights or compromise of family differences nor any mutuality in the arrangement. It was held that for the validity of a family arrangement of such a category, it is also essential that there must be mutuality in the agreement arrived at between the parties that is to say/ some consideration, however small, must pass from the side of the person upon whom a right in property is sought to be conferred and mere love or affection between the members of the family is not enough. 14. Admittedly partition of the property particularly amongst the brothers has to be rational, practical and enforceable. By way of oral agreement, the parties may decide to live in such partitions which are not worthy of partition by metes and bounds but such oral arrangement for that purpose, the agreement between the parties is nothing more than an arrangement of convenience and not an agreement of partition of property. The partition of the property particularly where there is a plea of oral family agreement should be workable and each portion should be identifiable in such a manner that may entitle either of the parties to sell or dispose of the same in case any of the parties either out of any need or financial crunch decides to sell. 15. In the instant case the plaintiff is in occupation of certain portion on the ground floor and some portion on the first floor and same is the situation of the premises with the defendant. More so, the portion which was in occupation of the mother have also fallen for being divided between the parties. Over and above, the implication of an agreement by living in their respective portion for more than 30 years does not mean that the oral agreement has been implemented particularly when the property continues to be in joint name and has not been mutated till date in their respective names. Inaction on the part of the parties for getting the portion in their occupation mutated in their own names for the purpose of paying house tax shows that it is nothing but an arrangement between the two brothers that they should continue living in the portion which they have occupied when their father was alive. This nature of arrangement of living in convenient portion of the suit property at relevant time is borne out from the fact that they had one common kitchen for a long period. 16. On the contrary learned Counsel for the defendant has admitted the aforesaid contentions of the Counsel for the plaintiff in as much as that both the parties had agreed that they are co-owners of the suit property in equal shares and have been in possession of one half share each and the only grievance of the plaintiff is that the defendant has more than one-half of the portion in his possession and, therefore he has sought the partition of the property by metes and bounds. 17. Merely because some repair, renovation, alterations have been carried out in their respective portion does not prevent the plaintiff from seeking partition of the suit property. More so, some additional construction has been made by both the parties in the portion in their occupation. 18. Contention of the Counsel for the defendant that oral partition has been acted upon inasmuch as portions in the suit property are in separate occupation and the parties have carried out additions, alterations, renovations in their respective portions without any objection and interference by other party and that he along with the plaintiff has been pooling equal share towards payment of house tax and further he had also made addition, alterations or renovations in their portions almost at the same time when the defendant has done it some 20 years back has no significance so far as suit for partition is concerned as there is common entrance and staircase in the property. The parties are in possession of portions on ground floor, first floor, second floor and terrace and suit property cannot be partitioned as these are not vertically or otherwise single unit. All these facts when taken in totality make out a case of two brothers living peacefully in their respective portions but not a case of oral family agreement of partition of the property. Had there been any intention on the part of father of the parties to give equal shares in the property, there was no difficulty in executing the Will. Merely because parties have been living for more than 30-40 years in different portions of the house separately does not mean that such an agreement tantamount to agreement for partition of property. 19. Similarly the circumstance that after the death of mother of the party, one room occupied by her was occupied by the defendant while store was given to the plaintiff does not tantamount to partition of the property. Again it was a mutual agreement between the parties suiting to their convenience. Again oral partition of construction, renovation, alterations carried out by the parties in their respective partition without any one of them raising objection is of no relevance as whatever they have done, they have done through love and affection as they have been living together in the same house in their respective portions for long. 20. The instance of two brothers living in the two portions of a house they co-owned by way of inheritance does not mean that oral partition had taken place. It was just a mutual arrangement between the parties and inasmuch who had more need, he was allowed to occupy some extra portion but such an arrangement does not amount to oral agreement of partition of the suit property in equal shares. 21. Again contention of the Counsel for the defendant that plaintiff had shifted temporarily to Hauz Khan as parties were carrying on some alterations, additions in their respective portions whereby some of the portions in occupation of the plaintiff was going to be demolished does not mean that they were carrying out additions or alterations in a partitioned property. It was again an act of accommodation with each other. 22. Both the parties have admitted that whatever they have spent in their respective portions it was borne by them individually. 23. The contention of the Counsel for the defendant that plaintiff is estopped from challenging the oral family settlement has lost its sting and rendered redundant as the defendant has failed to establish the oral family arrangement. Mere plea that plaintiff had allowed defendant to carry out alterations or additions by incurring huge expenses at the relevant time is of no relevance and significance because both he parties carried out renovation, addition in the portion in their occupation. 24. In view of the foregoing reasons it is to be held that there was no oral partition of the suit property pursuant to family agreement and plaintiff is not estopped from filing the instant suit merely because he has been living in portion of the suit property for more than 30 years or so followed by addition and alternations made by them in their respective portions amounting to implied implementation. 25. In view of the above, preliminary decree of partition is passed in respect of the suit property, Mr. Manish Vashist, Advocate is appointed as Local Commissioner for suggesting mode of partition by metes and bounds in equal share. The fees of the Local Commissioner is fixed at Rs. 15,000/-. List on 28th August, 2003 for final decree.

Author: J Kapoor

Hari Ram vs Lala Om Prakash on 25 April, 2003

Delhi High Court

"Dear Sirs, Ref: Execution of decree against M/s. Sankar Coal Company, M/s. Bamundia Coal Co. Ltd. and M/s. Vijay Coal Foundry. I shoud report the latest position of the execution proceedings started against the above judgment-debtors. (1) M/s. Sankar Coal Co. of Cawnpore: The decree was sought to be executed through the Cawnpore court and accordingly the decree was caused to be transferred from the Alipore court. Enquiry through local lawyer could not find the whereabouts of the firm since they left the original place of their business. Of course, efforts are still being made to trace out the party before which nothing can be done towards execution. (2) M/s. Bamundia Coal Co. Ltd. : Execution could not be effected as yet. At the registered address of the 6rm so many name plates of some other parties were found hanging and persons available there totally disowned the identity of the judgment-debtors. Nothing could be done under the circumstances. (3) M/s. Vijay Coal Foundry: Execution could not proceed further than the initial stage. On information that a receiver was appointed for the affairs of the company efforts were made to find out the receiver himself and at the address on Netaji Subhas Road, Mc. Lloyd Building. But he could not be traced. As such, execution could not be effected since it is to be effected through the receiver in whom the company's property vested for the time being." 13. The Tribunal took that letter into consideration in disposing of the appeal. After setting out the facts and the rival contentions and submissions of the parties, the Tribunal observed as follows : "Whether a debt is a bad debt, and, if so, at what point of time it became a bad debt, are questions which in their Lordships' view are questions of fact, to be decided in the event of dispute by the appropriate Tribunal, and not by the ipso dixit of anyone else. The assessee has no option of declaring a debt as bad...... In every case it is a question of fact, to be determined after consideration of all relevant circumstances. " JUDGMENT Sabyasachi Mukharji, J. 1. In this reference under Section 256(2) of the I.T. Act, 1961, the Tribunal has referred the following question, as directed by this court : "Whether, on the facts and in the circumstances of the case, there was any relevant evidence before the Tribunal to support its opinion that the Appellate Assistant Commissioner was not justified in accepting the assessee's claim for deduction of Rs. 59,477 ?" 2. We are concerned in this reference with the assessment year 1971-72, for which the relevant accounting year is the calendar year 1970. In the return of income as well as during the assessment proceedings, the assessee claimed deduction of Rs. 59,477 being bad debts written off in its books of account. This amount was claimed on account of three debtors. The first debtor was M/s, Sankar Coal Co., Kanpur. There was a debt to be recovered from this company amounting to Rs. 47,659. The ITO found from the copy of the account filed that the assessee had regular transactions with this party up to the calendar year 1968 relevant to the assessment year 1969-70, when the outstanding balance stood at Rs. 47,659. This amount, the assessee claimed, was carried forward and written off during the year being unable to realise the amount. It was stated before the ITO and noted in the assessment proceedings that the assessee had filed a suit in the court of the Second Sub-Judge, Alipore, being Suit No. 26 of 1969, and as the defendant in that suit did not appear in the court, an ex parte decree was passed on the 28th April, 1970. It was further stated on behalf of the assessee that the assessee had failed to trace out the whereabouts of the assessee and, as such, the decree could not be executed. The ITO further noted that no evidence in support of these contentions had been produced to show that the firm had really been closed. In that view of the matter and in the absence of anything else the ITO disallowed the claim as being premature. 3. The second claim was for a sum of Rs. 4,546 in the name of M/s. Bamundia Coal Co. Ltd., Calcutta. From the copy of account filed before the ITO, it was seen, the outstanding balance of the calendar year 1969, relevant to the assessment year 1970-71, was carried forward and written off during the year. It was stated that the assessee being unable to realise the amount had filed a suit against the party in the Presidency Small Causes Court, Calcutta, being Suit No. 300 of 1970. That debtor did not appear and the suit was decreed ex parte on the 16th November, 1970. It was further stated before the ITO that the ex parte decree could not be executed as the colliery had been nationalised by an Ordinance dated 18th October, 1971. The ITO was unable to accept the contention of the assessee that the assessee could not realise its deb't of Rs, 4,545 in respect of the ex parte decree passed on the 16th November, 1970, and this was also disallowed by the ITO as premature. 4. The third debt was for a sum of Rs. 7,272 in the name of M/s. Vijay Foundry Pvt. Ltd. From the copy of accounts filed before the ITO it was seen that the outstanding balance for the assessment year 1969-70 was carried forward and written off during the year as bad debt as being unable to realise the amount due. It was stated that the assessee had filed a suit in the High Court, being Suit No. 3313 of 1969, and as the party did not appear, an ex parte decree was passed on the 11th May, 1970. It was further stated that the assessee being unable to trace out the company, which had been closed in the meantime, could not execute the decree. According to the ITO, the assessee's contention was not tenable in view of the fact that on enquiry it was found that the company was in the hands of a receiver since July, 1970, and the ITO was of the view that the assessee could have taken steps to realise the amount on the strength of the High Court decree. This claim was also disallowed by the ITO as being premature. 5. Being aggrieved by the aforesaid disallowance, the assessee preferred an appeal before the A AC. 6. The AAC considered these three bad debts and, after setting out the order of the ITO and the contentions of the parties, observed as follows : "In the case of M/s. Shankar Coal Co., the claim of the appellent has been disallowed by the ITO only on the ground that evidence regarding the firm being closed was not produced before the ITO and that the debt relates to assessment year 1969-70, and, therefore, the claim for bad debt is premature in the present assessment year. The very fact that the party had absented from appearing before the court in the suit filed by the appellant in 1969, and that an ex parte decree was passed and that the amount outstanding in this account has remained unrecovered for over two years is sufficient to indicate that there were no chance of recovering the amounts. If the firm had been traceable, the appellant would not have allowed such a large amount to remain unrecovered. It was in the interest of the appellant to get the amount recovered from the party instead of claiming it as bad debt. It is to be noted that an assessee is the best judge to decide whether a particular debt is likely to be recovered or not. If in the given circumstances a reasonably prudent businessman comes to a conclusion that the debt due to him from a particular debtor is wholly or partly irrecoverable, the decision should be acceptable for allowing the claim for bad debt under the Income-tax Act. In deciding whether the decision of the prudent businessman should be accepted or not the concept of commercial insolvency cannot be imported into a consideration of the question whether and under what circumstances a debt becomes bad. [Devi Films Ltd. v. CIT [1963] 49 ITR 874 (Mad)]. It has also been held in this case that 'the Department cannot insist on demonstrative proof which is infallible 'before the claim for bad debt can be allowed. What is required is an honest judgment on the part of the assessee at the time when he makes the write-off in the light of the events up to that stage and not in the light of later happenings. Although it has been held that that 'in order to determine the question whether the assessee could have believed that the debt was bad on particular date, his subsequent conduct in treating the debtor as solvent and sound would be relevant and admissible', the ITO has not established in the present case that the appellant had renewed his business connection with the party. Thus, even from the point of view of the subsequent conduct of the appellant the decision taken in writing off the amount in the present assessment year, cannot be questioned. The debt is irrecoverable when it becomes patent that the debtor has no means to pay or he has absconded and the debt cannot be recovered. If the assessee honestly feels convinced that the financial position of the debtor is so precarious and shaky, that it would be impossible to collect any money from him, he is justified in claiming it as a bad debt. In the light of the above decision it cannot be said that it was necessary for the appellant to establish before claiming the dues as bad debts, that the firm was closed." 7. Although in general an assessee is entitled to wait till the period of limitation has run out, a debt may become irrecoverable when there is still limitation to enforce payment. If the assessee had no reasonable expectation of recovering the debt, at the time he wrote it off, the claim cannot be disputed merely because the period of limitation was not over. Since the assessee is the best judge in deciding as to when he ceases to have any chance of recovering the dues his decision to claim it as bad debt in a particular year should not be normally challenged unless the facts are otherwise. In the present case since it is not the ITO's case that in the assessment year under reference there could have been any chance of recovering the amount from the party it cannot be said that the claim for bad debts was premature in the present assessment year. In the circumstances, the ITO was not justified in disallowing the claim for bad debt of Rs. 47,659. The same is, therefore, deleted. 8. As regards the amount of Rs. 4,546 due from M/s. Bamundia Coal Co. Ltd., the ITO has made the disallowance on the simple ground that the ex parte decree was passed on 16th November, 1970, but the Ordinance regarding nationalisation of the collieries was issued in October, 1971, and that the appellant could have very well taken steps against the debtor to execute the decree which he has not done. This claim is also disallowed by the ITO, being premature. 9. Although it is true that the Nationalisation Ordinance was issued nearly one year after the decree was issued by the court in favour of the appellant, the position of the accounts of the party with the appellant indicates that the debt had remained unrecovered for more than one year and the financial position of the company was not such as could give any hope to unsecured creditors, of recovering the amounts. The ratio of the decision referred to above would apply in judging the validity of this claim also. The failure of the party to respond the summons issued by the court in the suit filed by the appellant are sufficient to indicate that the party had nothing to lose by allowing the ex parte decree to be issued by the court against him. This attitude can be taken by a debtor when he is sure that he is not to lose anything by his conduct, in view of his financial difficulties. In the circumstances, there is no reason to hold that the appellant's claim for bad debts was premature or that the appellant should have taken steps to execute the court decree. In the circumstances, the disallowance made by the ITO cannot be sustained. The same is deleted, and the appellant gets a relief of Rs. 4,556, 10. As regards M/s. Vijay Foundry Pvt. Ltd., the ITO had made this disallowance as he found that the receiver was appointed and the appellant did not attempt to recover his dues from the receiver on the strength of the court's decree. The ITO has considered the claim as premature. 11. In this case also the court had issued an ex parte decree in favour of the appellant for the amounts due from that party. The court's decree was issued in May, 1970, i. e., immediately before the appointment of the court receiver. The appointment of a court receiver does not ensure the recovery of the debts by the various creditors. It is not the ITO's case that the court receiver had paid the various creditors in full or even in part. The appellant has written off the amount due from this party at the end of 1970 calendar year. The assessment has been made by the ITO on 14th March, 1974. If the subsequent happenings that even after the period of over three years of the appellant writting off the dues, the court receiver has not paid any amount to the creditors are taken into consideration, it cannot be said that the appellant was rather hasty in treating the amount as a bad debt in the present assessment year. The ratio of the decision referred to above will apply to the present claim also. In the circumstances the disallowance of bad debts of Rs. 7,272 cannot be upheld and the same is deleted. The appellant gets a relief of Rs. 7,272 on this count. 12. There was a further appeal before the Tribunal. Before the Tribunal the assessee produced a letter dated 21st September, 1976. That was a letter written by the advocate to the assessee. The letter is as follows: "We have considered the rival submissions of the parties and are of the view that the submissions made on behalf of the Revenue are well founded and should be accepted. It appears to us that the AAC was influenced by the fact that the assessee was not in a position to execute the decrees against the aforesaid three parties. However, in deciding the assessed claim for deduction of bad debts written off, we have to find out whether the assessee has lost the last ray of hope of recovering the debts from the aforesaid three parties. In our opinion, in view of the aforesaid letter dated September 21, 1976, of the assessee's advocate, it is difficult to hold that the assessee has lost the last ray of hope of recovering outstanding dues from the aforesaid three parties. On the contrary, it clearly shows that the assessee is still pursuing the matter and is trying to recover the outstanding dues from the aforesaid three parties. In this view of the matter, we are of opinion that the AAC was not justified in accepting the assessee's claim for deduction of Rs. 59,447. We, therefore, set aside the order of the AAC on this point and restore that of the ITO." 14. The assessee sought to raise certain questions for reference to this court. As the Tribunal refused to refer any question of law to this court the assessee made an application under Section 256(2) of the I.T. Act, 1961, and as directed by this court the Tribunal has referred the question to this court as indicated before. 15. Before we consider the rival contentions we may notice that under the Indian I.T. Act, 1922, under Section 10(2)(xi), bad and doubtful debts due to the assessee in respect of that part of the business, profession or vocation was allowed to be deducted. There was a slight change in the phraseology used in the I.T. Act, 1961, under which this case is governed. This position is now dealt within Section 36(1)(vii). Under that provision subject to the provisions of Sub-section (2) of Section 36, " the amount of any debt or part thereof, which is established to have become bad debt in the previous year " is entitled to deduction. It appears to us that though there has been a slight alteration in the phraseology used on this aspect of the matter, there has not been any substantial alteration in the situation. This view is corroborated by the decision of the Gujarat High Court in the case of Vithaldas H. Dhanjibhai Bardanwala v. CIT [1981] 130 ITR 05, where the Gujarat High Court has referred to the Twelfth Report of the Law Commission of India on the working of the Indian I.T. Act, 1922, and the attention of the Gujarat High Court was drawn to the Notes on Clauses as mentioned in the said report. While referring to the Notes on Clauses No. 36 of the Report, the court observed as follows (pp. 110-111 of 130 ITR): "'Instead of the words" bad and doubtful debts " (as mentioned in the opening lines of the existing Section 10(2)(xi), the words, " debts or parts thereof that are established to have become bad debts " have been used. The word "doubtful" is unnecessary and does not add anything to what is conveyed by " bad " .' 16. It was, therefore, submitted that according to the Law Commission's Report, the omission of the word 'doubtful' after the word 'bad and' in the then proposed new Act of 1961, was really of no consequence as the term ' bad debt' would include even a doubtful debt. Our attention was also invited to a copy of instruction No, 370 (Circular letter No. F. No. 205/ 15/71, dated January 13, 1972, issued by the Secretary, Central Board of Direct Taxes, Government of India, New Delhi). The said circular was with reference to the provisions of bad debt allowance in the hands of assessees who had sold goods to sick textile mills. While dealing with the aforesaid subject, the said circular referred to the provisions for bad and doubtful debts as made in Section 10(2)(xi) of the 1922 Act and the similar provision made in Section 36(1)(vii) of the 1961 Act. The circular on this aspect observed as under : 'The Law Commission had replaced the words "bad and doubtful debts " occurring in Section 10(2)(xi) of the Indian I.T. Act, 1922, by the words "debts or parts thereof that are established to have become bad debts " as the Commission was of the view that the word " doubtful" was unnecessary and did not add anything to what was covered by a word "bad". It is, therefore, obvious that there was no intention to reduce the scope of the earlier provisions contained in Section 10(2)(xi) of the Indian I.T. Act, 1922; it is considered that the provision in Section 36(1)(vii) also covered doubtful debts.' " 17. The question whether a particular debt is considered to be bad or irrecoverable must be viewed on the facts and circumstances prevailing in the relevant assessment year. This view is corroborated by the observations of Rowlatt J. in the case of Anderton and Halstead Ltd. v. Birrell [1931] 16 TC 200 (KB), where at p. 208 of the report, Rowlatt J. observed as follows : " The question for me is whether there was any evidence on which they could find in favour of the Crown on the whole matter. Now what has happened is this; the Surveyor has made these additional assessments simply because it has come to his knowledge, as stated in paragraph 8 of the case, that in the years since the two successive writings-down of this debt were allowed, the Appellants have permitted the debtors to increase their indebtedness to them while they reduced that of other creditors. The finding of the Commissioners on the appeal was that they were not satisfied that the debt or part thereof had been proved to be a bad debt within the meaning of Rule 3(i) of Cases I and II. In my judgment the Commissioners have not considered the right question, and there was no evidence which would have supported the decision for the inspector if they had. Rule 3 is as follows : ' In computing the amount of the profits or gains to be charged, no sum shall be deducted in respect of, and then after a list, '(i) any debts, except bad debts proved to be such to the satisfaction of the Commis-missioners and doubtful debts to the extent that they are respectively estimated to be bad '. What the statute requires, therefore, is an estimate to what extent a debt is bad, and this is for the purpose of a profit and loss account. Such an estimate is not a prophecy to be judged as to its truth by after events, but a valuation of an asset de praesenti upon an uncertain future to be judged as to its soundness as an estimate upon the then facts and probabilities. It is overthrown as an estimate in 1923 and 1924 by coming to the conclusion, as the Commissioners have done, that in 1930 it had not been proved that the debts were to any extent bad. Supposing, however, instead of making an irrelevant pronouncement, the Commissioners had addressed themselves to the true points, namely, the criticism of the estimate as in 1923 and 1924, what material had they before them to justify, first the intervention at all of the inspector on the ground of a ' discovery', and, secondly, their own action in upholding the assessment made in pursuance of that intervention? The only way, I think, in which it could be put, would be that the subsequent growth of the indebtedness indicated that there must have been some fact in 1923 and 1924, which (a) was not taken into account in the estimate, and (b) would have made the estimate as an estimate in 1922 and 1923 higher. It may indicate that the appellants in 1923 and 1924 were willing to contemplate that the debt should or might increase, but I think it is merely guesswork under the circumstances of this case to infer that that was because there was then reason to think the existing debt good. Perhaps it may be said, loosely, that people who act as the appellants have done, do not deserve to be allowed depreciation, and that is really the only basis on which it seems to me that the reconsideration of the estimate can be explained, but that is not a justification for these additional assessments." 18. There the assessee-company wrote off, partly in its accounts for 1921 and partly in its accounts for 1922, a debt due from a second company in which it held a majority of the shares. After discussion with the inspector of taxes and the company's auditors the whole of the amount written off in 1921 and part of the amount written off in 1922 were allowed as deduc- tions in computing the company's profits for income-tax purposes as representing the amounts of the debt which at the time were estimated to be bad. The assessee-company continued, after 1922, to trade with the debtor-company and extended it further and increasing credit while its indebtedness to other creditors diminished. Having regard to these facts the inspector in 1929 submitted additional assessments to neutralise the effect of the deductions allowed in computing the profits and the additional assessments were confirmed on appeal by the General Commissioners who held that no part of the. debt in question had been proved to be bad. It was held by Mr. Justice Rowlatt that there was no evidence that the deductions were wrongly allowed by reference to the circumstances at the time of allowance and that the additional assessments were not, therefore, justified. 19. It is, however, important to bear in mind whether in the particular facts and circumstances a debt could reasonably be allowed as deduction having been considered by the assessee to be bad debt or not, is essentially a question of fact. In the case of CIT v. Sir S.M. Chitnavis [1932] 2 Comp Cas 464, 471; AIR 1932 PC 178 at 181; 59 Indian Appeals 290, the Judicial Committee interpreting Section 24 of the Indian I.T. Act, 1922, observed as follows: 20. The Supreme Court in the case of Bank of Bihar Ltd. v. CIT , referred to the aforesaid observations. There the Supreme Court held that if a debt had become bad, subsequent amalgamation of that debt with other debts due from the same debtor which had not become bad could not revive the bad debts so as to enable the creditor to write off as a bad debt in a later year. The Supreme Court also reiterated that the question whether a debt was bad was one of fact and if there was some evidence to justify the conclusion of the Tribunal, it was not open to the High Court in a reference under Section 66 of the Indian I.T. Act, 1922, to reappreciate the evidence. 21. In the case of Associated Banking Corporation oj India Ltd. v. CIV , the Supreme Court reiterated that it was for the ITO to ascertain what debts had become bad or doubtful in the year of account. There, the Supreme Court referred to the observations of the Judicial Committee in Chitnavis' case [1932] 2 Comp Cas 464 (PC), and the Supreme Court noted that under the I.T. Act, 1961, by Section 36(1)(vii) the amount of any debt or part thereof which was established to have become a bad debt in the previous year had to be allowed in computing the income under Section 28; but that allowance was subject to Sub-section (2) which provided in so far as it was material that in making any deduction for a bad debt or a part thereof certain provisions mentioned in Sub-section (2) had to be established. Referring to such provisions, the Supreme Court noted that the material clause had been wholly redrafted and the Legislature had done it intentionally. It appears to us that in imposing certain conditions the Legislature had intended different intention. But about the meaning of bad and doubtful debts or debt which had to be established to have become bad, there was no change of any purpose in the different languages used by the two different sections. 22. From the various decisions which were cited and which we shall presently note, it appears to us that both under the 1922 Act as well as under the 1961 Act an assessee is entitled to the deduction in respect of any debts, if it could be reasonably established, to the satisfaction of the ITO, that it was incapable of recovery, considered from a business and practical, point of view, and that position must be judged from the background of the events prevailing in the relevant assessment year. Subsequent events would not alter the position. 23. Emphasis was laid in view of a certain observation that an entry made by the assessee was prima facie evidence of the fact that an assessee had considered a debt to be bad and unless it was demonstratively established by the Revenue that the entry was not correct, then the prima facie evidence should be taken as conclusive. It is true that the entry made by the assessee in his books is prima facie evidence. But it has also to be borne in mind that the section requires that the assessee should establish that the debt had become bad. Therefore, the prima facie evidence should be considered objectively by the revenue authorities to find out if any other view or alternative or contrary view is possible. In this connection, we may refer to the observations of the Supreme Court in the case of Associated Banking Corporation of India Ltd. v. CIT , where at p. 10 of the report, the Supreme Court observed as under: " But this does not mean that an assessee who chooses not to post an entry in the books of account about bad or doubtful debts places himself in a better position than an assessee who has actually posted entries writing off amounts as irrecoverable in his books of account. On the materials placed before him, it is always open to the Income-tax Officer to come to the conclusion that the fact that the assessee has not chosen to post an entry is consistent with the circumstances that no part of the debt due to him in the year of account has become bad or doubtful and, there- fore, irrecoverable, and on that account to disallow the claim which may be made at the hearing that some or all debts had become bad or doubtful. Even when no entry has been posted in the books of account, the question is one of power to be exercised on the facts and circumstances on the record by the Income-tax Officer to allow deductions in the computation of profits and gains. If the Income-tax Officer estimates certain debts to be irrecoverable, it would be within his power under Section 10(2)(xi) to allow the same in computing the profits. That power is only restricted in one direction, namely, that where the assessee has posted an entry or entries in the books of account the amount to be estimated as irrecoverable is not to exceed the amount actually written off as irrecoverable by the assessee. " 24. Reference was made to certain observations where it has been observed that a debt could not be considered to be bad debt until the last ray of hope had been established. It has also been observed by some Calcutta decisions, to which we shall presently refer, even slender hope is considered to be good enough not to make a debt bad. In our opinion, there is not much conflict in these expressions used. The whole question must be looked at from a practical and business point of view. But the action of the assessee in treating an entry to be bad would not by itself be conclusive. It must be bad by certain objective facts which a reasonable man should accept reasonably that the debt had become irrecoverable or bad or practically impossible of recovery. 25. In this connection, reference was made to the meaning of the expression "irrecoverable" in Webster's Third New International Dictionary, p. 1195, whereas one of the meanings of "irrecoverable" Webster indicated "not capable of being recovered ". Therefore, it was submitted that the assessee must objectively consider the debt to be not recoverable from a practical point of view. 26. The Privy Council in the case of F. E. Dinshaw v. CIT [1934] 2 ITR 319, observed that it was not necessary to constitute moneys due by a joint stock company, a bad debt or a business loss to the creditor, that the company should be actually wound up or have ceased to be a going concern. Whether the debt is wholly or partly and to what extent, bad or irrecoverable was in every case, and whether the debtor was a human being or a joint stock company or other entity, a question of fact to be decided by the appropriate Tribunal upon a consideration of the relevant facts of that case. 27. The Full Bench of the Lahore High Court in the case of B.C.G.A. (Punjab) Ltd. v. CIT [1937] 5 ITR 279, had the occasion to consider this and there one of the questions referred before the court was question No. 5 which was as follows : " The assessee having an amount due from an insolvent estate, as to the badness of which the only evidence was that petty realisations were received during the prior year and the subsequent year, was it impossible in law for the Assistant Commissioner to find that badness thereof did not eventuate in the year of amount ?" 28. There, the Full Bench, after setting out the facts, observed as follows : " So long as there is any ray of hope left to recover a debt, however dim it may be, and so long as a debt is in the process of realization, it cannot be said that it has become irrecoverable." 29. As indicated above, Din Mohammad J. was emphasising two tests, viz , that in order to become a bad debt there should not be any ray of hope left and, secondly, a debt, however, must not be in the process of realisation. In other words, it was pointed out by Din Mohammad J., emphasising that, if a debt was in the process of realization or if there is any ray of hope left, then it could not be considered to have become a bad debt. It is true that if a debt is in the process of realisation and the assessee has not exhausted all reasonable steps for realisation, then a debt could not be considered to have become bad. But it does not mean that the assessee should wait until the period of limitation to consider a debt to be bad debt. In our opinion, what Din Mohammad J. observed was that the last ray of hope was a hope to be considered from a practical point of view of a businessman, having regard to the circumstances. 30. Our attention was also drawn to the decision of the Division Bench of this court in the case of Hongkong and Shanghai Banking Corporation v. CIT [1955] 28 ITR 199, where the words "as the Income-tax Officer may estimate to be irrecoverable " in Section 10(2)(xi) of the Indian I.T. Act, 1922, governed not only the sum referred to in the phrase immediately preceding, viz., " loans made in the ordinary course of business ", but also the sum referred to in the earlier phrase, viz , " bad and doubtful debts due to the assessee ". Consequently, both in the case of a debt and in the case of a loan, the claim for deduction could be allowed only if, and to the extent, the ITO estimated it to be irrecoverable. The court noted that the expression " bad and doubtful debts " in Section 10(2)(xi) did not contemplate two kinds of debts, but referred to the same class of debt, namely, a debt which was bad and doubtful, i.e., a debt, of which the chance of recovery was nil or slender. A doubtful debt did not mean a debt which could not be held to be irrecoverable. Such a debt might also be held to be irrecoverable wholly or in part. 31. On behalf of the assessee it was stated that the Calcutta High Court was taking a view contrary to the view of the Lahore High Court Full Bench because where there was even slender hope, a debt could be considered in appropriate cases by the Calcutta High Court to be bad and doubt- ful debt; according to the Lahore High Court, in order to be a bad and doubtful debt, the last ray of hope must be extinguished. As we have mentioned before, there is not much difference between the two different expressions used. It appears to us, what the learned judges wanted to convey was that for all practical purposes, a debt could be, from a business point of view, reasonably considered to be irrecoverable. The Calcutta High Court also emphasised, as we have indicated before, the fact that it cannot be said that the assessee's claim to a particular debt to have become bad and doubtful was conclusive, unless it was established that such view was bona fide. 32. In the case of Jadavji Narsidas & Co. v. CIT [1963] 47 ITR 411, the Division Bench of the Bombay High Court had occasion to consider the decision of the Calcutta High Court in the case of Hongkong and Shanghai Banking Corporation [1955] 28 ITR 199. The Bombay High Court had observed that when a "bad debt" was claimed as an allowance by the assessee the burden was on him to show that he had no reasonable expectation of recovering it at the time he wrote it off or that there was no hope at all on which he could rely for recovering the amount from his debtor at the time he wrote oS the debt. There the assessee wrote off a sum of Rs. 2,23,162 and claimed it as a bad debt in the Samvat year 2004 (1947-48), but it appeared that he had accepted hundies from the debtor which were to mature after the close of the year 2004 and had also filed a suit against the debtor for recovering this amount after the close of the year 2004 and had recovered a small portion of the amount from the debtor. There, it was held that the sum of Rs. 2,23,162 could not be treated as having become a bad debt in 2004 and the claim for allowance of the sum as a bad debt in that year was rightly disallowed by the I.T. authorities. 33. Thereafter, referring to the decision of the Bombay High Court in the case of Mukundlal Bansilal (Raja Bahadur) v. CIT [1952] 22 ITR 94, where the Bombay High Court had held that a debt became a bad debt when the creditor had no reasonable expectation of recovering it from the debtor or when there was no ray of hope at all on which the creditor could rely for recovering the amount from his debtor, and also after referring to the decision of the Calcutta High Court in the case of Hongkong and Shanghai Banking Corporation [1955] 28 ITR 199, referred to hereinbefore, the Division Bench of'the Bombay High Court observed that the principle of law stated by the Calcutta High Court and that stated by the Bombay High Court were not in any way different. The Bombay High Court reiterated, in our opinion, with great respect corrretly, that " bad debt" was claimed as an allowance by the assessee and, therefore, the burden was on him to show that he had no reasonable expectation of recovering it at the time he wrote it off or that there was no ray of hope at all on which he could rely for recovering the amount from his debtor at the time he wrote off the debt. 34. It is true that the assessee's conduct in writing off a debt prima facie was good evidence provided, it must be based on certain objective factors on which such decision could be taken. 35. We must, however, observe that in the case of Raja Bahadur Mukundlal Bansilal v. C1T [1952] 22 ITR 94 (Bom), Chagla C.J. observed that a loan became irrecoverable or a debt became a bad debt when the creditor had no reasonable expectation of recovering it from the debtor or when there was no " ray of hope at all " on which the creditor could rely for recovering the amount from his debtor. 36. In the case of Devi Films Ltd. v. CIT [1963] 49 ITR 874, the Division Bench of the Madras High Court had held that the expression "bad and doubtful debt " was descriptive of a debt which could not reasonably be expected to be realised It was not sufficient for the assessee to say that he became pessimistic about the prospects of recovery of the debt in question. He must feel honestly convinced that the financial position of the debtor was so precarious and shaky that it would be impossible to collect any money from him. The Madras High Court reiterated that there was no acid test to ascertain whether a debt had become bad and doubtful, and if so, when. The question was really one of fact depending upon congeries of facts and diverse circumstances bearing on the debtor's pecuniary position, his commitments and obligations, and the natural apprehensions that would be caused in the minds of the creditors regarding recovery of their dues. While the onus of establishing that the write-off of the alleged bad debt was proper and permissible in the circumstances of the case was upon the assessee, the Department could not insist on demonstrative proof which was infallible. It could not be laid down as an inflexible rule of law that a waiver by a creditor of a portion of his debt would amount to proof positive of the debt, or any portion thereof, having become bad and doubtful. What was required was an honest judgment on the part of the assessee at the time when he made the decision to write off in the light of events up to that stage and not in the light of later happenings. 37. Our attention was also drawn to certain observations of the Bombay High Court in the case of Jethabhai Hirji and Jethabhai Ramdas v. CIT [1979] 120 ITR 792, where the Bombay High Court observed that as to when a debt became bad depended upon the circumstances and the materials brought on record and there was no general rule or universal test which would apply to all cases and in all circumstances. The Department could not insist on demonstrative proof of the fact which should satisfy the test of infallibility. All that was required was an honest judgment on the part of the assessee at the time when he made the writeoff. A debt could not be written off as bad and irrecoverable if on the material available it could be shown that there was a possibility of recovering the same. That a company had not yet gone into liquidation would not by itself establish such a possibility. That the assessee wrote off the debt at a particular point of time in a particular year was not conclusive of the matter, but was not wholly or totally irrelevant. That would be a material circumstance. The Bombay High Court emphasised that it was also not possible to agree with the conclusion of the Tribunal that proceeding with the suit, obtaining the decree, giving notices for winding up and asking the Registrar of Companies to prosecute the directors of New Era would have to be regarded as vigorous recovery proceedings in respect of the amount due to the assessee or that all these materials would indicate that it had not abandoned all hopes of recovery. 38. Our attention was also drawn to the decision in the case of Nanak Chand Mamraj Mal v. CIT [1964] 52 ITR 410 (Punj), where a debtor has been adjudicated an insolvent and his estate is in the hands of the receiver. It was held that it would not be proper to hold that the debt or any part of it had become bad until the receiver has completed his work. A debtor was adjudicated an insolvent in 1938 and the assessee received a sum of Rs. 13,000 as a first dividend. No further sum was received until 1950, when, as a result of a litigation, the assessee received another sum of Rs. 2,195. In the year 1949-50 the assessee claimed a sum of Rs. 1,00,000 as a bad debt. The Tribunal held that the debt had become irrecoverable soon after the year 1941, on the ground that, subsequent to the payment of the first dividend in 1941, there was no visible asset belonging to the insolvent except a sum of Rs. 10,000 regarding which there was a dispute between the Punjab National Bank Ltd. and tbe official receiver, and that whichever way the dispute was settled, the assessee could never hope to recover more than Rs. 2,500 and from this concluded that the bulk of the debt had become irrecoverable soon after 1941, and, in any case, long before the relevant accounting year 1948-49; it was held that there was no material to justify the finding of the Tribunal that the bulk of the debt had become irrecoverable long before 1948-49, as the receiver completed the winding-up only in 1950. 39. It appears, from the aforesaid decisions, the following principles emerge --(a) Whether a debt could be considered to be bad debt or not must depend on the facts and circumstances of each case, (b) If a fact finding Tribunal after considering all the relevant facts has arrived at a conclusion that the assessee's claim that a debt was to be considered to be bad was either good or bad that conclusion should not be interfered with in a reference by the High Court, (c) Thirdly, it appears that the question must be looked from the practical point of view whether the assessee considered the chance from business point of view that debt had become irrecoverable in that sense and not being capable of from a practical point of view to realise the debt and as such bad. It appears that though the assessee's entry is prima facie evidence, that is not conclusive unless such entry is justified. The onus, however, is on the assessee to establish that the debt has become bad in the relevant year. 40. In this case, it appears that up to few months until the closing of the relevant assessment year, i.e., up to 31st of December, 1970, in respect of first debt of 20th April, 1970, second debt of 2nd of November, 1970 and third debt of 3rd of May, 1970, the assessee had not considered these to be bad and proceeded with the application and obtained ex parte decrees. The fact that the decrees were ex parte does not establish either way. A debtor might have been an insolvent or a debtor might have tried to avoid contesting decrees, because there was no defence. 41. From the letter dated September 1, 1976, it appears that in the relevant assessment year steps were taken for realisation of the decrees and that the assessee had not given up his claim by taking steps in respect of those decrees. It also appears that nothing was found to be seen that the assessee took any step to prefer any claim before the receiver or before the appropriate authority appointed under nationalisation of the coal mines. What other steps the assessee took in finding out the judgment-debtor in Suit No. 26 of 1969 in respect of the first debt, viz., Sankar Coal Company, has also not been indicated by the assessee to the ITO. If on these facts the Tribunal, having considered also the view of the AAC, came to the conclusion that-the assessee's claim that these debts could be considered to be bad and irrecoverable was not established, we cannot say that the Tribunal has acted without relevant materials or on wrong principles of law. It may be that on these facts or some of these facts and some others, the Tribunal might have come to the conclusion that the assessee was justified but having regard to the findings of the Tribunal we are not ia a position to say that the findings were perverse or based on wrong principles of law or ignored any relevant piece of evidence. If that is the position, then, in our opinion, the Tribunal had not acted wrongly. If that is the position then the question must be answered in the affirmative and in favour of the Revenue. 42. In the particular facts and circumstances of the case each party will pay and bear its own costs. Suhas Chandra Sen, J. 43. I agree.

Author: S Mukharji

V.N. Rajan & Co. vs Commissioner Of Income-Tax on 9 February, 1982

Calcutta High Court

In the Central Information Commission  at New Delhi File No: CIC/AD/C/2011/000616 Date  of Hearing :  September 29, 2011 Date of Decision :  September 29, 2011 Parties: Applicant Shri Parshuram C/o Pawan Cement Store Nawada Chowk Ara Bhojpur District Bihar The Applicant was heard through audio Respondents East Central Railway Divisional Railway Manager's Office Mughalsarai  Division Mughalsarai Represented by : Shri S.C.Srivastava, CPIO & Sr.DPO Information Commissioner :   Mrs. Annapurna Dixit ___________________________________________________________________ In the Central Information Commission  at New Delhi File No: CIC/AD/C/2011/000616 ORDER Background 1. The Applicant filed an RTI Application dt.30.8.10 with the PIO, DRM Office, East Central Railway,  Mughalsarai seeking information about one Shri Tarakeshwar Prasad, retired Guard including copy of  his service book, and details of his family etc.  Shri S.C.Srivastava, PIO replied on 14.9.10 denying  the information u/s8(1)(j), as according to him it belongs to a third   party.   He also stated that no  information can be provided without some additional details such as date of retirement and PPO  number of  Shri Prasad. Not satisfied with the reply, the Applicant filed an appeal dt.11.10.10 with the  Appellate Authority reiterating his request for the information and on not receiving any further  reply  from the FAA,  he filed a complaint dt.Nil before CIC. Decision 2. During the hearing, the Respondent reiterated   that it will not be possible to locate  the information on  the basis of only a name   and that since  every year 600 to 700 employees retire, locating the file  from those hundreds of files, the file pertaining to Shri Prasad will be impossible.  He added that if the  Appellant informs him the date of retirement as well as the PPO number of Shri Tarakeshwar Prasad,  the information can  be provided. 3. The Commission after hearing the submission by the Respondents,  directs the Appellant to provide  the details as sought by the PIO within 5 days of receipt of this Order and the PIO   to provide  complete information after invoking Sec.10(1) to sever those details that are personal in nature u/s  8(1)(j) of the RTI Act, to the Appellant within 15 days of receiving the details from the Appellant. 4. The appeal is disposed of with the above directions.  (Annapurna Dixit) Information Commissioner Authenticated true copy  (G.Subramanian) Deputy Registrar Cc: 1. Shri Parshuram C/o Pawan Cement Store Nawada Chowk Ara Bhojpur District Bihar 2. The Public Information Officer East Central Railway Divisional Railway Manager's Office Mughalsarai  Division Mughalsarai 3. The Appellate Authority East Central Railway Divisional Railway Manager's Office Mughalsarai  Division Mughalsarai 4. Officer in charge, NIC

Mr.Parshuram Prasad vs Ministry Of Railways on 29 September, 2011

Central Information Commission

JUDGMENT D.H. Waghela, J. 1. The appeal under Section 173 of the Motor Vehicles Act, 1988 (for short, the Act) seeks to challenge order dated 18.06.2007 of M.A.C.T., Bhuj in M.A.C.P. No.556 of 2004 only on the ground that the claim under Section 163A of the Act could not have been allowed in favour of the heirs of the driver of sole vehicle involved in the accident. The appeal was restricted to the liability upto Rs. 2,82,834/- out of the award of Rs. 3,82,834/- (with interest and cost) in view of the fact that, admittedly, compensation of Rs. 1,00,000/- was covered by the personal accident insurance of the driver. The facts about which there is no controversy are that, on 05.06.2004, the deceased, driving scooter No. GJ-7-P-5487, dashed with the parapet of a bridge near village Anandsar in Kachchh district. The deceased aged 42 was claimed to be earning Rs. 40,000/- and his parents, widow and children claimed compensation under Section 163A of the Act. The scooter driven by the deceased was owned by respondent No.7 and insured by the appellant. Learned counsel Mr. Sunil B. Parikh, appearing for the appellant, vehemently argued that compensation could not legally be claimed by the heirs of the victim of the accident, who was himself solely responsible for the accident. He relied upon the Division Bench judgment dated 13.07.2005 of this Court in National Insurance Co. v. Rasilaben Shantilal Yadav Wd/o Late Shantilal Yadav and Ors. First Appeal No. 3354 of 2000 wherein the deceased was going on a scooter which was hit by a tanker which was not traceable. The Court observed that the claim should have been made against the driver, owner and insurance company of the tanker and in absence of their particulars, the claimants could claim compensation from the Collector of the district under Section 163 of the Act as a Shit and run case. 2. Having regard to the language and purport of the provisions of Section 163A, the owner of the motor vehicle or the authorised insurer has to be held liable to pay compensation in case of death or permanent disablement due to accident arising out of the use of motor vehicle. Therefore, the present case is apparently covered by the terms of Section 163A of the Act. Recently, this Court has, in First Appeal No. 2042 of 2007 and allied matters, on 16.01.2008, analyzed the scheme of the provisions and, after referring to and relying upon a series of relevant judgments of this Court and the Apex Court, held as under: 9. The scheme of the provisions relevant for interpretation and application of section 163A is fairly clear, although not very simple. Section 163A is engrafted into Chapter XI entitled "Insurance Of Motor Vehicles Against Third Party Risks" and clearly provides for liability of the insurer to pay compensation, as indicated in the Second Schedule, notwithstanding anything contained in the Act or in any other law or instrument having force of law. Simply put, it creates an absolute liability of the owner of the motor vehicle as well as the authorised insurer in case of death or permanent disablement due to accident arising out of the use of motor vehicle. And, self-contained code as it is held to be in the liability should not depend upon or be subject to any other consideration under any other provision of law. That conclusion would be further buttressed by reading the relevant part of Sub-section (1) of Section 149 of the Act. That part, shorn of irrelevant or adjectival clauses, provides that if an award in respect of any liability required to be covered by the policy OR under the provisions of Section 163A is obtained against any person insured by the policy, the insurer shall, subject to the provisions of that section, pay to the other person entitled to the benefit of the decree, any sum not exceeding the sum assured payable thereunder, as if he were the judgment debtor. 9.1 Conjoint reading of Sections 149(1) and 163-A(1) would lead to the conclusion that liability to pay compensation under Section 163A arises directly against the authorised insurer as such and for obtaining an award in that regard so as to execute a decree as if the insurer were the judgment debtor, the provisions of Section 149 have to be complied. The fact, however, would remain that the liability under Section 163A is an independent statutory liability directly arising against the insurer. 9.2 Under the provisions of Section 146 of the Act, insurance is compulsorily required "in relation to the use of the vehicle" and the policy has to compulsorily comply with the requirements of Chapter XI which includes provisions of Section 163A. However, the provisions in Section 149(1) creating a direct duty of the insurer to satisfy awards made under Section 163A is subject to the provisions of Sub-section (2) of Section 149 which provide for notice to and defences available for the insurer. That opportunity and availability of defences, however, are again subject to Sub-sections (4) and (5) and restricted by the provisions of Sub-section (7) of Section 149. According to Sub-section (4), once a certificate of insurance has been issued, so much of the policy as purports to restrict the insurance by reference to any condition other than those in Clause (b) of Sub-section (2) shall be of no effect; provided that any liability discharged by the insurer by virtue only of Sub-section (4) shall be recoverable by the insurer from any person whose liability was discharged. That would mean, even in case of breach of specified condition as enumerated in Section 149(2), liability has to be discharged by the insurer except where the policy was void on the ground of having been obtained by non-disclosure of material fact or by misrepresentation. Even if the liability incurred by the insurer exceeds the amount for which the insurer would be liable under the policy, the insurer will have to pay, but would be entitled to recover the excess from the insured. The insurer is, by Sub-section (7), expressly prohibited from avoiding his liability towards any person entitled to the benefit of an award made under Section 163A, otherwise than in the manner provided for in Sub-section (2) of Section 149. 9.3 Thus, as clearly held in National Insurance Co. Ltd. v. Swaran Singh (supra), insurer is entitled to raise defences in terms of Section 149(2) subject to such qualifications as are laid down in that judgment. Otherwise, the scheme of compulsory insurance "in relation to the use of the vehicle" to insure against death, bodily injury or damage to any property of a third-party caused by or arising out of the use of the vehicle in a public place is wide enough to encompass "any liability" in respect of "any person". Since the requirement of even pleading any wrongful act, neglect or default of the owner or any other person is expressly excluded by Sub-section (2) of Section 163A, the question of attributing negligence to any person, in proceeding under Section 163A, cannot be allowed to arise. As held by this Court in Bajaj Allianz General Insurance Co. Ltd. v. Belaben (supra), insurer's liability under Section 163A encompasses the liability to pay compensation on the basis of "no fault principle" even in case of a driver who is alleged to be responsible for causing the accident in question. As held by another Division Bench of this Court in New India Assurance Co. Ltd. v. Muna Maya Basant (supra), by introduction of Section 163A, liability arising thereunder must now be deemed to have been covered under the statutory liability regardless of the pecuniary limit in that regard specified in the policy or premium charged. Thus, the limits of statutory liability has to be deemed to have been extended or enlarged appropriately so as to cover the liability that arises under Section 163A and, for that, extra premium is not to be charged or specific contract is not required to be entered into. These propositions of law supported by aforesaid statutory provisions and precedents binding on this court cover all the contentions of the appellants. The victim of the accident being the tort easer, pillion rider, employee of the insured or gratuitous passenger appears to be wholly irrelevant for the purposes of adjudication of a claim for compensation under Section 163A of the Act. 10. However, it was vehemently argued that very title of Chapter XI indicated that a scheme of compulsory insurance was provided against third-party risks and the title of the Second Schedule prescribed under Section 163A also provides for compensation for third-party claims which would not include the claims arising from death or injury to an employee, a driver, a pillion rider or a gratuitous passenger. The submissions in that regard were sought to be supported by the observations quoted hereinabove in Oriental Insurance Co. Ltd. v. Meena Variyal (supra), United India Insurance Co. Ltd. v. Tilak Singh (supra) and New India Assurance Co. Ltd. v. Asha Rani (supra). It was submitted that the cover of compulsory insurance provided by Chapter XI of the Act was only against third-party risks and "any person" is to be understood as "a third party", as held in the aforesaid judgments. And, as the provisions for compulsory insurance do not enjoin any statutory liability on the owner of the vehicle to get his vehicle insured for any passenger travelling in a goods vehicle, or gratuitous passenger in any other vehicle, their claim under Section 163A also need not be satisfied by the insurer. It must, however, be noted that the observations in Oriental Insurance Co. Ltd. v. Meena Variyal (supra), Dhanraj v. New India Assurance Co. Ltd. (supra), National Insurance Co. Ltd. v. Laxmi Narain Dhut (supra), and in United India Insurance Co. Ltd. v. Tilak Singh (supra), were not made with reference to the above aspect of the provisions of Section 163A of the Act; whereas the claims of compensation under Section 163A of the Act were under direct consideration of three Judge Bench of the Apex Court in National Insurance Co. Ltd. v. Swaran Singh (supra). In Meena Variyal (supra) itself it is observed that an obitur dictum of the Supreme Court is binding only in absence of a direct pronouncement on a particular question. The judgment in Laxmi Narain Dhut (supra) emphasises "rule of legislative intent". Interpretation must depend on the text and the context and the Court has to choose that interpretation which represents the true intention of the legislature. The enactment of Section 163A and amendment of Section 149(1) clearly marks a departure from the concept of insurer indemnifying the owner for the benefit and purpose of satisfying decrees obtained by third parties and breaks new ground by making the insurer directly liable to pay regardless of its liability under the policy of insurance. After the Amendment Act 54 of 1994, broadly two kinds of awards are required to be satisfied by the insurer under Section 149(1); viz. (i) "awards in respect of any such liability as is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) OR (ii)"under the provisions of Section 163A". That addition of the alternative category of liability "under the provisions of Section 163A" unequivocally makes such liability different from the liability covered by the express terms of the policy. 10.1 Even as late as in the year 2007, in Smt. Yallwwa and Others (supra), while considering the provision for "no fault liability" under Section 140, it was observed that it made the owner of the vehicle liable, but not the insurer per se. As against that, by express language of Section 163A, insurer is made directly liable per se as discussed earlier. Therefore, keeping in mind the objectives and purpose for which the provisions of Section 163A are made, and made to supersede all other provisions of law, it has to be held that the claim for compensation by a third-party cannot be defeated by an insurer of the motor vehicle out of the use of which the accident had arisen and death or permanent disablement caused, except as indicated hereinabove. It may be pertinent to reproduce as under, the observations of Justice Frankfurter of the United States Supreme Court, as quoted in Paragraph 35 of National Insurance Co. Ltd. v. Laxmi Narain Dhut(supra): 35. Legislation has an aim, it seeks to obviate some mischief, to supply an adequacy, to effect a change of policy, to formulate a plan of Government. That aim, that policy is not drawn, like nitrogen, out of the air; it is evidenced in the language of the statutes, as read in the light of other external manifestations of purpose. The observations of the Supreme Court in Mehboob Dawood Shaikh v. State of Maharashtra on application of precedent may be quoted as under: 12. ...A decision is available as a precedent only if it decides a question of law. A judgment should be understood in the light of facts of that case and no more should be read into it than what it actually says. It is neither desirable nor permissible to pick out a word or a sentence from the judgment of this Court divorced from the context of the question under consideration and treat it to be complete law decided by this Court. The judgment must be read as a whole and the observations from the judgment have to be considered in the light of the questions which were before this Court. 11. Therefore, following the judgments directly applicable in the cases under Section 163A and in view of the benevolent scheme of creating a statutory liability of the insurer, independent of the terms of policy and any other provision of law, it is held that the pleas and defences of the victim of the accident being tortfeaser, pillion rider, gratuitous passenger or employee of the insured were not available to the insurer for avoiding or defeating its liability to pay compensation in accordance with the prescribed formula. 3. In view of the above facts and discussion of law, aforesaid judgment of the Division Bench of this Court relied upon by the appellant could not be applied even as the issue squarely covered by the above observations was not raised and considered by the Court. 4. Therefore, the appeal fails and it is accordingly dismissed with no order as to costs. Civil Application does not survive in view of rejection of the appeal and accordingly, stands rejected. Rule issued in that application is discharged with no order as to costs. Learned counsel Mr. Parikh requested to continue the Ad-interim relief granted by the initial order dated 08.10.2007 for a period of six weeks, since the aforesaid judgment of this Court was proposed to be challenged in the higher forum. Accordingly, the Ad-interim relief in respect of liability under challenge of Rs. 2,82,834/- together with proportionate interest and cost shall continue to operate till 31.03.2008.

Author: D Waghela

New India Assurance Co. Ltd. vs Manishaben Mahendra @ Shanker ... on 11 February, 2008

Gujarat High Court

JUDGMENT B.N. Kirpal, J. (1) This is a regular second appeal challenging the decisions of the Courts below whereby suit filed by the respondent under Order 37 of the Civil Procedure Code was decreed in the sum of Rs. 3,340 with costs and future interest. (2) The respondent filed a suit under Order 37 claiming that the appellant herein had issued a cheque dated 22nd December, 1977 for a sum of Rs. 3,000 in favor of the respondent. This cheque was stated to have been issued for consideration. It was alleged that this cheque, when presented to the banker's, was dishonoured on 23rd December, 1977. The suit was filed on 2nd November, 1979. (3) The appellant herein was granted leave to defend. In the written statement which was filed it was contended that the cheque for Rs. 3,000 was issued by way of loan to the respondent. The case of the appellant was that he had not taken any loan from the respondent and that the suit had been filed by way of a counter-blast to arbitration proceedings which had been initiated by the appellant and which had resulted in an award being made in his favor and a decree in terms thereof being passed. (4) The trial court, on the pleadings of the (5) In support of this contention that Rs. 3,000 had been given by way of loan, the appellant herein relied on a document Ex.DW-3/1 purporting to be a receipt signed by the respondent. The respondent had not admitted the execution of this receipt. In order to prove the genuineness of the receipt the appellant herein submitted a report of the Handwriting Expert. The court sent the disputed receipt to the Central Forensic Science Laboratory. The report received from there was that the said receipt was not genuine. The trial court accepted this evidence and came to the conclusion that the appellant had not been able to prove that Rs. 3,000 had been advanced by way of loan. The trial court decided all the issues in favor of the respondent. A decree for Rs. 3,340 with costs and further interest at the rate of 6% was passed in favor of the respondent. (6) The appellant herein then filed first appeal which was dismissed by the Additional District Judge by his judgment dated 17th January, 1985. Thereafter the present second appeal has been filed in this Court. (7) It has been vehemently contended by the learned counsel for the appellant that the decision of the trial court and the lower appellate court is 205 perverse. It is submitted that the appellant herein had supplied clothes to the respondent on 22nd December, 1977 worth Rs. 3,000 and on 8th March, 1978 worth Rs. 2,309. When payment for the same was not made the appellant initiated arbitration proceedings which resulted in an award being passed against the respondent. That award was made the rule of the Court. When payment was not made, execution proceedings were initiated and a show cause notice was issued to the respondent as to why he should not be arrested. It is submitted by Mr. Rohtagi that on 2nd November, 1979, the respondent filed an application under Order 9 Rule 13 Civil Procedure Code for setting aside the ex parte decree, whereby the award was made the rule of a Court, and objections under Sections 30 and 33 of the Arbitration Act were also filed on that date. As a counter-blast to the proceedings which had been initiated by the appellant, it is contended, the respondent filed the present suit on 2nd November, 1979. It is further submitted by the learned counsel that a decree for Rs. 5,390 having been passed against the respondent and which have now been confirmed, the case of the respondent stood falsified. It may hereby mentioned that in his evidence the respondent had stated that he had given a uchanti loan of Rs. 6,000 to the appellant herein about 15 days prior to 22nd December, 1977. The respondent then wanted the repayment of this loan and the appellant is alleged to have given cloth worth Rs. 3,000 to the respondent Along with a cheque for Rs, 3,000. When the cheque was dishonoured, the respondent expected that the appellant will pay the money but when he failed to do so, the present suit was filed. (8) Under Section 100 of the Civil Procedure Code, a second appeal is maintainable only if the case involves a substantial question of law. In the present case, the decisions of the courts below do not involve any question of law at all and certainly not a substantial question of law. Both the courts have found as a fact that the cheque for Rs. 3,000 was not given by way of loan by the appellant to the respondent. Even if it be assumed that this decision, on facts, is incorrect, nevertheless this will only mean that there has been an error of fact and if it was open to the appellant to persuade to this court to go into the facts, then he might have succeeded. The decisions of the courts below do not involve any substantial question of law at all. It will be seen that the case of the appellant as set out in the written statement was that Rs. 3,000 was given by way of loan to the respondent. Accordingly, issue was framed as to whether cheque for Rs, 3,000 was given by way of loan. This issue involved investigation of facts. The decision on the facts was that no such loan was given. The appellant herein never protested against the said issue being framed nor was there any contention raised regarding the onus of proof. Once the case set up by the appellant was not accepted, then the obvious conclusion which followed there from was that the cheque must have been issued for consideration and the same having been dishonoured, the respondent was entitled to a decree in his favor. Neither in the written statement nor in the grounds of appeal before the lower appellate court nor at the time of arguments before the lower appellant court were the contentions, which are sought to be raised before me by Mr. Rohtagi with regard to the arbitration award, ever raised. It is not open to the learned counsel for the appellant, therefore, to say that the decision of the trial court and the lower appellate court is perverse because it has ignored the effect of the decree passed by the subordinate courts making the award in favor of the appellant a rule of the court. If such a plea had been raised and the same not considered by the courts below then possibly the court would have been justified in interfering in this case. No such plea having been raised either in the trial court or in the lower appellate court, it cannot be permitted to be raised in the second appeal for the first time. On the evidence on record, it is not possible for me to come to the conclusion that the judgments of the courts below are perverse. (9) In view of the fact that no substantial question of law arises, this appeal fails and is dismissed. The parties will, however, bear their own. costs.

Author: B Kirpal

Kartar Singh And Ors. vs Harbans Singh on 24 March, 1987

Delhi High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM OP No. 35665 of 2001(U) 1. P.A.SHAJAHAN ... Petitioner Vs 1. MADAPPALLY GRAMA PANCHAYAT ... Respondent For Petitioner :SRI.T.H.ABDUL AZEEZ For Respondent :SRI.LAL GEORGE The Hon'ble MR. Justice PIUS C.KURIAKOSE Dated :01/01/2008 O R D E R PIUS C. KURIAKOSE, J. ---------------------------------- O.P. NO. 35665 of 2001 ---------------------------------- Dated this the 1st day of January , 2008 JUDGMENT Under challenge in this writ petition under Article 226 of the Constitution is Ext.P1 notice issued by the respondent Panchayat directing the petitioner to demolish a building constructed by him by the side of the Kanjiramuttu- Karikandam road within the area of the Madappally Grama Panchayat. The road undoubtedly is a public road for the purpose of Section 2(xxxv) of the Panchayat Raj Act. But the question is whether the said road qualifies as a notified public road for the purpose of Section 220b of the Act. 2. I do not propose to decide the question finally. The petitioner has submitted Ext.P2 appeal against Ext.P1 before the council of the Panchayat. I dispose of the writ petition directing the Panchayat to take up Ext.P2 appeal, hear the petitioner and dispose of Ext.P2 in accordance with law. While taking decision on Ext.P2, the Panchayat shall give due regard to the judgment of this court in Thomas Paul v. State of Kerala ( 2007 (1) KLT 267) and any other judicial precedents of binding nature. The learned counsel for the Panchayat further submits that there is likelihood of the appeal  O.P. No.35665/2001 2 having been disposed of by the Panchayat already. The learned counsel for the petitioner submits that no orders passed on the appeal have been communicated to the petitioner. If order is already passed, the Panchayat shall communicate the order to the petitioner. Till such time Ext.P2 is disposed of as directed above or orders on Ext.P2 is communicated to the petitioner, the interim direction issued by this court will continue. PIUS C. KURIAKOSE, JUDGE. dpk  O.P. No.35665/2001 3 PIUS C. KURIAKOSE, J. ----------------------------------

P.A.Shajahan vs Madappally Grama Panchayat on 1 January, 2008

Kerala High Court

?s%§'%'A .C:_.t2.o@ . Leo/0") L, zsgsw ::'3.:»-us§,§_,:.::<;1e::az;:: v:§,§,:x<;:v;+:§ mm mfg "'E"'A.Li_§ K 2. E§F\fi'.i"'. M' <1::Am§*;a;:,gx};s§1-~§ EVEIE, £{.}?:1: §s--'E!%;.§{§§%3, *9; ,4 <1; A ms}--1 z"y'A$§-~i'A,N:«;%§2, 331%; ;:.:2aK;»-:§e;;: az::.,m<;£; 55 m§;§-3, S§%.§§2AE~é€E:X§3?§'E'?°«EA 'I'A§.,g{E'§s;.¢ 1" '% 3. REMES}-£A, §;;<...: :,,;%.':*§%: Egg:%:{";£::??%:;s1f;;%§;'§. " A{";«§¥Z: §:ziA§J{§§,' " ' 52;»-mu: EE")EVAE€E§"'i'£§;¥v7¥I§"{§7iH §§'"fI~<Z»§?i§ e:>L::: M.(:.§e£},:g£,;s, _ " ..... 4* -'2?-§':'>;:$3:%;s_:S:;:.r.§§:..g%;;; '§.'42$§$;sx<§E;§e, aw :':=:E:::%':~;: :€ESi#§u?3'j3E€V§'5;§'§I{.fE§ <;::<;>., E,;"i'£)., _ :3 5;.L:'i,§'%:s<;A':§, -V 1. .' .1' :\::T;§-:§_;&;-Mas N §'§§'2?§jRAM, * ":ae§3I"é'é:_:'駧:e:'; '- g V .§e§9:s*s?{;>r«2 :5 E?«%'§_"fé§ ..._"_';P=9;»:f::i}%7;~.<f:}12<:>§3 in M%*'A N<;,f{}*?;é€ié7/2{}{}8 fikai éjffi} 4.: §?%1,:Ee: 22 Q5 <::::a::,i ' é:<,:g2'+::f§.t:£§€aiif E125: jud.g3':::31':i :;a;.1:'i a'w'2ar:'§ éiisiifrzigi: 3,:Zf%.;E{}{§8 33838611 in VM§v;?i.'§};€"'i, M37122 ";E{}{}"? 032.. 2,E§«:: fiie of iiii'; z'X{i<.£:%§;i{321;:i£ {.)i'<;é§ dzliigzr, E.-3r.E)n}, anzi i::§§§:"'§'" 3 Qg'W"5"" f{- :5 'éiqgigigflfif *§:'g?e <";,~,z,m mggzé /: 9: :2. § -3 \ I i as £9 1% I1 ?v'£F& Cfloés Q26/o'_'7" .......................... M. L» EEIICE €7L.§PJE éimri §\;3AC"!'.', Ma::1(i§*2s5 a'xx;*:1:f{i,:';1'::g 2:23 " '1<%¥<';-::i:; g:fi:ti1s~::é1''E.ji-.:;;:; '' 1:)? §'~é2S,§,51,?i3{}j « with i':':€.€:*5:s»:': '?.':"f§'?/a p. '%";:'a';3'_§." T:,E-:6. éT£:»2§'.<: fii' {iii 1'¢:a1'i2::e1{i<>:'1 , This; MEFA C<;2::1'§.i§}.g 61?? 1':"€3:2"~§:}r:i€3'§WzI§1§$ $2235', ?Z.§"!,€' "{ii{';*1'f21"{: magifr the .f<3i§{::vs2-'§.:;:g; V V V Tzva Wééifl-«:5 "'§i;31';;s::'j:i.$" §{'§:EEI1§§3{:i'.»-.§()}" c<m1p1ia11.c:€: Qf offiszte <)bjtis:;~"1:i<3:'1s, §a.:3iif:_1;g '§»5.?.§'1%;<,?;§'§_; §J:§;'T}='§ €If¥{'V{T}ABV.i*§<).4(}/{)9 mazziis {1i$111i$:sed. W'°§,hG11"t 1'*ef€r&:'}s::€: is 'iE*.'a:':: ifllitmrfi. 5a.: ,2' ~ .j:_,r:;:s<::;5:. ' . ' . _» g _ COPY- ' *3" Q. as s 0 Assistant R.-_g;,,,,§.m. algh Cflur; Qf KW mink' Eanulorc-160 8%!

Author: N.Ananda

The Branch Manager National ... vs Smt Gangadevamma on 6 August, 2009

Karnataka High Court

ORDER K. Sankararaman, Member (T) 1. The respondents are manufacturers of paints and varnishes falling under erstwhile Tariff Item 14. They had claimed certain deductions on account of post-manufacturing expenses in their price list. The Assistant Collector had allowed the deductions claimed. That decision of the Assistant Collector was reviewed by the Collector who directed the filing of an application before the Collector (Appeals) to have the order set aside. In the meantime, the respondents who had cleared certain consignments of their goods on payment of duty on a higher value filed refund claims to derive the benefit arising from approval of the price list by the Assistant Collector wherein the deductions claimed by them had been allowed, as aforesaid. The Assistant Collector partially granted the refund claim. The respondents, aggrieved with the partial rejection of the refund claim, approached the Collector (Appeals) who held that as the Assistant Collector had already approved the price list granting the deductions claimed by them, it was not open to the successor to go against the earlier decision and withhold part of the refund. This order is now challenged before us by the department. 2. The respondents are absent despite notice sent on 18.10.1996. We proceed to dispose of the matter on merits after hearing Shri T.R. Malik, learned SDR and after perusal of the. record. 3. The main thrust of the appeal is that since the original order of the Assistant Collector allowing the deductions claimed by the respondents was itself under challenge before the Collector (Appeals), the allowing of the party's appeal by that authority on the ground that the successor Assistant Collector had no authority to deviate from the decision of the predecessor in regard to the price list is not in order. It appears that the Collector (Appeals) while deciding the appeal of the party (respondents herein) was not in the know of the fact that the price list decision on which he placed heavy reliance had not become final but had been challenged. Any decision in appeal modifying such approval of price list may have its effect on the refund matter which was the subject matter of the subsequent appeal before him filed by the department. In view of this position, we set aside the impugned order and remand the matter to the Commissioner (Appeals) to pass a de nova order on merits independent of the question that the Assistant Collector had originally allowed the deductions claimed in the price list as such a decision on the price list had not been accepted by the department but challenged before the Collector (Appeals). Dictated and pronounced in the open Court.

Collector Of Central Excise vs Bharatia And Dalal Associates on 19 December, 1996

Customs, Excise and Gold Tribunal - Mumbai

CENTRAL INFORMATION COMMISSION Room No.296, II Floor, B Wing, August Kranti Bhawan, Bhikaji Cama Place, New Delhi-110066 Telefax:011-26180532 & 011-26107254 website:cic.gov.in Adjunct to Complaint: No. CIC/DS/C/2010/000705 Appellant : Shri M.M.Bagga, Karnal( through video conferencing) Public Authority : Insurance Regulatory & Development Authority, Hyderabad (Mr.Suresh Mathur-CPIO, Mr.Sanjiv Jain-APIO, through video conferencing) Date of Hearing : 10 November 2010 Date of Decision : 10 November 2010 Facts:- Vide his RTI request of 03/04/2010 the applicant Shri M.M.Bagga sought information from the CPIO, IRDA through 6 points--enclosed herewith as Annexure A. 2. Not receiving a response, the applicant came before the Commission in second appeal. The matter was heard today through video conferencing. Both parties were present as above and made their submissions. 3. Respondents stated that on receiving the RTI application, the CPIO sent response dated 04/05/2010 to the applicant's address but the envelope was returned undelivered on 14/05/2010. Decision 4. The Commission accepts the averments of the respondent as credible and drops the proposed penalty proceedings. However after perusing the contents of the respondent's letter dated 04/05/2010, the Commission observes that the RTI application has not been handled in the true spirit and letter of the RTI Act. Attention of the respondent is drawn to the last three lines of section 2 (f) of the Act which reads as follows: "information" means -- -- -- "information relating to any private body which can be accessed by a public authority under any other law for the time being in force", with directions to apply the provisions of this clause to the conditionalities is imposed on training centres at the time of giving them accreditation and provide information to the appellant in case the provisions of the above mentioned section of the Act is applicable. 5. Respondent is given 04 weeks time to complete action as above. (Smt. Deepak Sandhu) Information Commissioner (DS) Authenticated true copy (T.K.Mohapatra) Under Secretary & Dy. Registrar (Tel: 011-26105027) Copy to:-

Mr.M M Bagga vs Insurance Division on 10 November, 2010

Central Information Commission

ORDER Gowri Shankar, Member (T) 1. In the order impugned in the Appeal E/3085/2000, the Commissioner (Appeals) has confirmed the finding of the Asstt. Commissioner that in determining, under Rule 6(b)(ii) of the Valuation Rules, the value for assessment of the yarn that the appellant manufactured and utilised in its factory in the manufacture of fabric the cost that it incurred towards advertising and marketing cost are to be included. In the order impugned in Appeal E/3084/2000, he has upheld the order of the Asstt. Commissioner confirming the demand for duty as a consequence. 2. In both these orders, the Commissioner expressed the view that in his opinion these charges are not includible but says that he is bound by the circular issued under Section 37B of the Act by the Board. 3. In our order in Cadbury India Ltd. v. CCE in Appeals E/1021 and 1022/2000 [2001 (135) E.L.T. 510 (T)], we had noted that the proviso under Section 37B of the Act specifically excluded the applicability of the circular issued under that section so as to interfere with the discretion of the Commissioner (Appeals) in exercise of his powers. We had also not been able to find in any of the judgments of the Supreme Court which the Commissioner (Appeals) had referred to Ranade Micro Nutrient v. CCE -1996 (87) E.L.T. 19; Paper Products Ltd. v. CCE -1999 (112) E.L.T. 765, anything that would justify the view that the circular issued under Section 37B was binding on the Commissioner (Appeals) notwithstanding the express provision to the contrary contained in the provision. We had said that the reference to the Department's officers or Central Excise officers in the judgments whom the Court said was bound by the circular would obviously not include a category specifically excluded by the statute itself. We reiterate our conclusion that the Commissioner (Appeals) was wrong in considering himself bound by the circular of the Board. He was free and indeed, required to decide the issue independently of this circular. 4. In the same order, we had held that marketing and sales expenses would not form element in assessable value of Rule 6(b)(ii). That rule bases the value for assessment on the cost of manufacture plus the profit that the assessee would ordinarily have made. Marketing and advertising expenses are incurred subsequent to the manufacture and have nothing to do with manufacture itself. These costs are therefore not includible. Duty therefore cannot be demanded. 5. Appeals are allowed and impugned order set aside.

Mafatlal Industries Ltd. vs Commr. Of Central Excise on 17 September, 2001

Customs, Excise and Gold Tribunal - Mumbai

Court No. - 36 Case :- WRIT - C No. - 47715 of 2010 Petitioner :- M/S Vidhya Packaging Industries Pvt. Ltd. And Anr. Respondent :- Pradeshiya Industrial And Investment Corporation And Others Petitioner Counsel :- Suneet Kumar,Vinod Sinha Respondent Counsel :- Amit Manohar,Vivek Saran Hon'ble R.K. Agrawal,J. Hon'ble Rajesh Chandra,J. Put up as a fresh case, if possible on 13th August 2010 before a Bench of which one of us (R.K. Agrawal, J.) is not a member. Office is directed to place the papers before Hon'ble the Chief Justice for nominating another Bench. Order Date :- 11.8.2010 AM/-

M/S Vidhya Packaging Industries ... vs Pradeshiya Industrial And ... on 11 August, 2010

Allahabad High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.7746 of 2008 VIDYA SUKLA & ORS Versus THE STATE OF BIHAR & ANR ----------- 4 27.09.2010 No body appears on behalf the petitioners. By order dated 4.8.2010, two weeks' time was granted to take fresh steps for service of notice on O.P. no. 2 on his correct and present address by both modes. It appears that the requisites have not been filed. Let the petitioner comply with the order dated 4.8.2010 within two weeks failing which the application as against the shall stand rejected without further reference to a Bench. ( Kishore K. Mandal, J. ) pkj

Vidya Sukla &Amp; Ors vs The State Of Bihar &Amp; Anr on 27 September, 2010

Patna High Court - Orders

Court No. - 47 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 20615 of 2010 Petitioner :- Satto Respondent :- State Of U.P. Petitioner Counsel :- Ajay Kumar Srivastava Respondent Counsel :- Govt. Advocate Hon'ble B.N. Shukla,J. Heard learned counsel for the applicant and learned A.G.A. appearing for the State. It is contended by the learned counsel for the applicant that applicant is mother-in-law of the deceased. There is general allegation against the applicant. Learned A.G.A. contended that applicant being mother-in-law was responsible for safe custody of the deceased. There was dowry demand. No overtact has been assigned to the applicant. The applicant is in jail since 28.3.2010.Case of the applicant is distinguishable from the husband of the deceased. Considering the facts and circumstances of the case and submissions made by the learned counsel for the applicant and without expressing any opinion on the merits of the case, the applicant is entitled to be released on bail. Let the applicant Satto involved in Case Crime No. 141 of 2010, under Sections 498-A, 304-B IPC and section 3/4 of Dowry Prohibition Act Police Station Hapur District Ghaziabad be released on bail on his furnishing a personal bond with two sureties each in the like amount to the satisfaction of the court concerned. Order Date :- 5.8.2010 Atul kr. sri.

Satto vs State Of U.P. on 5 August, 2010

Allahabad High Court

Court No. - 22 Case :- SERVICE SINGLE No. - 5519 of 2010 Petitioner :- Iqwal Ahamad Ansari Respondent :- State Of U.P. Through Secy.Basic Edu.Lucknow And Others Petitioner Counsel :- Nirmal Singh Yadav Respondent Counsel :- C.S.C.,J.P.Maurya,R.K.Kushwaha Hon'ble Satyendra Singh Chauhan,J. Heard learned counsel for the petitioner and the learned counsel for the BSA. Submission of learned counsel for the petitioner is that petitioner has obtained the certificate of Moallium-e-Urdu prior to 6.8.1997, but his case is not being considered by the opposite parties although the petitioner is covered by the judgment of the apex Court in the case of Suresh Pal and others vs. State of Haryana and others, AIR 1987 SC 2027. He further submits that various writ petitions have been disposed of by this Court on the basis of the aforesaid judgment. It is also submitted that the petitioner has applied in response to the advertisement, but his candidature has not been considered by the opposite parties whimsically although the other teachers, who have completed Moallium-e-Urdu after 6.8.1997 are being considered by the opposite parties. Considering the aforesaid facts, the opposite parties are directed to consider the candidature of the petitioner, provided he qualifies in all respects. With the above observation and direction, the writ petition is disposed of finally. Order Date :- 6.8.2010 Rao/-

Iqwal Ahamad Ansari vs State Of U.P. Through Secy.Basic ... on 6 August, 2010

Allahabad High Court

ORDER S. Balasubramanian, Chairman 1. The petitioner claiming to hold 49% shares in M/S Dr. Bais Surgical & Medical Institute Private Ltd. (the company) has filed this petition alleging that he has been illegally removed as the Managing Director/director of the company and that respondent 3 and 4 are guilty of siphoning of the funds of the company for their personal use and as such has sought for various reliefs inter alia including for a declaration that his removal as the Managing Director/director was illegal and that there should be an independent audit of the accounts of the company. 2. The facts of the case are that the company was incorporated sometime in November 1994, with the 3rd and 4th respondents as subscribers to the Memorandum with one share of Rs. 10/- each. They were the first directors of the company. The business of the company was to run a hospital in the name of Dr. Bais Hospital which was later on named as Ekvira Heart Institute. The building owned by the 2nd respondent has been given on lease to the hospital at Rs. l000 per month for a period of 9 years effective from 1st April, 1998. The company had nil turnover up to March, 1998 but had a liability of about Rs. 4.3 crores at that time. 3. The case of the petitioner in brief is; In view of the grave financial difficulties faced by the company, the respondents, more particularly, the second respondent Dr Bais, approached the petitioner who was in the business of dealing in hospital equipments through his firm-Ekvira Surgical Company, for joining the company with financial participation. According to him, it was also agreed that he would have equal equity participation with the respondents and accordingly he had invested a sum of Rs. 148 lacs in share capital of the company and in addition he had also contributed Rs. 41, lacs as unsecured loans. He was appointed as the Managing Director for a period of 5 years from 1.1.1998. The authorized share capital was increased from Rs. 1 crores to Rs. 3 crores and he was allotted shares worth Rs. 148 lacs in a Board Meeting held on 15.7.1999 but the company had not delivered the share scripts. With this allotment, presently he holds 49%, shares in the company while the 2nd respondent group holds 51%. While things were going on smoothly, according to the petitioner he noticed some heavy withdrawals of cash ranging, from Rs. 50000 to Rs. 60,0007- by the 3rd and 4th respondents for their personal use, every month. Therefore, by a letter dated 16th May, 2000, he instructed the Accountant not to allow any expenditure which was not related, to the functioning of the hospital. Angered with this instruction, the 3rd respondent, by a letter dated 19.5.2000, terminated the services of one Wg. Cdr. S.K. Kelker (Retd.) who had close associations with the petitioner. When the petitioner confronted the 4th respondent to ascertain the reasons for termination of the services of the said officer (Sic) a letter dated 20.5.2000 removing the petitioner as the (Sic) Director. Thereafter, with the intervention of well wisher (Sic) conciliatory meeting took place between the petitioner and the 2nd and 3rd respondents on 27th to 29th May, 2000. A copy of the minutes of the Conciliation meeting signed by all the parties is at Annexure -6, according to which the investment by the petitioner in the company was quantified at Rs. 265.5 lacs and that of the 2nd respondent group at Rs. 436,49 lacs. On the basis of these investments, it was also decided that the shares of each group in the stock of the company was 62,15% in case of Bais group and 37.85% in case of the petitioner group. After this conciliation, by a letter dated 29.5.2000, the 4th respondent unconditionally withdrew the letter dated 28th May, 2000 removing the petitioner as the Managing Director. However, the respondents failed to implement the terms of the conciliation and continued to withdraw funds from the company for their personal use. When the petitioner objected, by a letter dated 16.12.2000, he was intimated that he had been removed from the post of Managing director and also as a director of the company. The removal of the petitioner as the Managing Director and also as a Director is a grave act of oppression against him especially when he holds 49% shares in the company. Further, non delivery of shares scripts is also oppressive to him and as such the reliefs sought for should be granted. 4. In brief, the reply filed by the respondents states: The petitioner is not a shareholder of the company as no shares were allotted to him. Presently, the share capital of the company consists of only two shares allotted to the 3rd and 4th respondents at the time of incorporation of the company. No Board Meeting was held on 15.7.1999 and therefore the question of allotting any shares to the petitioner in that alleged meeting does not arise. Therefore there is no compliance with the provisions of Section 399 of the Act according to which only a shareholder can file a petition under Sections 397/398 of the Act. It is true that the petitioner had invested a sum of Rs. 148 lacs but the same was only as share application money as is evident from the Balance Sheet as on 31st March, 2000 which also reflects the paid up capital as Rs. 20/-, Therefore, this petition deserves to be dismissed. As far as withdrawal of funds from the company by the 3rd and 4th respondents are concerned, such withdrawals were on the basis of understanding between the parties and as a matter of fact, whatever amount was withdrawn before the conciliation, they were to be adjusted against the funds inducted by the respondents. As far as withdrawal after the conciliation is concerned, such withdrawals were in accordance with the terms of the conciliation. Even the petitioner had withdrawn from the company in terms of the same conciliation. Therefore, the question of siphoning of funds of the company by the respondents does not arise. Further, during the period when the petitioner was the Managing director, he had purchased certain equipments from his own firm at exorbitant prices and has also dumped on the company, certain unwanted and outdated equipments and in the process his firm had received about Rs. 88 lacs from the company. Thus, in breach of his fiduciary duties, he had enriched his own firm to the tune of about Rs. 88 lacs at the cost of the company. This is nothing but siphoning of funds of the company for his personal benefit. In addition, the petitioner owes a sum of about Rs. 80 lacs to the 2nd respondent on account of some personal loan. There are certain other payments made on behalf of the petitioner by the company. In total, the amount recoverable from the petitioner comes to about Rs. 225 lacs as against his investment of Rs. 148 lacs by way of share application money and Rs. 41 lacs by way of unsecured loans. Thus, the company has to recover about Rs. 36 lacs from the petitioner and therefore the question of allotment of any shares to the petitioner does not arise. The petitioner was removed as the Managing Director/Director only because of his acts in breach of his fiduciary duties. Therefore, not only the petition deserves to be dismissed as not maintainable in terms of Section 399 of the Act, but, even on merits, the petition deserves to be dismissed. 5. When the petition was mentioned on 31.1.2001, an ex-parte order was passed in the following terms: "Considering the facts and circumstances of the case, for the present, we are only restraining the respondents from dealing with the assets of the company and directing the company to give inspection of the statutory records of the company to the petitioner within a week". It appears that in terms of this order, inspection was given to the petitioner. In the hearing held on 8.2.2001, this Bench suggested that, to put an end to the disputes, that the investment made by the petitioner could be paid back to him but in the hearing held on 27,2.2001, the respondents reported that they were not agreeable to the said suggestion. However, in the hearing held on 3.8.2001, both the sides submitted that they would attempt at an amicable settlement and the same was repeated in the hearings held on 15.10.2001, 9.8.2002 and 20.1.2004. However, in the hearing held on 17.5.2004, the counsel reported that the compromise efforts had failed. Accordingly, the matter was fixed for hearing on merits on 31.8.2004. In the meanwhile, the petitioner filed CA 171 of 2004 complaining that the respondents, in breach of the order dated 31.1.200, had handed over the land, building and management of the company to M/S Wockhardt Hospital Limited by a Memorandum of Agreement dated 22.4.2004. In terms of the Agreement, Wockhardt has already taken over the management. The respondents were proposing to launch Wockhardt Hospital on 10.7.2004. Since such handing over of the hospital was in violation of the interim order passed by this Bench, the respondents should be restrained from implementing or giving effect to the MOU dated 22.4.2004 and they should also be restrained from launching the said hospital and appropriate action against the respondents for committing contempt should be taken. After hearing the parties, the following order was passed on 9.7.2004: "Heard on the application. With the consent of both the sides, it is directed that in the function organized on 10.7.2004, there shall be no announcement in the meeting that Wockhardt hospital has been launched or inaugurated and no publicity will be given to that effect". The respondents orally undertook to remove Wockhardt name plate Board from the hospital premises. In the same order, the respondents were directed to file replies to the application and the application was to be heard along with the petition on 31.8.2004. On 28.7.2004, the petitioner filed CA 195 of 2004 complaining that in spite of the order dated 7.7.2004, Wockhardt willfully disobeyed that order by announcing the launch of the hospital and had also given wide publicity to the same and as such proceedings under the contempt of court Act should be initiated against them. When this application was mentioned on 28.7.2004, the petitioner also complained that in spite of the oral undertaking given on 9.7.2004 that Wockhardt name board would be removed, the respondents had not done so. On that day, the following order was passed: "Application mentioned. It is rather saddening that after giving an undertaking before me and requesting me not to record the same in writing, that the Wockhardt name board will be removed from the hospital premises, after the function on 10th July, 2004, it is complained by the petitioner that the board is still continuing, I direct that this board should be removed latest by 5.00 PM tomorrow i.e. on 29.7.2004 and an affidavit to that effect faxed to this Board''. The respondents filed application CA 200 on 29.7.2004 seeking for modification of the order dated 28.7.2004 and to permit placement of Wockhardt name board on the hospital premises. All the applications were directed to be heard along with the petition and accordingly the hearing commenced on the applications as well as on the petition on 31.8.2004. 6. Shri Gopal Jain appearing for the petitioner read through the petition and contended that in terms of the minutes of the Conciliation meetings the respondents themselves had agreed that the petitioner was entitled to 30% shares in the company and therefore now they cannot claim that petitioner is not a shareholder and as such the petition is not maintainable. Further, since in terms of the minutes of the Conciliation meeting, the petitioner is to be the Managing Director of the company, the respondents could not have removed him as such. Therefore, the reliefs sought for in the petition should be granted. He further submitted that before any order is passed on the merits of the case, the contempt applications filed by the petitioner should be decided. 7. Shri Uday Lalit, Sr. Advocate appearing for the respondents submitted: The petitioner has no locus standi to file this petition as he is not a shareholder. There was no Board Meeting on 15.7.99 and therefore the question of allotment of any shares to the petitioner on that day does not arise. There are .only two shareholders in the company each holding one share. Even as late as on 31.3.2000, the investment of Rs. 148 lacs made by the petitioner is shown as share application money in the Balance Sheet. As a matter of fact, during the pendency of the present petition, the petitioner has filed a civil suit claiming for repayment of all the investment made by him in the company. If he had already been allotted shares as claimed by him, he could never ask for the repayment of his entire investment in the company. The petitioner, other than averring that shares were allotted to him on 15.7.99, has not produced any evidence that shares were allotted to him, like allotment letter, copy of the resolution of the Board, copies of return of allotment filed with the ROC etc. The Minutes of the Conciliation meeting specifically record that the amount due by him to Dr. Bais of about Rs. 80 lacs could be adjusted against the petitioner's investment in the company. This itself would show that no allotment of shares had been made to the petitioner. Since the petitioner was MD at the relevant point of time, if there were any Board resolution allotting shares, he should have produced the same. Even in the Memo of Conciliation, it has only been indicated that the investment of the petitioner in the company was Rs. 265 lacs and there is no reference regarding his share capital in the company. As late as on 4th June, 2003, the petitioner had given a telegram to the company seeking for refund of share application money of Rs. 1.48 crores on the ground that there had been unreasonable delay in allotment of shares and as such he was revoking his offer to purchase the shares. The respondents have brought this communication to the notice of the Civil Court also in their Counter This being the case, the question of the petitioner maintaining the petition as a share holder does not arise. Further, in the civil suit, the respondents have made counter claims against the petitioner, which if allowed, would make the petitioner's investment in the company as nil. In the first civil suit filed by the petitioner, he has sought for refund of Rs. 148 lacs being the share application money and Rs. 41 lacs given by him by way of loan. In the second suit, he has sought for payment for certain equipments allegedly supplied by the company. Since the petitioner has chosen to recover the money invested by him for shares in the civil suit, he cannot claim himself to be a shareholder. Having sought for repayment of his investment both in the civil suit as well as by his telegram dated 4,6.2003, he cannot even ask for allotment of shares. The normal rule of law is that on the same set of facts, one cannot seek two remedies through different fora. Therefore, not only the petitioner had no locus to file this petition as he was not a member, but, assuming that his investment was kept as share application money and therefore he could claim to have locus, after his notice for refund of the share application, money, he has definitely no locus now to continue with the petition. As far as his position as MD is concerned, the same cannot be agitated in a proceeding under Sections 397/398 of the Act. Even otherwise, in terms of the Minutes of Conciliation, he was only to be a director and not as MD. He was removed as MD/Director only because of his siphoning of funds of the company by way of supply of unwanted/outdated equipments to the company at inflated cost. The petitioner was to supply equipments to the hospital through his partnership firm Ekvira Surgical Company on "no profit no loss basis". However, he has supplied equipments at exorbitant prices. For instance, he supplied one Intra Aortic Balloon Pump which was imported by his firm to one Dr. K.G, Deshpande Memorial Center. This Center rejected the same as being outdated. Even though, he imported this equipment for Rs. 8.7 lacs, his firm gave a quotation to the company for Rs. 15 lacs. However, it billed the company for Rs. 17.5 lacs at the time of supply of the equipment. Thus, by selling a rejected outdated equipment, his firm was benefited to the tune of Rs. 17.5 lacs at the cost of the company. Likewise, his firm supplied one Electro Physiology Lab which is very expensive and which is not required by the hospital as a compulsion. His firm supplied the same to the hospital for Rs. 50 lacs. So far no documentation in respect of this equipment has been furnished by the petitioner in spite of repeated demands. This equipment has been hardly used in the hospital. Since the petitioner was the sole decision maker in regard to purchase of equipments etc., he has acquired this equipment from his own firm. Out of Rs. 3 crores of loan disbursed by SBI, the. petitioner had diverted Rs. 1.12 crore towards these outdated and unwanted equipments to his own firm and had thus put the company into great financial difficulties. That is why he was removed as a director in December, 2000. Further, the Supreme Court has held that removal of a person as a director cannot be agitated in a petition under Sections 397/398 of the Act; in Hanuman Prasad Bagri v. Bagress Cereals Pvt. Ltd. (AIR 2001 SC 1416). 8. The learned counsel further submitted: The allegation relating to withdrawal of funds of the company for personal use of the 3rd and 4th respondents is unfounded. All the withdrawals made before the Conciliation was taken into account while fixing the contribution by the respondents group and after the Conciliation, the respondents were withdrawing Rs 15,000 per month in terms of the conciliation and no other withdrawal has been made by the respondents and as a matter of fact even the petitioner was withdrawing Rs. 15000/- per month as per conciliation. Therefore, this allegation of siphoning of fund is unsustainable. 9. As far as various contempt applications are concerned, the learned counsel submitted: The respondents never intended to disobey any orders of this Board. The order dated 31.1.2001 has only restrained, the respondents from dealing with the assets of the company. The respondents have not dealt with any assets of the company. No doubt, the respondents had entered into a Memorandum of Understanding dated 22.4.2004 with Wochardt in the form of a management agreement, but it cannot be termed as dealing with the assets of the company. In terms of the management contract, Wochardt has been given the right to use the premises including the land and building and equipments and furniture thereat. It was specifically provided that the agreement was not to be understood to be one of lease or tenancy. It also provides that if the company were to sell its immovable and movable property in the hospital, Wochardt would have the right of pre-emption to purchase the same at market value. All these terms would indicate that Wochardt had been permitted to manage the hospital and such arrangement cannot be considered to be dealing with the assets of the company. The terms of the restraint order would only apply in case of sale or mortgage of the assets of the company and not a case of handing over the management. This agreement does not confer any right on Wochardt in respect of the assets of the company. The order dated 31.1.2001 was an ex-parte order and since the company never intended to deal with the assets of the company, it did not seek for either vacation or modification of the said order. Since the company was in serious financial difficulties, it decided to enter into a management contract with Wochardt. Accordingly, a draft management agreement was prepared wherein it was specifically indicated that the agreement would be effective 15 days from the date the Company Law Board either disposes of the proceedings initiated by the petitioner or permits the respondents to enter into the agreement. Therefore, the respondents were conscious of the interim order of this Board. Instead, the company only entered into a MOU on 22.4.2004 with a currency of 6 months period. The MOU specifically says that if no permission is granted by this Bench, Wochardt would walk out of the management without any claim against the company. This itself would show that the company has not dealt with the assets of the company in favour of M/S Wochardt. Even the original agreement which was yet to be signed, does not amount to in any way dealing with the properties of the company. Therefore even the allegation of the petitioner that the respondents have acted in breach of the interim orders of this Bench is incorrect. Further, an act could be considered to be an act of contempt only if it is intentional and in breach of the orders of the court. However, if this Bench were to hold that the respondents have acted in breach of the interim orders, the respondents tender their unconditional apology and they hold every institution of justice including this Board in highest esteem and have unwavering faith in the concept of rule of law. 10. Summing up his arguments, the learned counsel submitted that not only the petition is not maintainable in terms of Section 399, the petition has to be dismissed on merits also since none of the allegations has been established and also for that reason that a fraudulent person is not entitled for any discretionary relief by this Bench. 11. In rejoinder, Shri Choudhary submitted: None of the arguments of the learned counsel for the respondents is correct or legally sustainable. The Balance Sheet produced by the company as on 31st March 2000, is a cooked up document prepared solely for the purpose of the amnesty scheme launched by the Central Government and as such no reliance should be placed on the same. To determine the locus standi of the petitioner, it is to be examined whether the company has treated the petitioner as a shareholder. In Banford Investment Ltd. v. Magadh Spun Pipe Limited (93 CC 685), the Company Law Board has prescribed certain tests to determine whether a person is a member of a company or not. One of the tests prescribed is whether the company has treated a person as a member. In the present case, the petitioner had always been treated as a member of the company and had also been appointed not only as a director but also as the MD. The plea of the respondents that there are only two shareholders holding one share each of Rs. 10/- each is fallacious. When over Rs. 7 crores have been invested in the company by the petitioner and the 2nd respondent, to claim that the company is having a capital of Rs. 20 defies any logic and common sense and therefore should be rejected. It is evident from the Memo of Conciliation that the petitioner was not only to invest but also to participate in the project as the leader of the institution and was to have 50% shares in the company. It is not denied by the respondents that the petitioner had in fact invested Rs. 148 lacs towards the shares. This amount was invested in 1997. Showing this amount as the share application money for debt equity ratio purposes, the company has taken loans from the banks. Having taken the benefir of this investment, even as share application money, now the respondents cannot claim that the petitioner has no locus to file this petition. There was in fact a Board Meeting on 15.7.1999 and shares were allotted to the petitioner but since the respondents were keeping the records of the company, they have either suppressed the minutes of that meeting or have destroyed the same. The fact that the company has treated the petitioner as a shareholder is evident from para (I) of the Memo of Conciliation wherein it is stated that "on the basis of this, share of each group in the stock of the company comes to 62.15% in case of Bais group and 37.85% in case of Pande group ". Again in Para 'O', it is stated "It was agreed by the parties that the figure arrived at by and between them would be treated, as agreed figure for future accounting and no party would be entitled to dispute the same ". Again, in para (s), it is stated "The parties agreed that the person amongst whom the parties would distribute their respective shareholding are nominated in the list attached herewith. If the parties want to transfer their shares to persons other than those figuring in the list attached, the other party shall have a right of preemption to purchase the shares at a market value". These terms would indicate that the petitioner was always treated as holder of shares in the company. In the written statement in the civil suit, the respondents, while challenging the claim made by the petitioner for refund of his investment have averred "In any case all that he is entitled to as agreed by him in terms of Minutes of Conciliation meeting dated 29.5.2000 as 30% shares in the equity of the defendant, if the specialityter claim of the defendant does not succeed". Having said so in the civil suit, the respondents cannot now turn around and claim that the petitioner is not a shareholder. The respondents have relied on the telegram sent by the petitioner on 6.6.2003 seeking for refund of all the investment in the company to state that since he has revoked his offer for shares, he cannot be allotted any shares. However, in the written statement in the civil suit, the respondents have averred "Under the circumstances, there is no question of any delay and there is no question of any offer being revoked. The telegram dated 6.6.2003 does not even deserve a place in the waste paper basket". Having said so in the civil suit, the respondents cannot rely on the said telegram. It was sent only because of the abnormal delay in the allotment of shares. The respondents are approbating and reprobating. In the civil suit, the petitioner applied for attachment of properties of the company,. While dismissing the application, the civil court has observed in its order "The learned counsel for the defendant point out that the plaintiff' has mentioned in para (6.6) that shares were issued and allotted to the petitioner/plaintiff in the Board Meting dated 15. 7.1999. In view of this assertion and admitted fact such demanding of the amount of share money of Rs. 14,95,998 is irrelevant and the said deal is irreversible. The plaintiff cannot be permitted to ask for share money rather sell it to the prospective purchaser. In the background of this situation, the suit claim for refund of share application money is not sustainable. Once the plaintiff issued an allotted shares, he cannot get money back and the remedy is not available to the plaintiff as claimed in the suit". Having asserted in the civil suit that shares were allotted and that the money invested in the shares cannot be refunded, the respondents are now estopped from claiming that no shares were either allotted or could not be allotted. In Controller of Insurance v. Vanguard Insurance Company Ltd., (AIR 1966 Mad. 437), the court has held that a person cannot be permitted to take two different stands on the same issue in two different courts as the principle of estopple would apply. Since the CLB is a court of equity, it should take into consideration all aspects of this case and hold that the petitioner is a shareholder worth Rs 148 lakhs. In World Wide Agencies Pvt. Ltd. v. Mrs. Margaret T. Desor 67 CC 607), the Supreme Court has held that to maintain a petition under Sections 397/398, it is not always necessary that the petitioner's name should be in the Register of Members. In Sri Balaji Textile Mills Pvt. Ltd. v. Ashok Kavle (66 CC 654) the Court has held that the term "Member" appearing in Sections 397/398 and 399 should be understood in the context in which It is used and it is not open to the contesting respondents to contend that for the purpose of Sections 397/398, a shareholder must comply with condition precedent stipulated in Sections 41(2) of the Act and whether a person is a member or not would depend on the circumstances of each case. In the present case, there is absolutely no doubt that the petitioner is a member of the company. The prayer of the petitioner is that he should be declared to be a shareholder to the extent of 30% shares in the company in terms of the Minutes of Conciliation meeting . Once it is done so, the civil suit which was filed subsequently with a view to avoid the problem of limitation, would become infructuous. The respondents cannot rely on the suit to un-suit the petitioner in the present proceedings as the present proceeding was filed earlier to the civil suit. The involvement of the petitioner with the company is evident from the fact that the petitioner's firm had given an undertaking to Bank of Baroda to pay over dues out of the total amount of Rs. 1.2 crores to be received by the firm from the company towards the cost of equipments supplied. 12. As far as the alleged supply of unwanted/outdated equipments at inflated cost is concerned, the learned counsel submitted: The entire allegation is baseless. It is a fact that Intra Aortic Baloon Pump was imported for Dr. K.G. Deshpande Memorial Center. Initially this Doctor was to join the project of the company. Therefore in consultation with the 2nd respondent, this equipment was purchased for the hospital. It is not correct to say that this equipment was rejected by Dr. Deshpande. The 2nd respondent was fully aware of the circumstances in. which this equipment was purchased. Originally, the petitioner's firm gave a quotation for Rs. 15 lacs. It was only an estimated price and in the quotation itself it was specifically mentioned that taxes and other charges would be extra. The invoice price of Rs. 17.5 lacs included all the taxes and other charges. Therefore, it cannot be said that the difference between the quotation and the invoice has been pocketed by the petitioner. The respondents have alleged that as against the imported price of about Rs. 8.7 lacs, the petitioner has charged Rs. 17.5 lacs and thus over priced the equipment. The price of Rs. 8.7 lacs was a concessional price on the understanding that the purchaser would purchase certain minimum number of balloons. When no commitment could be given for a minimum number of balloons for the hospital, the price of Rs. 8.7 lacs was not applicable. Therefore, it is wrong to contend that the petitioner has enriched his firm at the cost of the hospital. In so far as EP Lab is concerned, the respondents have complained that the said equipment was not an essential equipment and just to dump the equipment available with the petitioner's firm, he had purchased the same for the hospital. This allegation is baseless. Since the hospital is an exclusive and a dedicated cardiac unit, it was decided to purchase EB Lab. In his letters dated 13 Feb. 1998 (Annexure 'I' & 'J'), the 2nd respondent has himself acknowledged the need to have this equipment. It is on record that this equipment has been used in the hospital. Therefore the allegation that an unwanted equipment had been purchased by the petitioner is not correct. 13. I have considered the pleadings and arguments of the counsel. Before I deal with the maintainability of the petition and merits of the case, I shall deal with the alleged contempt committed by the respondents by acting in breach of the interim order of this Bench dated 31.1.2001. The settled law in respect of violation of an interim injunction by a court as propounded by Madras High Court in Cemtury Flower Mills Ltd. v. Suppaiah (AIR 1975 Mad 270) as approved by the Supreme Court in DDA v. Skipper Construction Pvt. Ltd. (89 CC 362) is that where an act is done in violation of an order of stay or injunction, it is the duty of the court, as a policy, to set the wrong right and not allow the perpetuation of the wrong doing and that the inherent power of the court is not only available in such a case, the court is bound to exercise it to undo the wrong in the interest of justice. In that case, the court had restrained holding of a meeting and when the meeting was held in spite of that injunction, the court refused to recognize the meeting as a legal one and it put back the parties in the same position as they stood immediately prior to the service of the interim order. In the present case, in terms of the interim order, the respondents had been restrained from dealing with the assets of the company. Therefore, the question to be examined is whether by entering into the MOU dated 22.4.2004, wherein the management of the hospital had been handed over to Wochardt, the respondents had acted in violation of that order. The company and Wockhardt Hospital Ltd. had entered into a draft Management Agreement by which the management of the hospital was to vest in Wochardt for a period of 10 years. This agreement was to be executed after certain conditions precedent are completed. One of the conditions precedent is that either the present proceeding before this Board is disposed of or the permission of this Board is obtained for entering into this agreement. Since, this condition precedent had not been completed, the parties entered into an MOU on 22nd April, 2004 effective for a period of 6 months extendable by another 3 months at the option of Wockhardt. According to the petitioner, since the terms of the draft agreement practically vests all the assets of the company with Wockhardt, and this MOU being a prelude to the same, the respondents have acted in breach of the interim order of this Bench. It is to be noted that the draft agreement has not been implemented yet and therefore, my consideration would be limited to the MOU as to whether, by entering into the MOU and giving away of the management control to Wockhardt, the respondents have acted in violation of the interim order. The main purpose of the said interim order was to ensure that during the pendency of the petition, the assets of the company are kept in tact to ensure that the respondents do not fitter away the assets of the company which could be detrimental to the interest of the company. Dealing with assets would normally mean either outright disposal, creation of any charge on the assets or leasing out of the assets. The unit of the company is a hospital having its own premises and equipments. By the MOU, it is seen that Wochardt would manage the affairs of the hospital and would pay a sum of Rs 2.5 lakhs every month to the company. Management of the hospital would naturally include using the building and the equipments. The term of the MOU is only for a period of 6 months extendable by another 3 months. In other words, the MOU cannot be considered to have vested in Wochardt any right to continue to use the premises and equipments either for a long period or for an indefinite period in which case it could be argued that the assets of the company had been dealt with. The counsel for the petitioner pointed out that Wochardt has already spent nearly a sum of Rs. 48 lacs on the premises/equipments to suggest that the arrangement is a long term arrangement. From the very provision in the MOU that Wochardt would walk out without any compensation in case this Bench does not give its permission would indicate that the investment by Wochardt is at its own risk and that investment does not vest Wochardt with any right over the assets of the company. Thus it appears to me that there is no violation the interim order. Yet, When Caluse 8 of the MOU contains a undertaking by the respondents that they would produce the MOU along with a copy of the draft agreement, it would have been appropriate for the respondents, by way of abundant caution to have approached this Bench before implementing the MOU. Any way, since I am of the view that by entering into an MOU, the respondents have not violated the interim order of this Bench and since the respondents have also otherwise tendered their unconditional apology, I close CA 171 of 2004, accepting the unconditional apology. 14. As far as the merits of the case are concerned, even though in the petition, the allegations relate to the removal of the petitioner as the Managing Director/Director and alleged siphoning of funds by the 3rd and 4th respondents, the main grievance as evolved during the hearing is about the shareholding of the petitioner. According to the respondents, the company has only two shareholders each holding one share of Rs. 10/- each and for this contention they rely on the balance sheet as on 31.3.1000 wherein the money invested by the petitioner and the 2nd respondent is shown as share application money. But at the same time, in the Chartered Accountants certificate at dated 30.8.1998 (Annexure G) the 2nd respondent is shown to hold shares worth Rs 123.4 lakhs and his wife Rs 30 lakhs worth of shares. Only in respect of the petitioner, it is shown that an amount of Rs 143.35 lakhs as pending allotment. If this certificate is correct, then the paid up capital of the company cannot be Rs 20 as shown in the Balance Sheet as on 31.3.2000. According to the petitioner he was allotted shares worth Rs. 148 lacs in a Board Meeting held on 15.7.1999 while according to the respondents there was no Board Meeting on that day and no shares were allotted to the petitioner. On this contention, they have also questioned the maintainability of the petition in terms of Section 399 of the Act. It is a fact that other than asserting that he had been allotted shares, the petitioner has not been able to substantiate the same with any documentary proof like copy of the Board resolution, share certificates, return of allotment etc. But considering the fact that the 2nd respondent and his wife were shown to have been allotted shares in the Chartered Accountants certificate, but not in the balance Sheet as on 31.3.2000, it is apparent that there is manipulation of the records of the company and therefore the possibility of the petitioner having been allotted shares as claimed by him cannot be ruled out. Even otherwise, the circumstances of the case indicate that he petitioner has to be a member of the company with substantial stake. It is an admitted fact that the petitioner was approached for financial assistance together with managerial responsibilities and was appointed as a director/MD. He has admittedly invested Rs 148 lakhs for allotment of shares. In the civil court has recorded the stand of the respondents as "The learned counsel for the defendant point out that the plaintiff has mentioned in para (6.6) that shares were issued and allotted to the petitioner/plaintiff in the Board Meting dated 75.7.1999. In view of this (Sic) and admitted fact such demanding of the amount of sha(sic) of Rs. 14,95,998 is irrelevant and the said deal is irreversible (sic) plaintiff cannot be permitted to ask for share money rather sell (sic) the prospective purchaser. In the background of this situation, the suit claim for refund of share application money is not sustainable. Once the plaintiff issued an allotted shares, he cannot get money back and the remedy is not available to the plaintiff as claimed in the suit". This shows that the respondents have taken the allotment claimed by the petitioner as an "admitted fact". They cannot approbate and reprobate. Further, in the Minutes of Conciliation meeting, it is indicated that the petitioner had a 37% stake in the stock of the company and after adjustment of the loans given by the 2nd respondent, the petitioner would, have 30% shares in the company and he was also asked to indicate the names of his nominees for transfer to these shares. Thus there is preponderance of probabilities of allotment of shares in favour of the petitioner. Assuming that no shares were allotted to him, whether he could be considered to be member of the company to maintain this petition. The admitted fact is that he had invested substantial amount for the shares, shown as share application money. The name of the hospital was changed to a name similar to that of his firm "Ekvira" indicating very clearly the intention of the parties that the petitioner was to be closely associated with the company. He was appointed as a director/MD with substantial powers. It is on record that the building in which the hospital is housed belongs to the 2nd respondent and as a matter of fact it was he who initially started the hospital. The fact that the 2nd respondent is the prime mover of the company is evident from the averment of the 3rd respondent in his reply to the petition wherein he has averred "It is for the reason that when the company was incorporated in the year 1994, respondent No. 3 and 4 were made promoter directors of the company and respondent No. 2 in his name was allotted no shares". The 2nd respondent has claimed the petitioner as the co-owner of the hospital in his letter dated 13.2.1998 to Dr. Naresh Trehan (Annexure T). On 10.3.98, the authorized capital of the company was increased from Rs 1 crore to Rs 3 crores, the purpose (sic) shares against, the pending application money. (sic) of some one having given loans and claiming shares a (sic) The petitioner's investment, admittedly was towards. From the chronology of events, it is apparently clear that the (sic) which had nil turnover till 1998 was converted into a specialty heart hospital effective from 13.7.1998 after the joined the company and from nil turnover, it earned substantial income of Rs. l.59 crores during the year 1998-99 and Rs. 3.17 crores during the year 1999-2000. Under these circumstances, it is to be examined, in view of the assertion of the respondents that no shares were allotted to the petitioner, as to whether the petitioner can maintain this petition in terms of Section 399, according to which only a member can file a petition under Sections 397/98. The main object of proving certain requirements in Section 399 is that only a person who has stake in the company should have the right to file a petition under Sections 397/398. The stake is membership. In the present case, the intention of the company that shares were to be allotted to the petitioner is evident from the fact that his investment was being shown as application money for over a period of two years(assuming that no shares were allotted to him in the Board meeting on 15.9.1999) Since allotment of shares against the application money is within the power of the Board, by not allotting shares for over two years against the application money, the respondents cannot un suit the petitioner in the present proceeding on the ground that he is not a member of the company. This Board is a court of equity and the matter has to be considered on equitable grounds. I have held that, allotment of shares to the petitioner as claimed by him cannot be ruled out for reasons stated earlier. Even assuming that no shares were allotted to him as claimed by the respondents, yet, he has to be declared to be a shareholder of shares for the purposes of this petition as he was/is entitled to allotment of shares against application money. 15. The learned counsel for the respondents submitted that after the petitioner has withdrawn his offer for shares by his telegram dated 6.6.2003, he cannot claim any shares in the company. His argument was that even if the petition is held to be maintainable in view of the application money, now that the petitioner has withdrawn his offer for shares, he cannot prosecute the petition thereafter. The settled law is that the maintainability of the petition in terms of Section 399 has to be seen on the day of filing of the petition and subsequent changes in the shareholding is of no relevance. Further, when the respondents have taken a stand before the Civil Court that "Under the circumstances, there is no question of any delay and there is 110 question of any offer being revoked. The telegram dated 6.6.2003 does not even deserve a place in the waste paper basket", they cannot low take the stand that having revoked his offer for shares, the petitioner cannot ask for shares now. He also advanced the argument that after adjustment of ail t dues against the investment made by the petitioner, it is the petitioner who has to pay substantial amount to the company and as such the question of allotment of any shares to him does not arise. This argument has to be straightway rejected. Share application money can be adjusted only in two ways - one by way of allotment of shares and second- by way of refund of the amount, The question of adjusting the share application money against any other dues is not permissible. Even lien can be kept only on partly paid shares, that too, only relating to called up and unpaid money on the shares. It is surprising that the respondents claim adjustment against the share application money of even some personal loan taken by the petitioner from the 2nd respondent without realizing that the company cannot be a party to a transaction between two individuals in their personal capacity. Further, the respondents' allegation is that the petitioner had dumped EP Lab which is not a necessary equipment for Rs. 50 lacs and therefore this amount has to be adjusted against the investment made by the petitioner. It is on record that EP Lab was supplied in the year 1998 and as per Annexure R-27, procedures were performed by using this equipment right from Jan. 1999 and till 23.5.2001, 22 procedures had been performed using this equipment. The respondents have not indicated the revenue collected by the company in conducting these procedures. It is rather surprising that having kept the equipment and using the same without returning to the petitioner, the respondents seek to adjust the cost of this equipment against the investment made by the petitioner on the ground that the said equipment is not an essential one. No where, the respondents have alleged that this equipment is either over billed or that it is sub standard or defective other than stating that documents related to this equipment had not been given by the petitioner. Further, the 2nd respondent being a Doctor by profession and who has taken interest in procurement of equipment for the hospital as is evident from his letter to the petitioner date 13.2.98 (Annexure J), would have kept quite if he was aware that the said equipment was not needed in the hospital. The Conciliation took place on 29th May 2000, that is, nearly 2 years after this equipment was supplied, but there is no reference to the same in the Minutes of Conciliation meeting and no adjustment towards the cost of the same is found in the same. Therefore as far as this equipment is concerned, I am of the view that all the allegations relating to this equipment are an after thought to be used only present proceeding. As far as RF Abulator is concerned, the grievance of the respondents is that even though the cost of this equipment of Rs. 18 lacs was paid in 1998, the same was supplied only in June 2000 and by keeping this amount for two years, the petitioner has enriched himself. There, is also an allegation relating to Baloon Pump that the petitioner by supplying outdated equipment at an inflated price has enriched himself to the tune of Rs 8 lakhs. Even assuming that the petitioner has defrauded the company, yet, the alleged defrauded money cannot be adjusted against the application money and the respondents have to pursue appropriate legal remedies, if so advised. In this connection, I may refer to para 4 of the sur-rejoinder filed by the respondents wherein they have averred " The petitioner has stated in para 26 of the rejoinder on page 54 that he is agreeable to abide by the conciliation settlement and that the respondents are seeking to wriggle out of the said conciliation settlement. I say that this is false. The respondents were always ready and willing and even today ready and willing to abide by the conciliation settlement subject to the petitioner himself abiding by the conciliation settlement and constituting proportionately to the project along with Dr. Bais group. It was he who was supposed to give the names of persons in whose name he wanted shares of the value of his 30% to be allotted and that he did not give the names is evident from the communication of one of the conciliators dated 23.7.2000". From this averment it appears that the respondents' allegation of fraudulent acts by the petitioner and denial to him of the shares stem from the alleged refusal by the petitioner to abide by the terms of Conciliation. Therefore, since I have held in the earlier paragraph that the petitioner was/is entitled to shares against the share application money, he has to be treated as a shareholder of the company for the purposes of Section 399 and as such I hold that the petition is maintainable. The petitioner has claimed 30% shares in the company on the basis of the Minutes of Conciliation meeting wherein certain amount has been quantified as his contribution towards equity. This Bench cannot take cognizance of the same as it was a private one without the company being a party. I can take cognizance of only the amount shown as share application money in the books of accounts of the company. 16. The petitioner has made two allegations in this petition that he has been removed as the MD/director and that the 3rd and 4th respondents are guilty of siphoning of funds of the company. As I have earlier observed, the affairs of the company are not being carried on in a manner prescribed by the statute. As far as the alleged withdrawal of furies by the 3rd and 4th respondents are concerned, I am satisfied with the explanation given by these respondents and as such nothing survives in this application. As far as the removal of the petitioner as the MD/Director is concerned, I find that no prescribed procedure in accordance with law has been followed. It is an admitted fact that the petitioner was appointed as the MD for a period of 5 years effective from 1.1.1998 as evidenced by Form No. 32 at Annexure-2. It is not clear as to whether he was so appointed by the Board or by the general body. If at all, he can be removed as MD, it should have been by way of a Board Resolution. It is seen that by a fax dated 17th May, 2000 (Annexure-5), the 4th respondent communicated to the petitioner that the majority of the board of directors had decided to suspend the petitioner's appointment as MD pending final decision whether to continue him in office. There is no reference to any Board Resolution in that fax nor any document has been produced to that effect in the present proceedings. Again, by a letter dated 29.5.2000, the 4th respondent unconditionally withdrew the communication dated 17.5.2000. For this also, no Board authority has been produced. Finally, by a letter dated 16th Dec. 2000, the 4th respondent has informed the petitioner that "You are aware that you are no more managing director or even director of Dr. Bais Surgical & Medical Institute Private, Ltd., Nagpur", How, when and in what manner, he ceased to be the MD or director has not been stated in. that communication. Even though the respondents have claimed that due to the fraudulent activities of the petitioner he was removed as a director/the MD, there is nothing on record to show when the respondents had realized/found out about the alleged fraudulent activities. When a person is induced to invest substantial funds with the assurance of participation in the management and having been appointed as a director and MD, his removal could definitely be considered to be an act of oppression. The learned counsel for the respondents relied on the decision of Supreme Court in Bagress Cereals case to contend that removal of a director cannot be agitated in a petition under Sections 397/398. In that case, the Court found that the removal of the petitioner was the only sustainable allegation and as such held that being a single act, the same could be agitated in a civil suit. In the present case, in addition to the allegation of removal, the petitioner has clearly established that he has been unjustly denied of his membership in the company, not withstanding the fact that they had admitted before the civil court that he is a member of the company. Therefore, the decision in Bagress Cereals case is not applicable to the present case. However, considering; the strained relationship among the parties, I do not consider it would be interest of the company to grant the relief sought for by the petitioner in this regard. 17. On an overall assessment of this case, the only relief that deserves to be granted is to direct the company to allot 14,75,998 shares of Rs 10 each to the petitioner and I accordingly do so. The allotment should be made within one month of the date of this order. However, in case the company, for any reason, has reservation of allotment of shares to the petitioner in view of the strained relationship among the parties, it shall refund this amount along with an interest of 6% (simple) from the date of investment till the date of payment, within 4 months of the date of this order, in one or more installments. The interest stipulated is in line with Section 69(5) of the Act even though this provision is not applicable to a private company. Within 15 days of this order the company should communicate to the petitioner, of its decision as to whether it proposes to allot shares or refund the application money with interest as directed above. The decision of the company will be binding on the petitioner. In view of certain claims made by the company against the petitioner, I am not giving any direction in regard to refund of Rs. 41 lacs invested by the petitioner by way of loans to the company, which is a part of the suit filed by him and he may pursue the same. 18. The petition is disposed of in the above terms without any order as to cost. All the interim orders stand vacated.

Shri Dhananjay Pande vs Dr. Bais Surgical And Medical ... on 2 December, 2004

Company Law Board

>   Title: Presentation of the 24th Report of the Standing Committee on Personnel, Public Grievances, Law  and Justice  on the working of Central Bureau of Investigation(CBI). श्री शैलेन्द्र कुमार (चायल)  : महोदय, मैं केन्द्रीय अन्वेषण ब्यूरो (सीबीआई) के कार्यकरण के बारे में कार्मिक, लोक शिकायत, विधि और न्याय संबंधी स्थायी समिति के 24वें प्रतिवेदन की एक प्रति (हिन्दी तथा आंग्रेजी संस्करण) सभा पटल पर रखता हूं।

Presentation Of The 24Th Report Of The Standing Committee On ... on 11 March, 2008

Lok Sabha Debates

Court No. - 19 Case :- SECOND APPEAL No. - 2683 of 1987 Petitioner :- Awadhesh Respondent :- Sugriv Petitioner Counsel :- Namwar Singh Respondent Counsel :- N.S. Chaudhary,Anil Kumar Ray Hon'ble Sanjay Misra,J. An objection has been raised on behalf of learned counsel for the respondents that respondent no. 4 Sri Nand Kishor Singh was not a party in the proceedings before the courts below as is apparent from a perusal of certified copy of the decree. Sri S. Singh prays for adjournment of the matter to ascertain the fact and take appropriate steps in the matter. As prayed the matter is adjourned for two weeks. Order Date :- 21.1.2010 Pravin

Awadhesh vs Sugriv on 21 January, 2010

Allahabad High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.17022 of 2008 MINTU @ MANTU @ AKBAR Versus STATE OF BIHAR ----------- haque (Sheema Ali Khan, J.) 6 4.7.2008 Heard the parties. The petitioner is an accused in a case under section 302 of the Penal Code. Earlier the petitioner's prayer for bail was rejected on 1.10.2007. During investigation it appears that at para 9 of the case diary the informant has stated that the deceased was killed by some unknown criminals. The post mortem report indicates that the deceased died after two months due to infection. Learned counsel for the petitioner submits that in view of the aforesaid facts the case does not come within the purview of section 302 of the Penal Code. The petitioner is in custody since 12.5.2006. Be that as it may, the petitioner Mintu alias Mantu alias Akbar is directed to be released on bail in Sultanganj PS case No. 283/2004 on furnishing bail bond of rupees ten thousand with two sureties of the like amount each to the satisfaction of the Addl. Chief Judicial Magistrate, patna City.

Mintu @ Mantu @ Akbar vs State Of Bihar on 4 July, 2008

Patna High Court - Orders

JUDGMENT 1. The plaintiff in O.S. No. 13 of 1973 on the file of the subordinate Judge of Coimbatore, originally preferred this appeal. The original appellant died pending the appeal and his legal representative being his son is on record as the appellant. The respondents in the appeal are the defendants in the suit. The suit was laid under S. 70 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, XXII of 1959, to set aside the order dated 13-10-1972 of the fourth defendant in A.P. No. 40 of 1971 and to declare that the plaintiff is the hereditary trustee of the Ellai Chandi Vinayakar Temple in Coimbatore. The entire gamut of the facts need not be set out in this judgment for the simple reason, the controversy has boiled down to a particular aspect as to whether hereditary trusteeship, which was admittedly in existence, was lost by relinquishment as reasoned by the fourth defendant in his order and which has found countenance before the Court below. This appeal is directed against the judgment and decree of the Court below when it dismissed the suit of the plaintiff. 2. The temple is admittedly a public temple. Equally so, it is admitted that the trusteeship of the temple was hereditary. But what has been put against the plaintiff is that from 1902 to 1941, the management of the temple vested with a committee of Abhimanees, pursuant to a deed executed by the father of the plaintiff and hence, the office of hereditary trustee was renounced and relinquished by the father of the plaintiff and so, it was lost to the plaintiff also. However, Mr. T. L. Ram Mohan, learned counsel for the appellant herein, would state that though the father of the plaintiff constituted the committee of Abhimanees, strictly speaking, there was no relinquishment or renunciation of the office of the hereditary trustee by the father of the plaintiff and in spite of the arrangement, the father of the plaintiff was very much in the picture during his lifetime and after him the plaintiff. Learned counsel would contend that neither the father of the plaintiff nor the plaintiff ever stood dissociated from the management of the temple and the committee of Abhimanees got constituted to serve a particular purpose and exigency and in any event, after 1941, the committee of Abhimanees ceased to exist, and from 1947 onwards the plaintiff in his own right as the hereditary trustee is in management of the temple. In any event, learned counsel would further submit that once the office is held to be hereditary, there could not be relinquishment of the said office by the person for the time being in office and by that there could not be deprivation of the rights of the persons who are entitled to succeed to the office. 3. It is true, hereditary trusteeship is not property within Art. 19(l)(f) (now deleted) or any other Article of the Constitution. Vide Kakinada Annadana Samajam v. Commr. of H. R. and C. E., . In that case, the Supreme Court distinguished the office of hereditary trustee from that of a shebait of a religious institution, or a Matadhipathi or a Mahant where the ingredients of both office and property, of duties and personal interests are blended together. The Supreme Court countenanced that the position of hereditary trustee is that of a dharmakartha or a mere manager or custodian of a religious institution with an exception, namely, that the hereditary trustee succeeds to the office as of right and in accordance with the rules governing succession (emphasis applied by underlining). Once we countenance that succession as of right is available to the office of the hereditary trustee, it is not possible to permit a person in the office for the time being to barter it away for no value, so as to stultify and cripple the rule of succession. Such bartering away, release or relinquishment by the person for the time being in office in the hereditary trusteeship will be of no legal consequence and the person who is entitled to succeed can insist and claim his right as a successor, ignoring such release or relinquishment. 4. In Janaki Ammal v. Sanjeevi Chettiar, (1941) 1 Mad U 510: (AIR 1941 Mad 552), it has been countenanced that an alienation or release or renunciation of the office of a trustee not for value in favour of the next or immediate heir is valid and otherwise, it is invalid. In Angurbala v. Debabrata, , it has been countenanced that the general law of succession governs also the right of shebaitship. In Kalipada Chakraborti v. Palani Bala Devi, , it was held that a shebaitship combines in it both the elements of office and property and it is heritable. In Janki Raman Pd. v. Koshalyanandan Pd., , a Bench of the Patna High Court countenanced that there is no power in a shebait to relinquish his right to the exclusion of his heir. It is true that the case of a shebaitship stands on a stronger footing. But, as pointed out by the Supreme Court in Kakinada Annadana Samajarn v. Cornmr of H. R. and C. E., , the law of succession applies to the office of hereditary trustee also and the hereditary trustee succeeds to the office as of right and in accordance with the rules governing succession. Hence, the rule inhibiting relinquishment or renunciation will apply with equal force to the case of a hereditary trusteeship. Mr. V. Nicholas, teamed Government Advocate, appearing for the fourth defendant, fourth respondent herein, does not dispute this position in law. If this is so, I am not able to annex any legal significance or implication to the constitution of the committee of Abhimanees in 1902. The case of the plaintiff is that despite such arrangement, his father continued to be in management till his demise and thereafter the plaintiff took up management. In any event, from 1947 there is no committee at all and the plaintiff is in management of the temple and, according to him he is in such management as hereditary trustee. The case of the plaintiff that he is in management from 1947 has not been denied in the Written statement of the contesting fourth defendant. He merely wanted to sustain his order in which he countenanced relinquishment and surrender of the office of the hereditary trustee by the father of the plaintiff. The evidence placed in the case, if at all, can indicate that during the period 1902 to 1941, there was a committee of Abhimanees. But, it cannot be stated that either the father of the plaintiff or the plaintiff stood dissociated from the trusteeship and management and, on the other hand, they continued to be very much in the picture. From the features disclosed, it is not possible to strictly spell out relinquishment or renunciation of the office of the hereditary trustee. Even otherwise, relinquishment or renunciation of the hereditary trusteeship for no value, as per discussion supra, cannot be countenanced; so as to deprive a person entitled to succeed -in the present case the plaintiff - of his right to do so. On facts, it has come out that the plaintiff in his right as a successor has come into the office of hereditary trustee. For all these reasons, I am not able to uphold the judgment and decree of the Court below and accordingly, this appeal is allowed, the judgment and decree of the Court below are set aside and the suit of the plaintiff will stand decreed as prayed for. In the circumstances of the case, the parties are directed to bear their respective costs throughout. 5. Mr. C. Ramanathan, learned counsel appearing for the third defendant, third respondent herein, states that his client and his brothers are also claimants for the hereditary trusteeship and even earlier this Court in C.R.P. No. 2510 of 1974 by order dated 17-4-1978 has countenanced that the scope of the statutory suit cannot take in disputes between rival claimants. Taking note of this position, both the plaintiff and the third defendant filed a joint memo before the Court below stating that the dispute between the plaintiff on the one hand and the third defendant and his brothers on the other, being rival claimants to the trusteeship, may be left open to be decided in a separate suit and the Court below has accordingly left this question open. This position is left undisturbed by this judgment in appeal. In any event, I make it clear that so far as this position is concerned, it stands reiterated and the allowing of this appeal and setting aside of the judgment and decree of the Court below and granting relief to the plaintiff need not be construed to have decided one way or the other the rival claims to the hereditary trusteeship as between the plaintiff on the one hand and the third defendant and his brothers on the other. 6. Appeal allowed.

Chettimai C. Nanjappa Chettiar ... vs S.N. Kuppuswami Chettiar And Ors. on 21 March, 1985

Madras High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C) No. 747 of 2004(L) 1. THE DIVISIONAL RAILWAY MANAGER, ... Petitioner Vs 1. M.U. KURIAKOSE, MUZHUTHURUTHEL VEEDU, ... Respondent 2. THE CENTRAL LABOUR COURT, For Petitioner :SRI.N.ANIL KUMAR, SC, RAILWAYS For Respondent :SRI.T.C.GOVINDA SWAMY The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN Dated :06/11/2007 O R D E R THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------------- W.P(C).No.747 OF 2004 ------------------------------------------- Dated this the 6th day of November, 2007 JUDGMENT The petitioner Southern Railway challenges Ext.P1 order of the Labour Court issued under Section 33 (c) 2 of the Industrial Disputes act, 1947. By that order, the first respondent has been granted an amount of Rs.8.965/- with 6% interest from 25.7.1989 till the date of payment. No jurisdictional error or legal infirmity is pointed out as regards the impugned order. The plea that the Labour Court did not advert to the materials on record does not stand. A perusal of Ext.P1 order would show that all the facts and factors, including the relevant decisions have been taken note of. The findings of the Labour Court on the basis of the materials on record, which includes details as regards the date of temporary status, is beyond challenge. For the aforesaid reasons, the writ petition fails. The same is accordingly dismissed. No costs. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge kkb.

The Divisional Railway Manager vs M.U. Kuriakose on 6 November, 2007

Kerala High Court

JUDGMENT Swatanter Kumar, J. 1. This Regular Second Appeal is directed against the judgment and decree passed by the learned Additional District Judge, Ambala, dated 1.5.1997. Vide impugned order, the learned first Appellate Court dismissed the appeal being without merit with costs. Consequently, affirming the findings and the conclusions arrived at by the learned trial Court vide its judgment and decree dated 7.10.1996. 2. Gurnam Singh filed a suit for declaration stating that the resignation dated 1.12.1989 was a result of pressure, duress and coercion by the Head Clerk Sudarshan Kumar. In fact, he never submitted the resignation out of his free Will and the same was ineffective and null and void, hence prayed for continuity of service and setting aside the consequential order passed by the Superintendent of Police, Ambala dated 1.12.1989. 3. The suit was contested by the defendants. All the averments made in the suit were disputed and it was stated that the plaintiff remained on medical leave on different dates with effect from 8.9.1989 to 10.9.1989, 11.9.1989 to 1.10.1989 and 3.10.1989 to 1.11.1989 for having domestic problems and as a result of which he submitted his resignation, which was accepted by the competent authority and as such, the suit was not maintainable. 4. The learned trial Court vide its order dated 19.4.1995 framed the following issues:- i) Whether the resignation accepted by defendant No. 2 has been obtained under duress, pressure, and coercion and in violation of the Police Rules and Rules of natural justice? OPP. ii) If issue No. l is proved then whether the plaintiff continues to be in service and is entitled to the entire service benefit? OPP. iii) Whether the suit is barred by limitation? OPD. iv) Whether the suit is not maintainable in the present form? OPD. v) Whether the plaintiff has got no cause of action to file the present suit? OPD. vi) Whether the suit is bad for want of notice under Section 80 of C.P.C.? OPD. vi) Relief. 5. Having afforded the opportunities to lead evidence in support of their respective case, the learned trial Court vide judgment and decree dated 7.10.1996, dismissed the suit of the plaintiff, while answering all the material issues against the plaintiff. The said judgment and decree was unsuccessfully challenged in appeal, giving rise to the present Regular Second Appeal. 6. It is contended by the learned counsel for the appellant that the alleged resignation had been submitted and accepted in most unusual manner. There was no occasion for the appellant to submit his resignation to the Superintendent of Police as in normal course, he would have submitted the resignation to his immediate superior officer. According to him, the learned courts below have not appreciated the evidence correctly and as such, the findings of the learned Courts below are liable to be set aside. 7. At the very outset, I would like to make reference to the findings recorded by the learned first appellate Court, while affirming the findings arrived at by the learned trial Court. The relevant portion of the findings reads as under:- "After going through the evidence on the file, I regret rny inability to accept the arguments of learned counsel for the appellant that the alleged resignation letter copy of which is Ex.D.1 was actually not made on 25.9.1989 but on 1.12.1989 and that the same was not voluntary and the same was taken under duress and pressure. It is true that the statement of PW.1 Dr. R.K. Patnaik, Senior Psychiatrist, Civil Hospital, Ambala City shows that the plaintiff was suffering from acute depression and he was advised best rest for four days from 5.9.1989, vide OPD slip, copy of which is Ex.P-2. The statement of PW-1 Dr. R.K. Patnaik, also shows that OPD slips Ex.P.3 to P.11 which are dated 14.9.1989, 21,9,1990, 16.10.1989, 26.10.1989, 3.5.1990,10.5.1990, 28.9.1989 and 3.5.1989, were bearing his signatures and he had prescribed the treatment of depression for the plaintiff-appellant. Statement of PW-3 Dr. Ramesh Chander also shows that he treated the plaintiff-appellant for depression and low blood pressure. The resignation letter, copy of which is Ex.D.1 nowhere shows that the plaintiff alleged that he was suffering from depression and low blood pressure and therefore, it was not possible for him to work any more in the Police department. It was also not alleged in the resignation letter by the plaintiff that he was resigning because it was not possible for him to arrange a gala party with drinks for Head Constable Sudarshan Kumar. Significantly the resignation letter of the plaintiff, copy of which is Ex.D.1 shows that the plaintiff made a request for accepting his resignation on the ground of his domestic problems. He served a two month's notice w.e.f. 25.9.1989 and requested that his resignation be accepted w.e.f. 1.12.1989. He also specifically wrote it in the resignation letter that he was tendering his resignation voluntarily. The resignation letter copy of which is Ex.D.1 was forwarded by the Lines Officer, Police Lines, Ambala City. It was not the case of the appellant that the then Lines Officer was also inimical to him and he was instrumental in administering a threat or he demanded any gala party with drinks from him. However, it seems that since the plaintiff had himself made a request for acceptance of the resignation w.e.f. 1.12.1989, therefore, his resignation was accepted w.e.f. 1.12.1989 by Supdt. of Police, Ambala, vide order dated 1.12.1989, copy of which is Ex.D.3. It is not conceivable that the Lines Officer of Police Lines, Ambala City, C.R.C. Head Constable Sudarshan Kumar and Superintendent of Police all colluded with each other and obtained the resignation letter from the plaintiff on 1.12.1989 from back date i.e. 25.9.1989.1 do not find any infringement of Punjab Police Rules in the acceptance of the resignation of the plaintiff because the resignation of the plaintiff was accepted after more than two months of making the same. A resignation of a subordinate Police Official can be accepted by the Superintendent of Police and it is immaterial if same was not put in the orderly room. It is also immaterial if defendants-respondents have not produced the daily receipt register and dak register of the police lines or office of Suptd. of Police. The plaintiff did not examine even a single official of the Police department who could come and say that Head Constable Sudarshan Kumar threatened the plaintiff that he would be dismissed/terminated from the service and he pressurised the plaintiff to submit a resignation letter by putting a back date on the same." 8. During the course of argument, the learned counsel appearing for the appellant could not bring to my notice any material piece of evidence in the form of documents or oral testimony which could farther the case of the appellant. It has been specifically averred by the plaintiff in the plaint that the plaintiff was awarded commendation certificate for the good work. This fact is admitted by the defendants in their written statement, which obviously shows that as and when the plaintiff did good work during his service period, due recognition was given to such work, as such, one cannot see any reason of bias or undue pressure by the police authorities upon the appellant. The provisions of Rule 14.11. Vol.-II of Punjab Police Rules clearly show that it was at the instance of the plaintiff that his resignation was accepted with effect from 1.12.1989. What is the violation of the sub rule allegedly committed by the respondents have neither been properly pleaded nor proved. The bare reading of the plaint, which has been produced during the course of hearing, shows that no specific facts have been stated in the plaint, which could satisfy the basic ingredients of an undue influence or coercion rendering the letter of order of resignation ineffective. It is well settled principle of law that complete and definite pleadings must be averred in the plaint for alleging that a particular document was vitiated because of undue influence or coercision. 9. Learned counsel for the appellant has relied upon the judgment of Hon'ble Supreme Court in the case of M/s Variety Emporium v. V.R. M. Mohd. Ibrahim Naina, A.I.R. 1985 Supreme Court, 207. There could be no dispute to the principle settled by the Hon'ble Supreme Court in this case. It was stated that where the finding is shown to be manifestly unjust, the same should be set aside. In the case in hand, both the Courts below have come to a concurrent finding of fact, upon proper appreciation of evidence. The findings arrived at are neither perverse nor so illogical that it would call for interference by this Court in a Regular Second Appeal. The Hon'ble Supreme Court of India has repeatedly held that the High Court in Regular Second Appeal should normally not disturb the concurrent finding of fact. 10. In this regard, reference can be made to the judgment of the Hon'ble Supreme Court of India in the case of Ramanuja Naidu v. Kanniah Naidu and Anr., J.T. 1996 (3) S.C. 164. 11. Resultantly, I find no merit in this appeal and the same is dismissed. However, there shall be no order as to costs.

Author: S Kumar

Gurnam Singh vs The State Of Haryana And Ors. on 11 March, 1999

Punjab-Haryana High Court

Criminal Misc. No. M-27542 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** Criminal Misc. No. M-27542 of 2009 Date of Decision:12.10.2009 Joginder Pal Jain and another .....Petitioners Vs. State of Punjab .....Respondent CORAM:- HON'BLE MR. JUSTICE HARBANS LAL Present:- Mr. P.S. Dhaliwal, Advocate for the petitioners. Mr. Arshvinder Singh, Deputy Advocate General, Punjab. **** HARBANS LAL, J. October 12, 2009 ( HARBANS LAL ) renu JUDGE This petition has been moved by Joginder Pal Jain as well as his wife Swaran Lata Jain under Section 482 of the Code of Criminal Procedure seeking permission to go abroad during pendency of the trial before the learned trial Court. The brief facts giving rise to this petition are that Joginder Pal Jain- petitioner is at present sitting M.L.A of Congress Party from Moga constituency. He had defeated Shri Tota Singh Ex. Cabinet Minister of Akali Party in the last Assembly Elections held in 2007 with comprehensive margin and due to this reason, he and his family members have been implicated in false cases to tarnish their image. Rosy Jain - daughter-in-law of the petitioners is in Vancouver and at present, she is in the family way. Criminal Misc. No. M-27542 of 2009 -2- As per the Doctor's report, the expected date of her delivery is 7.11.2009. It is necessary for the petitioners to remain by her side during this hour of need. I have heard the learned counsel for the parties, besides perusing the record with due care and circumspection. Learned counsel for the petitioners submitted with great eloquence that as would be apparent from Annexure P.6, the Obstetrical Ultrasound report, the expected date of delivery of Rosy Jain is 7.11.2009. He further puts that Joginder Pal Jain - petitioner being sitting M.L.A cannot afford to flee from justice. Their daughter-in-law being in urgent need of her care by them, they may be permitted to go abroad. Learned State Counsel could not controvert these submissions in a successful manner. I have given a deep and thoughtful consideration to these submissions made by the learned counsel for the petitioners. In re: Ajay Vir Sehgal v. Central Bureau of Investigation, 2005(3) Recent Criminal Reports (Criminal) 318, the petitioner was facing trial in a criminal case. He was allowed to go abroad in connection with his business and come back and present himself before Court on the next hearing. Taking into consideration the cumulative facts and circumstances of the case, the orders passed by the Court below are hereby set aside/ quashed. The petitioners will be at liberty to fly abroad with condition that they shall return to India before 7th December, 2009 positively and each petitioner shall deposit Rs.5 lacs in cash/ draft with the concerned Court, which may also impose other conditions as it deems fit Criminal Misc. No. M-27542 of 2009 -3- and proper. However, on their return, they shall be entitled to seek refund of this amount provided they return by the said date failing which this amount shall be deemed to have been forfeited to the State. Disposed of accordingly.

Joginder Pal Jain And Another vs State Of Punjab on 12 October, 2009

Punjab-Haryana High Court

W9 19122.07 IN THE HIGH COURT op' KARNATAKA if "" V' ' CIRCUIT BENCH AT D§1ARwArJ ~ I 'IE 7 . DATED TEES THE 1611! DA? 03.5:-ém;,»éOQ9. 4' ' T--T T BEEQRE A _ V % THE HONBLE MR.Jus'--:it;--E AJIT wan' PE'r1'r:o;~§ No.1.9'i2£§[;?(§fl7{GM--CPC) = 1. DHAMAKUMAQ, 's/0 i§1:2qGé;Nar.§bii"s3A.___:i' GANGANA(:€_:u£;TRA. , , AGE 35 Y'j1s3AR_S, 06¢: >AG_R;C:3L.i_u'R_E;.-- cHA:¢nRAéia_,é*;x{2a:gAG<:i3DA " sxoi snivmaaoupa GANGANAGOUDRA AGE¥f_&8 Y..*+2ARS,.3§1€::_AGRi'CULTURE. (BOTH AréE.,_REs1DEN*I*S' J MUEENNUR LRANEBENNIJR' 1 15 HAVER!.,DISTRIC.YI'.} ~ V '~ _(BYv.'i$iRr.;_aAs5vARAJ '16.' MEKKI, ADV.) PE'TI'I'IONERS 1. sxo RUDRAGOUDA PA'I'IL @ GANGAHAGOUDRA, AGE 47 YEARS, occ: AGRICULTURE. : SIYRESHGOUDA, s/o RUDRAGOUDA PATTL, @. cmemgsoumm, - AGE 45 YEARS, ace: AGRICULTURE. 1 . " (BOTH ARE R/amngmua, wp 19122.07 RANEBENNUR TALUK, '2 v- HAVE}?! DiS'I'RIC'I'.) (BY SR1. B.C.SEE'2'HARAMA RAG AND SR1 N.R.iQJPPELUR,__ _ Aovs. FOR 12.4. ROTICE T0 R2 Dsspitnsm wrrng-"---- ' '--- 1 THIS PETITION IS FILED UNDERmAR'i'ICLES" 226 m1':=.,227 " OF' THE CONS'I'I'I'UTION 012' INDIA EPRAYH-§G'TO.;« QUASH*'E'H'E. ORDER DATED 29/10/200? PASSED .31: 'l'=!~.!E-. PRL; jv-c__:1v;:. JUDGE(JR.DVN} AND xsr ADDL. mm, RAN'i:.'BENNUR_ I.A.NO.7 AND 8 {N (3.3. NO.250l{)5 ViD.E ANNE?{URE»F ALLOW " . I.A.NOS.7AND8AND ETC. " . V_ " THIS PE'"l'I'I'ION COMING Ol'_€ F'0R'~ERELiMINARY §HAERING IN B GROUP, THIS DAY,,'m;ga: cevm" Mj1.xpE._*rHE FOULOWING: Vflrat. writ petition is the order applications. _; 'WIj1en is taken up the learned eaunsel = 31;: g the first respondent submit that the suit A of. Pfiition does not survive for consideration. "ii petitian stands dismissed. - _.r'5 Sd/~ JUDGE kmv

Author: Ajit J Gunjal

Dhanyakumar S/O Ninganagouda vs Prakashgouda on 16 April, 2009

Karnataka High Court

JUDGMENT M.P. Menon, J. 1. While functioning as an Armed Reserve Police Constable the petitioner was charged with an item of serious misconduct. The allegation was that he had enticed a girl away from the Railway Station in Always taken her to the treasury premises and had either raped her or attempted to rape her. On the basis of the above allegation an enquiry was conducted. The Enquiry officer came to the conclusion that the petitioner was guilty of the charge. After issue of a show cause notice the disciplinary authority dismissed the petitioner from service. 2. The petitioner took up the matter in appeal before the D.I.G. of police. The D.I.G. took the view that in the light of Rule 10(a) of the Kerala Police (Departmental Inquiries, Punishment and Appeal) Rules, 1958 the disciplinary authority should not have passed the final order inflicting the punishment, it should have waited till the criminal court had disposed of the pending case against the petitioner in connection with the alleged offence of raping. 3. The criminal court ultimately acquitted the petitioner of the charge of rape on the ground that it was not established before it that the girl has, not given her consent. And after the conclusion of the criminal proceedings the disciplinary proceedings were continued by examining one more witness and issuing a fresh show cause notice to the petitioner on the basis of the finding recorded thereafter. The petitioner was accordingly dismissed from service. His appeal to the D.I.G. and a review taken before Government under the relevant provisions of the Rules also did not succeed. 4. This writ petition is directed against the original order dismissing the petitioner from service and the appellate and revisional order confirming the same. 5. Counsel for the petitioner submits that in view of Rule 10(b) the disciplinary proceedings initiated earlier could not have been continued against him after the disposal of the criminal case by the Sessions Court. The decision of a Division Bench of this Court in D.I.G. of Police v Sankaran 1968 KLT 608 is relied on for the purpose. 6. 1982 KLT 608 was no doubt a case where this Court had occasion to examine the scope of Rule 10(b). But the scope of Rule 10(a) was not examined Rule 10 reads as follows: 10 Departmental Inquiry regarding matters Before a Court:-- (a) Final orders in a departmental inquiry, which is subjudice, shall be issued only after the matter has been disposed of in Court. (b) If the question of departmental action arises against the conduct of an officer, who has already been tried in a Criminal Court on the facts which form the basis of the charge against him the following rules shall be observed: (i) If on a full consideration of the same facts, a criminal court has arrived at a definite decision, which is neither reversed nor modified in appeal, the Department shall not take any further proceedings on the basis that the proceedings in the criminal court were misconceived or that the judgment was erroneous. (ii) If, however, certain facts which fall for departmental action are not relevant to the charge before the Criminal Court and as such, were not placed before the Court, there shall be no objection to departmental action being taken on such facts. On an examination of the provisions of the above rule I am of the view that Sub-rule (a) applies to cases where disciplinary proceedings are initiated either before the institution of a criminal complaint or during the pendency of criminal proceedings, which Sub-rule (b) is intended to cover cases where the authorities wait for the decision of the criminal court and then examine the question whether notwithstanding acquittal by the criminal court, disciplinary action should be initiated. In other words, Rule 10(b) will apply only to cases where disciplinary action is initiated for the first time after the judgment of the criminal court. Where such proceedings are initiated during the pendency of the criminal trial or even earlier, it seems to me that the provisions of Rule 10(a) should govern the situation. The ban in Rule 10(a) is only against the passing of final orders, as held by the D.I.G. in Ext.P7, during the pendency of proceedings in the criminal court, this provision implies that after the criminal case is disposed of by the court, final orders could be passed in the pending disciplinary proceedings. In the above view, I find no grounds to interfere with the orders impugned in this writ petition. The original petition is accordingly dismissed. 7. Counsel for the petitioner submits that another police constable involved in the same case was subsequently reinstated as per Ext. P17 order. It would be open to the petitioner to request the Government to meet out the same treatment to him, if he is so advised.

Author: M Menon

P.M. Alias vs State Of Kerala And Ors. on 15 January, 1986

Kerala High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 5403 of 2009(U) 1. E.P.SHAMSUDHEEN, S/O.UMMER, ... Petitioner 2. E.P.UMMERKUTTY, S/O.MAMMU HAJI, Vs 1. SPECIAL TAHSILDAR & LAND ACQUISITION ... Respondent 2. SUB DIVISIONAL MAGISTRATE, THALASSERI, 3. K.P.RASHEED, S/O.KHADEER, AGED 46 YEARS, 4. K.P. JALEEL, S/O.KHADER, 43 YEARS, 5. STATE OF KERALA, REPRESENTED BY 6. STATE OF KERALA REPRESENTED BY For Petitioner :SRI.K.V.PAVITHRAN For Respondent :GOVERNMENT PLEADER The Hon'ble MR. Justice PIUS C.KURIAKOSE The Hon'ble MR. Justice P.Q.BARKATH ALI Dated :21/05/2009 O R D E R PIUS.C.KURIAKOSE & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - W.P.(C).No.5403 OF 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 21st day of May, 2009 JUDGMENT Pius.C.Kuriakose, J. The tenants in occupation of buildings belonging to respondents 3 and 4 are the petitioners and in this writ petition under Article 226 of the Constitution, they are seeking quashment of Exts.P6 and P6(a) notices issued by the land acquisition authority to them demanding surrender of the buildings occupied by them purporting to be in pursuance to the land acquisition award. According to the petitioners, the buildings occupied by them did not fall within the alignment of acquisition. The stand taken by the Government as well as by respondents 3 and 4 is that, though the entirety of the buildings occupied by the petitioners as tenants did not fall within the alignment of acquisition, a request was submitted under Section 49(1) of the Land Acquisition Act by respondents 3 and 4 that the entire building belonging to them and occupied by the petitioners be acquired and that the impugned notices have been issued in the light of the request/option  WPC.No.5403/2009 2 submitted by respondents 3 and 4. Noticing the controversy as to whether the entire land as well as the buildings occupied by the petitioners is covered by the award passed by the land acquisition officer, this court directed the Government Pleader by order dated 18-02-2009 to make available copies of the request submitted by respondents 3 and 4 under Section 49(1) and also the award passed by the land acquisition officer in acceptance of the request. Such direction was passed so as to enable this court to understand whether the award presently passed takes in the entire buildings occupied by the petitioners as well as the land occupied by those buildings. Despite directions, documents were not submitted. Accordingly, this court directed the land acquisition officer to file an affidavit and accordingly a detailed counter affidavit has been filed. The counter affidavit also does not clearly state as to whether the award presently passed pertains to the land occupied by the entirety of the buildings in the possession of the petitioners. 2. It has been settled by the judgment of the Full Bench of this court in Saramma Itticheriya v. State of Kerala ( 2008(1) KLT 6(F.B.)  WPC.No.5403/2009 3 that when option is given by the owner of the land under Section 49(1) for acquisition of the entire building, a portion of which alone is required by the government for public purpose, the government will become bound to acquire not only the remaining portions of the building, but also the land occupied by such remaining portions. 3. Having gone through the pleadings, it is clear to us that under the award presently passed, no compensation has been determined for the land occupied by the entire building under the possession of the petitioners. The first respondent is bound to acquire and pass award in respect of the balance portion and also the land occupied by the balance portion in terms of the judgment of the Full Bench. In other words, respondents 3 and 4 should not be allowed to retain ownership over the land occupied by those portions of the building which are being acquired only because of the option given by them under Section 49(1). Under the above circumstances, this writ petition is disposed of issuing the following directions; The order of stay presently passed will continue for a period of thirty days more from today. The first respondent is directed to hear  WPC.No.5403/2009 4 respondents 3 and 4 as well as the petitioners and take a fresh decision on the application under Section 49(1) submitted by respondents 3 and 4. At any rate, in view of the urgency of the need which is definitely for a public purpose, the first respondent will ensure that the acquisition proceedings are completed and possession is taken of the property covered by the award and supplementary award if any passed at the earliest and at any rate within three months from today. PIUS.C.KURIAKOSE JUDGE P.Q.BARKATH ALI JUDGE sv. WPC.No.5403/2009 5

E.P.Shamsudheen vs Special Tahsildar & Land ... on 21 May, 2009

Kerala High Court

JUDGMENT Mukherji, J. 1. These tour appeals arise out of as many suits that were instituted by the plaintiffs for declaration of title and recovery of possession after demolition of certain huts which stand on the land. The Courts below have found is favour of the plaintiffs on the question of title but being of opinion that the plaintiffs have failed to have their possession within 12 years before suit have dismissed the said suits. 2. The arguments that have been advanced before us on behalf of the plaintiffs who are the appellants in these appeals are directed against the finding of the Subordinate Judge to the effect that the plaintiffs have failed to prove their possession within 12 years and against the reasoning upon which that finding is based. Beading the judgment of the Subordinate Judge it would appear that he, after discussion of a very large number of decisions upon Article 142 and Article 144, Lim. Act, came to the conclusion that in the present suits it was Article 142, that was applicable and that the plaintiffs were to prove their possession of the particular plots with which the suits ware concerned within 12 years before the institution thereof. He then proceeds to take into consideration the evidence in the ease and records two observations which I think it better to quote in his own words. He says thus: It was argued that the defence evidence of possession for more than 12 years is quite unsatisfactory, but the weakness of defendant's evidence cannot go to make the plaintiff's evidence strong. It is true that the evidence regarding possession for more than 12 years is not vary satisfactory. 3. He says also: Event in spite of the unsatisfactory nature of defendant's evidence I must say that it is far hotter, than that of plaintiff's evidence and on comparison the defendant's evidence becomes acceptable. 4. As regards these two observations upon which the learned Subordinate Judge based his final conclusion to the effect that the plaintiffs had failed to prove their possession within 12 years before suit, what is said is substance on behalf of the appellants is that the Subordinate Judge omitted to keep in view two important principles that should be borne in mind in determining the question of possession in a case of this nature. These two principles are first, that where evidence of possession on either side is not satisfactory or not quite satisfactory the party who has succeeded in proving his title is entitled to rely upon the presumption that he was in possession and second, that in finding possession in favour of a trespasser the possession that is to be found in his favour is to be United to the particular portion of the land in respect of which he has succeeded in proving his possession. 5. As regards the first of these propositions relance is placed upon the decision in the case of John Clark v. G.H.D. Elphinstone, L.R. House of Lords [1881] 6 A.C. 164, in which it has bean laid down that, with regard to land lying within defined boundaries the rule to apply on the question of possession is to assume that the acts of possession done upon one part of the land should be taken as showing possession of the person doing such acts in respect of the whole land. There can possibly be no dispute whatsoever as regards the correctness of this proposition. But in a case in which the plaintiff alleged that the lands are capable of being possessed by the exercise of acts of possession and where, as here, it is also alleged that the possession that was exercised was by receiving rents from the tenants who were actually in occupation of the land, to such a case this presumption will hardly apply until and unless the plaintiff has succeeded in showing that he has been in possession by realization rent from tenants who are actually in occupation of at least a part of the land. This is not a case in which it was alleged on behalf of the plaintiffs that the land was waste or incapable of being possessed or that it was khas patit land of the plaintiffs. The definite case that was set up was that there were tenants on the land from whom rents use to be realized and both the Courts below have upon the evidence refused to accept that case as established. They have referred to the fact that the collection papers etc., have not been produced and have decreed that the evidence brought forward for the purpose of proving that the plaintiffs' tenants were in occupation of the land was not satisfactory. It would not, in our opinion, be right to proceed upon any presumption of the character mentioned above in a case where actual and not mere constructive possession was the case that was put forward on behalf of the plaintiffs. It has been argued in this connexion that the presumption that should be relied upon is that possession follow title. That undoubtedly is a maxim that has got sometimes to be applied. It should, however, be remembered that the maxim does not mean that because a person has title to some property therefore necessarily he is in possession of it. What it actually meant is that if at one time a man with title was in possession of property the law allows the presumption that possession continued. In this particular case as far as can be made out from the finding of the Courts below, it does not appear that the plaintiffs have succeeded in establishing that at any point of time they were in possession. Indeed, there was no statement in the plaint as to when the plaintiffs were dispossessed and no attempt was made in the evidence to show that at any particular time the plaintiffs were dispossessed. We are accordingly of opinion that the appellants are not entitled to rely upon the presumption of the description mentioned above and that the first of these contentions must necessarily fail. 6. As regards the question whether the possession of the trespasser should be taken as being possession of a particular plot of land in respect of which he has succeeded in proving that possession there can hardly be any dispute. But before the defendant can be called upon to show that he was in possession the plaintiff in a case under Article 142, Lim. Act, will have to prove his possession within 12 years before suit. Upon the findings of the Courts below the plaintiffs have failed in this respect. 7. Turning now to the facts that have been found in the present case in disproof of the plaintiff's possession within 12 years before suit it is necessary to refer to the arguments that have been advanced before us on behalf of the appellants. It has been said that between Abdul Razak who is said to be the landlord under whom the defendants claim to hold these lands and the plaintiffs there was a previous litigation being Title Suit 71 of 1921 in which Ablul Razak was unsuccessful is recovery of possession from the plaintiff's in respect of a part of the plot of 3 bighas of land to which the bits of land involved the present suits appertain. It is also said that some rent suit or rent suits instituted by Abdul Razak against some of the tenants occupying some lands out of the plot were either dismissed or withdrawn. It has bean further brought to our notice that a portion of the land was some time in the year 1916 made over by one of the plaintiffs to the Municipality, and our. attention has also been drawn to the fact that in the partition that took place between the plaintiffs themselves this plot of land was reserved as ejmali and was not partitioned, the object being that it would thereafter be used for the purpose of excavating a tank for the use of the public. These facts even if they have all been established though it must be said with regard to some of them that they have not been established in the opinion of the Courts below, specially as regards the land that had been made over to the Municipality being part of this land, all these facts would not be decisive of actual possession in respect of any part of the lands which form the subject matter of these suits. This a matter which the plaintiffs had to prove and which in the opinion of the Courts below they have failed to prove. The finding of both the Courts below as to why the land was not partitioned but was kept ejmali at the time of the partition is that none of the individual cosharers liked to get the land in respect of which, the cosharers were really out of possession. That again is a finding of fact with which we cannot interfere in second appeal. There are other matters referred to in the judgment of the learned Munaif against the plaintiffs' case as to possession, e.g., evidence of the supervisor of the Garden Reach Municipality, the inference to be drawn from the non-examination of the Partition Commissioner, etc., and although they have not been repeated in the judgment of the Subordinate Judge we may take it that the Subordinate Judge intended to affirm those findings as his was a judgment of affirmance. We are of opinion that on the whole the finding on the question of plaintiff's possession at which the Courts below have arrived need not be disturbed in those appeals. 8. The appeals accordingly are dismissed with costs. Bose, J. 9. I agree.

Author: Mukherji

Hardut Ray Chamaria And Co. And ... vs Ujir Shaikh And Ors. on 9 July, 1928

Calcutta High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 28306 of 2008(T) 1. M/S. POLLY'S INN PRIVATE LTD., A ... Petitioner Vs 1. STATE OF KERALA, REP. BY CHIEF ... Respondent 2. THE SECRETARY, 3. THE SPECIAL GRADE SECRETARY, 4. THE DISTRICT COLLECTOR, ERNAKULAM, 5. THE REVENUE DIVISIONAL OFFICER, 6. THE TAHSILDAR, KOCHI TALUK, 7. THE VILLAGE OFFICER, For Petitioner :SRI.E.K.NANDAKUMAR For Respondent :SRI.MURALI PURUSHOTHAMAN The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR Dated :07/04/2010 O R D E R T.R.RAMACHANDRAN NAIR, J. ---------------------------------------------- W.P.(C)No.28306 OF 2008 ----------------------------------------------------- DATED THIS THE 8th DAY OF APRIL, 2010 J U D G M E N T The learned counsel for the petitioner seeks permission to withdraw the Writ Petition. Permission granted. The Writ Petition is dismissed as withdrawn. T.R.RAMACHANDRAN NAIR, JUDGE dsn 

M/S. Polly'S Inn Private Ltd. vs State Of Kerala on 7 April, 2010

Kerala High Court

JUDGMENT P.S. Safeer, J. (1) The grievance raised by this petition is that the Additional District Magistrate, Delhi should not have affirmed the order dated the 14-11-1973 passed by the Magistrate attaching shop Nos. 279 and 279A situated in Chowfc Jama Masjid, Delhi in exercise of the jurisdiction provided by section 145(4) of the Criminal Procedure Code, hereafter called "the Code". In the course of examining the various aspects of the litigation apart from the orders passed by the Civil Court, I have gone through the preliminary order passed under section 145(1) of the Code. Section 145(1), is :-(........,) (2) A competent order passed under the afore-quoted provision must contain the grounds on the basis of which the Magistrate may have felt satisfied that he should require the parties concerned in the alleged dispute to attend his Court in person or by pleader within a time to be fixed by him in order to put in written statement of their respective claims as respects the fact of actual possession of the subject matter of dispute Such a statement of grounds leading to the satisfaction of the Magistrate is essential to the parties to know precisely as to what persuaded the Magistrate to pass the order and as to what case they are to plead through their written statements. The preliminary order passed in this case in its relevant part, is : - "WHEREASfrom a perusal of Kalandra dated 2-11-1973 and having both the parties present with their counsels 1 am satisfied that the dispute likely to cause a breach of peace exists between the above mentioned two parties concerning shop Nos. 279 and 279A, Chowk Jama Masjid, Delhi situated within the local limits of my jurisdiction and, therefore, 1, K.N. Bose, S.D M. (Darya Ganj) hereby order that the said parties shall appear in my court (Room No. 27) 1st Floor, Tis Hazari Courts on 3rd December, 1973 at 10.00 a.m. and put in such documents in support of their respective claims." (3) The learned Magistrate at the time of passing the order ought to have taken into consideration the actual terms employed in section 145(1) of the Code which required of him to state the grounds of his satisfaction and I find that the order is arbitrary and illegal. In some exceptional case where for instance the proceedings under section 145 of the Code may have been initiated on a complaint and where the Magistrate may have examined the complainant, the statement so recorded by him may be deemed to be furnishing the grounds of satisfaction. It would be another exception where having been persuaded the Magistrate may have visited the spot and recorded the results of inquiry before passing the preliminary order. (4) I may, however, emphasise that the requirement of the statute in section 145(1) is that the order should be such which may contain the grounds leading to the satisfaction of the Magistrate which may be easily available in t ie order itself when any Court of superior jurisdiction is called upon to deal with it. If the Magistrates aie given the wide option to state that on perusal of the Kalandra they are satisfied that the order be passed then the possibility of passing stereotyped orders without actually applying their minds to the circumstances which may or may not be Prima-facie disclosing any actual apprehension of breach of peace would not be ruled out. No order which carries a taint of arbitrariness can be determined as a judicial order. (5) Exercising suo motu jurisdiction provided by section 439 of the Code I set aside the preliminary order as well as the order of attachment passed by the Magistrate on the 14th of November, 1973 and direct that the parties should appear before the learned Magistrate once again on the 7th of February, 1974 when he will hear them and pass a spealing order which may satisfy the demands of section 145(1) of the Code. --- *** ---

Author: P Safeer

Sakhi Mohd. vs State on 22 January, 1974

Delhi High Court

In the High Court of Punjab and Haryana at Chandigarh C.W.P.No.18939 of 2007 Date of Decision:08-07-2008 Des Raj ---Petitioner vs. State of Punjab and others ---Respondents Coram: HON'BLE MR. JUSTICE M.M.KUMAR HON'BLE MRS. JUSTICE SABINA Present: Mr.Vikas Mehsempuri, Advocate, for the petitioner. Ms.Charu Tuli, Sr. Deputy Advocate General, Punjab M.M.KUMAR, J. The prayer made in the instant petition is for quashing order dated 4.1.2006(Annexure P-1) passed by District Collector, Sangrur and order dated 21.8.2007 (Annexure P-3) passed by the Commissioner, Patiala Division, Patiala, directing the petitioners to deposit a sum of Rs. 39,200/- on account of deficient stamp duty Initially, the order was passed by the District Collector, Sangrur (Annexure P-1) which was upheld by the Commissioner, Patiala Division, Patiala vide order dated 21.8.2007 (Annexure P-3). A perusal of the order shows that no independent enquiry has been held to determine the market value of the property in question on the date of the sale deed before imposing additional duty of Rs. 39,200/-. C.W.P.No.18939 of 2007 -2- Ms. Charu Tuli, learned Senior Deputy Advocate General, Punjab, at the outset states that the order passed by the District Collector as also upheld by the Commissioner Patiala Division, Patiala, are non-speaking and cryptic and would not stand judicial scrutiny. Therefore, she states that both the impugned orders deserve to be set aside with liberty to the District Collector, Sangrur, to pass a fresh order in accordance with law. In view of the above, the writ is allowed, the impugned order dated dated 4.1.2006 (Annexure P-1) passed by the District Collector, Sangrur and order dated 21.8.2007 (Annexure P-3) passed by the Commissioner, Patiala Division, Patiala, are set aside. Parties through their counsel are directed to appear before the District Collector, Sangrur, on 25.7.2008. The writ petition is disposed of accordingly. (M.M.KUMAR) JUDGE (SABINA) JUDGE July 08, 2008 paramjit

Des Raj vs State Of Punjab And Others on 8 July, 2008

Punjab-Haryana High Court

ORDER J.P. Singh, J. 1. This petition under Section 482 of the Code of Criminal Procedure has been filed for quashing criminal complaint under Sections 138, 141 and 142 of the Negotiable Instruments Act pending before Metropolitan Magistrate, New Delhi. I have heard Mr. Gurdyal Singh, learned counsel for the petitioner on the point of admission and have gone through the copies of the documents placed on the file. 2. Three orders dated 31.8.2002, 22.12.2004 and 19.5.2005 are being challenged in this petition. Vide order dated 31.8.2002 the petitioners/accused person were summoned. Vide order dated 22.12.2004 the Metropolitan Magistrate has rejected two applications: (i) for recalling the summoning order and (ii) for holding that the offence should be deemed to have been compounded. In the order dated 19.5.2005 the Metropolitan Magistrate has after hearing the learned counsel for the parties noted that except representative of the company no other accused was present in the court. Learned counsel for the petitioner pleaded in the trial court that accused persons could not be informed that they had to remain present in the court because the learned counsel was under the impression that the matter was fixed for disposal of pending applications. The Metropolitan Magistrate then directed that all the accused persons should remain present on the next date of hearing. The petitioners are aggrieved. Hence this petition. 3. Briefly the facts are that the accused company had issued several cheques towards part payment against the outstanding invoices of the complainant- company. The said cheques were dishonoured due to insufficiency of funds. 4. The complainant company therefore filed a petition for winding up of the accused company. It also filed a criminal complaint under section 138 of Negotiable Instruments Act. During pendency of the said matter a compromise was arrived at and the accused company agreed to pay to the complainant Rs. 8,15,05,360/- through post dated cheques. The civil matter was compromised and the criminal complaint was also withdrawn. 5. In pursuance of the said compromise in the court, the accused company issued several cheques for the agreed amount mentioned above including the cheque in question for Rs. 17 lacs. This cheque was also dishonoured. Now several explanations are being given as to why the compromise arrived at in the court could not be accomplished, but the fact remains that the cheque was dishonoured and on this fresh cause of action the complaint has been filed under section 138 of the Negotiable Instruments Act. 6. The summoning order was passed on 31.8.2002, which was as is apparent never challenged and then the two applications were dismissed as mentioned on 22.12.2004 On 19.5.2005 only the directions were given to the petitioner/accused persons to remain present, evidently so that the case may proceed. 7. The above circumstances show that the petitioners have woken up after more than three years to challenge the summoning order. Perusal of the record prima facie shows that exemptions from appearance were granted to the petitioners/accused persons throughout and now when the Metropolitan Magistrate has sought their presence they have rushed to the High Court for stay of the proceedings and quashing of the complaint. 8. At this stage I may mention the following new provisions of the Negotiable Instruments Act: Amendment Act 55 of 2002 - Statement of Objects and Reasons - The Negotiable Instruments Act, 1881 was amended by the Banking, Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, 1988 wherein a new Chapter XVII was incorporated for penalties in case of dishonour of cheques due to insufficiency of funds in the account of the drawer of the cheque. These provisions were incorporated with a view to encourage the culture of use of cheques and enhancing the credibility of the instrument. The existing provisions in the Negotiable Instruments Act, 1881, namely sections 138 to 142 in Chapter XVII have been found deficient in dealing with dishonour of cheques. Not only the punishment provided in the Act has proved to be inadequate, the procedure prescribed for the Courts to deal with such matters has been found to be cumbersome. The Courts are unable to dispose of such cases expeditiously in a time bound manner in view of the procedure contained in the Act. 2 ... 3 ... 4 ... 5. The proposed amendments in the Act are aimed at early disposal of cases relating to dishonour of cheques, enhancing punishment for offenders, introducing electronic image of a truncated cheque and a cheque in the electronic form as well as exempting an official nominee director from prosecution under the Negotiable Instruments Act, 1881. The above provisions leave no doubt that as a result of the amendments, the matters under Section 138 are to be tried as summary cases and in Sub-section 3 of Section 143 of the Act, there is another direction that trials shall be concluded as expeditiously as possible and an endeavor shall be made to conclude the trial within six months from the date of filing of the complaint. 9. Considering all the facts and I do not find any justification for interference under Section 482 Cr.P.C., the petition is, therefore, dismissed. The trial court is directed to dispose of the matter expeditiously and preferably within three months.

Author: J Singh

Mr. Sanjay Dalmia And Ors. vs State And Anr. on 1 December, 2005

Delhi High Court

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.W.P. No. 10040 of 2009 DATE OF DECISION : 10.07.2009 Prem Nath .... PETITIONER Versus State of Punjab and another ..... RESPONDENTS CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL Present: Mr. Peeush Gagneja, Advocate, for the petitioner. *** July 10, 2009 ( SATISH KUMAR MITTAL ) ndj JUDGE SATISH KUMAR MITTAL , J. ( Oral ) The petitioner has retired as Clerk from Municipal Council, Abohar, on 30.4.2009, on attaining the age of superannuation. It is the case of the petitioner that till date, the retiral benefits have not been released, in spite of many requests made by him. In this regard, a detailed representation dated 1.6.2009 was made by the petitioner, copy of which has been annexed as Annexure P-6. In spite of that, neither any decision has been taken by the respondents nor any payment has been made to the petitioner. In view of the above, after hearing counsel for the petitioner, without issuing notice of motion as it will un-necessary delay the matter, this petition is disposed of with a direction to respondent No.4 to consider and decide the aforesaid representation dated 1.6.2009 (Annexure P-6) in CWP No. 10040 of 2009 -2- accordance with law, expeditiously, preferably within a period of three months.

Prem Nath vs State Of Punjab And Another on 10 July, 2009

Punjab-Haryana High Court

JUDGMENT Ashok Bhushan, J. 1. Heard counsel for the petitioner. 2. By this writ petition, the petitioner has prayed for quashing the order dated 19th April, 2002, 14th May, 2002 and 31" October, 2002 passed by respondents by which the punishment has been awarded to the petitioner and affirmed by the appellate as well as revisional authority. 3. Brief facts necessary for deciding the petition are; disciplinary proceedings were initiated against the petitioner under the U.P. Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991 by giving charge-sheet dated 18th March, 2001. Before submitting the charge-sheet a preliminary inquiry was also held which recommended for holding disciplinary inquiry under 1991 Rules. The preliminary enquiry report found the petitioner under influence of alcohol on 1st September, 2000 in the Police Lines. The petitioner submitted a reply to the charge-sheet. The petitioner in his reply stated that petitioner came to know on 1.9.2000 that he has been reported to be absent in Order Room on which information he went to the Order Room for recall of marking him as absent. He further stated that Sub Inspector Radhey Shyam Singh to whom petitioner went became annoyed and to harm him took the petitioner to Beli Hospital for medical examination. The petitioner denied having consumed liquor on that date. The disciplinary inquiry was held in which witnesses were examined on behalf of the Department. The Enquiry Officer found the charges proved. The Enquiry Officer also noted that petitioner has given in writing that he is not to lead any evidence, oral or documentary, in his defence. He prayed that he be sympathetically considered and proceedings be dropped. Before the Enquiry Officer Head Constable, Rameshwar Dubey and Sub Inspector Radhey Shyam Singh appeared and their statements were recorded. The disciplinary authority, i.e., the Senior Superintendent of Police vide his order dated 19th April, 2002 found the charges proved against the petitioner and agreed with the findings of the Enquiry Officer. The explanation of the petitioner that he was suffering from cold and fever and has taken cough syrup which was smelling as alcohol was not accepted. The Senior Superintendent of Police reduced the petitioner on the minimum pay scale for three years against which order appeal and revision were filed which too have been rejected. 4. Learned counsel for the petitioner, challenging the orders, contended that the petitioner on 1st September, 2000 has not committed any misconduct. The petitioner was not on duty and was marked absent. He submitted that even if the petitioner has consumed alcohol on that day he being not on duty, no charge of misconduct can be levelled on him. He further submitted that petitioner could have been charged only when he had consumed the alcohol while on duty. He has referred to Regulation 373-A of Police Regulations which provides that members of the Police Force are strictly forbidden to consume intoxicants during the course of their duty or when they may reasonably be expected to be called upon to perform an official duty. He has also referred to Rule 4-A(b) of the U.P. Government Servant Conduct Rules, 1956 which provides that government servant shall not be under the influence of any intoxicating drink or drug during the course of his duty and shall take due care that the performance of his duties is not affected in any way by the influence of drink or drug. 5. Learned counsel for the petitioner has also placed reliance on judgments reported in 1983(2) S.L.R. 159; Rattan Lal Ex-Constable v. The State of Haryana and Ors. 1983(2) S.L.R. 645; Sukhdev Singh v. The State of Punjab and Ors. ; Ram Kishan v. Union of India and Ors. and the Division Bench judgment of this Court in 2001(2) E.S.C. (Alld.) 719; Pravina Solanki v. State of U.P. and Ors. 6. I have considered the submissions and perused the record. 7. The charge, which was levelled against the petitioner, was that petitioner on 1st September, 2000 after consuming the alcohol was indulging in indecent behaviour in the Police Lines. During the inquiry the said allegation was proved by Sub Inspector Radhey Shyam Singh. The petitioner was also medically examined on the same day i.e., 1.9.2000 and the medical report was also relied during the inquiry which also confirmed that alcohol was smelling from the petitioner when he was medically examined. Before the Enquiry Officer, the petitioner did not lead any oral or documentary evidence in his defence The Enquiry Officer found the charges proved to which finding the disciplinary authority has agreed. The explanation of the petitioner that he has taken cough syrup because he was suffering from cold and fever due to which he was smelling alcoholic was not accepted by the disciplinary authority. The disciplinary authority appellate authority and revisional authority have agreed with the order awarding punishment of reducing in minimum pay scale for three years. In a writ petition challenging the findings recorded in disciplinary proceedings, the judicial review by this Court under Article 226 of the Constitution is of very limited extent. This Court in exercise of its jurisdiction under Article 226 of the Constitution while reviewing the disciplinary proceedings shall not reappraise the evidence or interfere with the findings recorded by disciplinary authority on the charge. The findings recorded in disciplinary proceedings with regard to charge can be interfered with by this Court only when the said finding is based on no evidence or can be said to be perverse. Present is not a case in which findings recorded by disciplinary authority can be said to be based on no evidence or perverse. 8. The submission of petitioner's counsel that the petitioner even if he was drunken, not being on duty, cannot be charged for misconduct also needs consideration. The petitioner's case in his reply to the charge-sheet as well as reply to the show cause notice is that on 1.9.2000 a report was submitted in the Order Room that he was found absent. Petitioner has further stated in reply that he went in the Order Room to get the said order of absent recalled. In the writ petition, in paragraph 8, the petitioner has also come up with the same case. In paragraph-8 of the writ petition, the petitioner has made following statement:-- 8. That on 1.9.2000 the petitioner was informed by the reliable sources that he has shown absent in the general diary report of Police Lines, Allahabad, therefore, the petitioner went to the Office and met to Sub Inspector, Sri Radhey Shyam Singh and made a request to treat the petitioner in duty. The S.I. Radhey Shyam Singh became angry upon the petitioner saying that the smell of wine is coming from the mouth of the petitioner and sent the petitioner for medical examination. 9. From the reply of the petitioner as well as the above mentioned averments of paragraph-8 of the writ petition, it is clear that the petitioner was protesting marking of absence on 1,9.2000 and, in fact, he went to Sub Inspector, Radhey Shyam Singh requesting him to treat on duty. At that stage it is stated that Sub Inspector, Radhey Shyam Singh became angry and told the petitioner that he is smelling alcoholic and for which he was sent for medical examination. Neither in the reply to the charge-sheet nor in reply to the show cause notice or in the writ petition the petitioner has stated that he was on leave on 1.9.2000, rather petitioner's case in the writ petition is that, he wanted that his absence recorded on 1.9.2000 be recalled and he be treated on duty. The above material lead to inference that petitioner was on duty on 1,9.2000. 10. Even if for argument sake it is accepted that petitioner was not on duty on 1.9.2000 whether he committed any misconduct needs also to be considered. Learned counsel for the petitioner has placed reliance on Section 4-A(b) of UP. Government Servant Conduct Rules, 1956. Rule 4-A of the UP. Government Servant Conduct Rules, 1926 is extracted below:- 4- A. Consumption of intoxicating drinks and drugs - A government servant shall-- (a) strictly abide by any law relating to intoxicating drinks or drugs in force in any area in which he may happen to be for the time being; (b) not be under the influence of any intoxicating drink or drug during the course of his duty and shall also take due care that the performance of his duties at any time is not affected in any way by the influence of such drink or drug; (c) refrain from consuming any intoxicating drink or drug in a public place; (d) not appear in a public place in a state of intoxication; (e) not use any intoxicating drink or drug to excess. 11. Learned counsel for the petitioner has also referred to paragraph 373- A of the Police Regulations which is extracted below:-- [373- A. Members of the Police Force are strictly forbidden to consume intoxicants during the course of their duty or when they may reasonably be expected to be called upon to perform an official duty. They are strictly warned that any violation or slightest disregard of this will be a cause for disciplinary action including removal of the officer concerned from service.] 12. Rule 4-A(d) of the Conduct Rules prohibits a Government servant to appear in a public place in a state of intoxication. Even if a Government servant is not on duty he is prohibited to appear in a public place in intoxication. In the present case the petitioner appeared under intoxication in the premises of Police Lines in front of Gadna Office. The appearance of the petitioner was in a public place. Even if the petitioner was not on duty on 1.9.2000 he could not be heard in saying that he did not commit any misconduct when he appeared in a public place in a state of intoxication. The reliance of the petitioner's counsel on Rule 4-A of the Conduct Rules does not help the petitioner in any manner in view of the specific provisions of Rule 4-A(d). The petitioner himself has filed Annexure-2 to the writ petition which is report dated 1.9.2000. In the said report petitioner's name is mentioned at Serial No. 27 and he is shown to be absent. Annexure- 2 to the writ petition reveals that the police officials mentioned in the said report numbering 27 were to appear in the Order- Room before the Circle Officer, Allahabad who was to pass order with regard to said officials. The said report was submitted at 15.00 hours on 1.9.2000. The petitioner who was to appear in the Order-Room on 1.9.2000 before the Circle Officer clearly indicate that petitioner was to appear before his superior office with regard to official business. Regulation 373-A is also attracted in the present case because on 1.9.2000 the petitioner was to appear before the Circle Officer before whom he failed to appear and was marked as absent. Thus even if he was not on duty on the said date he was reasonably expected to call upon to perform official duty on that date and Regulation 373-A clearly forbids such official to consume intoxicants. Further on 1.9.2000 when the petitioner was found in intoxicated stage R.I.-I, Rajeshwar Singh, directed the Sub Inspector Radhey Shyam and Constable Bigular Rampal Verma to take the petitioner for medical examination to Beli Hospital and it was, entered in the report that at 19.05 hours he was taken to Beli Hospital from where he returned at 20.00 hours. The petitioner was medically examined on the same day and the doctor has reported presence of smell of alcohol. 13. In above view, the submission of the petitioner that petitioner cannot be charged for having consumed liquor since he was not on duty on 1.9.2000 cannot be accepted. The petitioner has committed misconduct for which disciplinary proceedings were rightly drawn and the Enquiry Officer has found the charges proved against the petitioner. 14. The judgments relied by counsel for the petitioner of Punjab and Haryana High Court in Rattan Lal's case (supra) and Sukhdev Singh's case (supra) were cases in which it was held that constable was not in influence of liquor while on duty. That cases were on their own facts and in the present case as observed above the petitioner cannot be treated to not on duty on that date and further there was indecent behaviour in public place. The said two cases are distinguishable. Another case relied by counsel for the petitioner is Parvina Solanki's case (supra). The said case was a case of lady constable whose residence was raided at 11.30 P.M. and it was found with a male constable at her residence. This Court took the view that the constable was not on duty at the relevant time and she could not have been charged for any misconduct. The Court held that the petitioner of that case was at her residence late in the night and there was no allegation that she was on duty at that time. In paragraph 5 of the judgment the Court also observed that petitioner was not doing act in public place but at her residence. In the present case the allegation of the petitioner of being under intoxication was at public place and inquiry was rightly held against the petitioner. Another case relied by counsel for the petitioner is Ram Kishan's case (supra). The said case was a case in which constable was dismissed on the charge of abusing his superior and the Apex Court held that the punishment of dismissal was harsh and disproportionate to the gravity of charge. In facts of that case the Apex Court held that appropriate punishment would be stoppage of two increments with cumulative effect. In the present case the petitioner has not been dismissed from service. He has been reduced to minimum scale for three years. The punishment awarded to he petitioner in the present case cannot be said to be disproportionate to the charge. The judgment of the Apex Court in Ram Kishan's case (supra) does not help the petitioner in the present case. 15. None of the submissions raised by the petitioner has any substance. 16. The writ petition lacks merit and is dismissed.

Author: A Bhushan

Ram Kumar Yadav Constable Cp 1805 ... vs State Of U.P. Through Secretary, ... on 25 January, 2006

Allahabad High Court

_____ .V "W o';'-Natfasimhappa " " -- ._ VS,/AA QT.Mu(iei.ureddy " _Ap'peI.1ants 4 and 5 are minors and are " ___"""Rc3:Jrescnted by their mother Smt.Aswathamma, the first appellant and the naturai guardian ' A _ " ' V R / a. Minchanai1y,G1_zdiba:nda Tq. , ' " Koiar Dist. ...Appei1ar1ts :2: was maxi mum or KARNATAKA AT DA'i'ED THIS THE 20TH DAY or & THE I~ION'BLE mR.JUs'_rIcE AV %' _ THE Howsm MmJUs%T1cE7%';§.§i,zir:s:~:Av§rrAizAYANA msc.Fms'r 2!-Joetg BETWEEE. if ~ : 1. smtmwazaazma ' VV/o.M:£;1ddLirc€I;iyV % Narasfiiiizgppfi ' S/0.Adeppa._4.% _ s;*o.Muddut-adpay (By Smt:.S.Sushee}a, Adv. ) J/P 3.. National Insurance Company }'..:cd.,_ ' " Rep. by its Branch Managt_-flaw I 16, Kumara Krupa Road ' ~ " Near Shivananda Circle " Bangaiore 560 001. .4 2. N.Manjm1atI1a S / o. Narayanappa Vidyariagar Cross. _ Bettahaisur Post ' _ " -. Bangalore Nort11..T£éiuk;._ " 1,,-Respondents(By This is' fi1;euCiv'L.'13f1Cier'§Sec.173(1) of MV Act agajnst%1LvTt1;¢:.J:;1égmcnt% a:1'<i~--Awax»d dated 3.5.2005 passer} iI1_l\)li"iI{2.A.V1\io%.2':,f%O'x}.._ on.' the file at' the Civi} Judge (Sr.Dz'L} L % & %J%r.1Fc,J'T-.,%%':yqember and Ad(:11.MACT, Chickballapur, "..{)éi;5tIy"'a_IIowi11g the ciaém petition for compensatiorx V " seeking enhancement of C{}I3;£;'f}6I1Sati0I'L.. _ ' V. "MFA coming an for admission this day, J ., cielivcrcd the following".- JUDGEENT Tiiough the appeal was listed for admission, the was heard on merits by the consent of both the 2. The appellants am the claimants in MVCE No.2/2000 on the file of MAST, Chikkaballapur. The «b J3. Apporiiamment and disbursement of enlfraficfifiiji A' compensation amcmgsx; the claimants, shall, .: indicated in the award passed by hi 4' * 'V «V = ¢SdJmfl Iu&g% %

Author: V.Gopalagowda & K.N.Keshavanarayana

Smt Ashwathamma vs National Insurance Company ... on 20 September, 2008

Karnataka High Court

[Section 14] [Complete Act]

Central Government Act

CENTRAL INFORMATION COMMISSION Room No. 415, 4th Floor, Block IV, Old JNU Campus, New Delhi -110 067. Tel: + 91 11 26161796 Decision No. CIC /SG/A/2008/00303/1553 Appeal No. CIC/SG/A/2008/00303 Relevant FactsRespondent 1 : Joint Registrar & PIO, Indira Gandhi National Open University, Maidan Garhi, New Delhi-110068. RTI application filed on : 08/08/2008 PIO replied : 19/08/2008 First appeal filed on : 10/11/2008 First Appellate Authority order : 20/11/2008 Second Appeal filed on : 05/12/2008 emerging from the Appeal Appellant : Mr. Ramesh Kumar Pandita, Qrt. No. 8, C.S.D. Residential Complex, Kirby Place, Delhi Cantt, New Delhi. The appellant had asked in RTI application regarding copy of the minutes of the meeting of the Academic Committee etc. Detail of required information:- S. No. Information Sought. The PIO replied. 1. Name of the members of the Academic Committee The PIO had provided constituted by the Vice-Chancellor to finalise the list of the replied copy to the candidate who were eligible for the award of the University appellant. Cold Medals at the 17th Convocation 2. A copy of the minutes of the meeting of the Academic As above. Committee containing the list of the candidates eligible for the award of the University Gold Medals in different programmes for the 17th Convocation. 3. Information with regard to un-suitability of students for the The committee did not find award of the University Gold Medal for DCYP & PGDHE any student eligible for programme for the 17th Convocation. award of Gold Medal for DCYP & PGDHE as per rules. The First Appellate Authority ordered: - "The minutes of the meeting of the Academic Committee containing the list of the candidates eligible for the award of the University Gold Medals in different programmes is placed in file as Annexure "A". Candidate eligible for Gold Medal in BHM Programme will be decided later. No student is found suitable for the award of the Gold Medal for DCYP and PGDHE programme." Relevant Facts emerging during Hearing: The following were present Appellant: Mr. Ramesh Kumar Pandita Respondent: Mr. Ved Prakash on behalf of Mr. O.P. Bangia PIO The PIO will provide the list of Gold medalists of 18 January 2006, signed by the Committee to the appellant. The appellant insists that he should be shown notes giving the method of selecting or rejecting candidates for award of the Gold medal. The PIO states there is no such record. The PIO will give this information to the appellant in writing. The appellant points out that there are two different lists of Gold medalists approved by two Committees on 18 and 19 January 2006. There are obvious differences in the names of Gold medalists in the two lists. Further the list on 19 January does not have the name of S. Kathiyayani who is shown as Gold medalist in the list of 18 January. The appellant contends that he is being given false and misleading information. There appears to something seriously wrong if the University has two different lists of Gold medalists on two days. The Vice Chancellor of the University is directed to report on which is the correct list and the reasons for the two different lists on two consecutive days. Decision: The Appeal is allowed. The PIO will provide the information described above to the appellant before 25 February 2009. The Vice Chancellor will send the report explaining the two different lists of Gold medalists to the Commission and the appellant before 25 February 2009. This decision is announced in open chamber. Notice of this decision be given free of cost to the parties. Shailesh Gandhi Information Commissioner February 09, 2009. (In any correspondence on this decision, mentioned the complete decision number.)

Mr. Ramesh Kumar Pandita vs Indira Gandhi National Open ... on 9 February, 2009

Central Information Commission

JUDGMENT Dalal, J. 1. I feel considerable difficulty in deciding this matter because both the subordinate Courts have gone wrong in certain particulars. They have differed in opinion. The trial Magistrate was of opinion that the opposite party should be bound over, while the appellate Court discharged the order of the Magistrate. The Magistrate has made the mistake so often commented upon by this Court of treating all the accused in a lump without discrimination and without an attempt to discover which of them was likely to commit a breach of the peace. After, reading the evidence I have not the slightest doubt that Sirajuddin is in some danger of being submitted to physical force by some of the Jats of his village. The difficulty exists in the confusion caused by the trial. Court treating all the accused persons as if they formed one single individual. The appellate Court has gone wrong in his opinion that to bind over persons it is not sufficient to prove a danger of the breach of the peace but further it must be proved that the accused were guilty of some overt act towards a breach of the peace. There is no such necessity and I emphatically disagree with any such opinion expressed by any High Court. The ruling referred to by the Sessions Court, Mathura Sahu v. Emperor [1916] 14 A.L.J. 769 is not available in this Court. Counsel for the opposite side has referred me to a Lahore ruling, Joti Sarup v. Emperor A.I.R. 1926 Lah. 689 in which such an opinion may be said to have been expressed by a Sessions Judge. There is no opinion of the High Court. The Sessions Judge's opinion is merely by the way as to the absence of any single overt act and no principle is laid down by the High Court. An overt act towards a breach of the peace would be a substantive offence to be dealt with under the Indian Penal Code.S. 107 is one appearing in a chapter devoted in the Criminal Procedure Code to the object of preventing a breach of the peace, and to prove the existence of circumstances which may lead a reasonable man to apprehend a breach of the peace It need not always be necessary to prove also an overt act towards a breach of the peace on behalf of any of the accused. The learned Judge has further expressed other opinions with which. I entirely disagree. He was of opinion that if the complainant was assaulted and beaten during the proceedings that would not be any evidence to bind over the opposite party because such evidence as existed at the time of the institution of the proceedings could only be used. This will be taking a very narrow view of criminal responsibility, and it is obvious that the learned Sessions Judge's mind was dwelling on circumstances which would be considered in a civil suit where a cause of action that accrued subsequent to the filing of the suit would not be noticed by a civil Court. 2. In a criminal case, if the accused persons, seeing proceedings under Section 107, Criminal P.C. against them pending, attempted to commit a breach of the peace such evidence would be the best evidence to prove their intention to commit a breach of the peace. I am thus in disagreement with the general view taken by both the subordinate Courts, and I have got to arrive at a decision independently on the evidence on the record. That evidence has satisfied me that though the mosque was built a long time ago there is friction at present between the complainant and the Jats over the taking out of some Hindu procession. Rightly or wrongly the complainant as Imam of the mosque objects to the procession, while the Jats appear to be keen on taking one out. There is an existing source of dispute. This was further proved by a dead pig, an animal suffering under particular contempt of the Mahomedans, being left in the mosque. There is certainly a danger of the breach of the peace, and that danger exists in reference to the complainant and is likely to proceed from the Jats of the village. My difficulty, however, is to discover the persons among the accused who are likely to commit such a breach. As I have already pointed out, the trial Court has treated the cases of all the opposite parties in a lump. The complainant has mentioned different persons at different times as bearing a grudge against him. So far as I can make out the only persons who are definitely mentioned out of the accused are Jaggu, Sheonath and Indar about whom he made a report to the police on 16th February 1926, (Ex. A-2). No doubt the report was made a long time ago, but the same dispute is still simmering. They are the only persons out of the accused about whom it could be definitely said that they are among those Jats who contemplate a breach of the peace. I cancel the order of the Sessions Judge with regard to Jaggu, Sheonath and Indar and restore the order of the Magistrate with regard to them. The bonds and sureties given by them shall again become operative. As to the rest, I do not find definite individual evidence against them and I dismiss the application for revision as regards them.

Author: Dalal

Emperor vs Jiwan Singh And Ors. on 17 January, 1930

Allahabad High Court

Gujarat High Court Case Information System Print SCA/5529/2003 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 5529 of 2003 With SPECIAL CIVIL APPLICATION No. 21935 of 2006 To SPECIAL CIVIL APPLICATION No. 22056 of 2006 ========================================================= PWD EMPLOYEES UNION & 6 - Petitioner(s) Versus STATE OF GUAJRAT & 3 - Respondent(s) ========================================================= Appearance : MR SHALIN N MEHTA for Petitioner(s) : 1 - 7. MR SHIVANG SHUKLA, AGP for Respondent(s) : 1 - 4. NOTICE SERVED BY DS for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE RAVI R.TRIPATHI Date : 21/10/2010 ORAL ORDER Learned Advocate Mr.Mehta for the petitioners states that during the pendency of the appeals before this Court, the authorities are kind enough to consider favourably 5 prayers, out of 8. He requested that if learned AGP can take up the matter with the instructing respondents to consider the request for remaining 3 prayers. The matter is kept on 27.10.2010 at 02.30. To be notified in a separate Board. (Ravi R.Tripathi, J.) *Shitole     Top

Author: Ravi R.Tripathi,&Nbsp;

Pwd vs State on 21 October, 2010

Gujarat High Court

ORDER B.N. Jha, J. 1. A criminal case, Stats v. Sidhang Mahton, is pending before Mr. H.N. Chandra, Munsif-Magistrate, first class, Jamui. It has a chequered history. The alleged occurrence had taken place on the 10th August, 1963. The petitioner went to the Officer-incharge, Sikandra police station in the district of Monghyr to lodge information with respect to offence under Sections 395 and 460 of the Penal Code but the latter refused to do so. Thereafter he went to the Superintendent of Police, Monghyr, and, according to his instruction the petitioner lodged an information before the inspector of police, Jamui, on the 11th August, 1963. The case of the petitioner was that the opposite party 1 was trying to uproot the petitioner and the members of his family from the ancestral house in village Parsadda, police station Sikandra, district Monghyr. On the 17th October, 1962, there was a proceeding under Section 144 of the Criminal P.C. in respect of the house and other land. The learned Sub-divisional Magistrate, Monghyr, found possession of the petitioner over the house. According to the case of the petitioner, opposite party 1, along with twelve other persons, forcibly entered the house of the petitioner in his absence and threatened the inmates to leave the house on the 7th August, 1963. In the occurrence, the petitioner's sons were assaulted and movable properties were also looted away by them. Upon this, the petitioner's son, Mauleshwari Mahto, filed a complaint in the court of the Sub-divisional Magistrate, Jamui, against them, who summoned opposite party 1 and the twelve other persona. The case was sent for trial before Mr. M.P. Gupta, Munsif-Magistrate, Jamui. 2. On the 10th August, 1968, at about 10 A.M. opposite party 1 along with 28 other persons variously armed with gun, lathi and bhala, entered the house of the petitioner, assaulted his wife and children and forcibly ousted the inmates and looted away all the properties of the house of the petitioner. As stated above, the petitioner lodged information before the inspector of police, Jamui who started a case under Sections 144, 448 and 352 of the Penal Code against opposite party 1 and 28 others, though the first information report disclosed offences under Sections 395 and 460 of the Penal Code. G.R. Case No. 587 of 1968 was started. 3. The inspector of police examined a large number of witnesses in support of the prosecution case. There was an unusual delay in the submission of charge-sheet. The petitioner apprehended collusion of the investigating Officer with opposite party 1 and 28 other persons and so he filed a protests cum complaint petition before the Sub-divisional Magistrate, Jamui, on the 13th December, 1963, and prayed that either a charge-sheet against the 19 accused persons be called for or to summon them for trial. The complaint petition was registered as G.R. Case No. 495C of 1963 and was kept pendig till submission of charge sheet. The police submitted charge-sheet against opposite party 1 alone under Section 448 of the Penal Code and the other 28 persons were left out. The petitioner thereupon filed a petition for summoning the other accused persons as there was ample evidence against them also. On the 18th March, 1964, the learned Sub-Divisional Magistrate, Jamui, after perusing the case diary and examining the petitioner on solemn affirmation directed the trial of opposite party 1 by Mr. M.P. Gupta, Magistrate, first clase, observing therein that the trying magistrate after perusing the preliminary evidence may take action against the other accused persons named in the first information report. He also ordered amalgamation of the complaint case with the police case, viz., G.R. case No. 587 of 1963. 4. On the 25th August, 1964, Mr. M.P. Gupta framed charges against Opposite party 1 under Sections 144, 380 and 452 of the Penal Code and ordered that the decision as to summoning of the 28 other accused persons would he taken up after taking evidence. He examined three witnesses and was to pass an order on the 28th September, 1963, as to the summoning of the 28 other accused persons, font Opposite party 1 filed an application on the 24th September, 1964, before the magistrate that he was going to file a transfer application of the case from his Court. Thereafter, on the 25th January, 1965, by the order of the Sessions Judge, Monghyr, the case was transferred from the Court of Mr. M.P. Gupta, to the Court of Mr. G.N. Chandra, Munsif Magistrate, first class, Jamui. On the 80th July, 1965, the petitioner filed an application before the Munsif Magistrate Jamui, praying for summoning seven Witnesses named in his petition as they were material for the case, but the police had left them out to be included in the chargesheet. Upon the aforesaid application the Munsif-Magistrate ordered that the matter would be considered after the charge-sheet witnesses were examined. The examination of the charge. sheet witnesses was over on the 21st January, 1966. but the learned Magistrate did not apply his mind to the desirability of summoning and examining the seven witnesses as was directed by him on the petition of the petitioner dated the 30th July, 1965, nor did he apply his mind as to the previous order in the case passed on the 25th August, 1964, that the decision as to the summoning of other 28 accused persons would be taken up after taking evidence and closed the prosecution case. He examined the accused Opposite party 1 under Section 312 of the Criminal P.C. and fixed the 14th February, 1963, for the examination of the defence witnesses. 5. In the meantime, when the petitioner came to know about the fact that the Court had closed the prosecution case on the 21st January, 1966, he filed a petition on the 3rd February, 1966, through his private lawyer praying to summon the seven witnesses, who were witnesses to the occurrence in question as the police in collusion with Opposite party 1 had left them out to be included in the chargesheet witnesses though they had been examined before the investigating Officer and' supported the prosecution case. The Assistant District Prosecutor did not join in this application. The learned Munsiff Magistrate by his order dated the 19th February, 1966, rejected that application of the petitioner dated the 3rd February, 1966, on the ground that the prosecution case had been dosed on the 21st January, 1966, and the accused was also examined under Section 842 of the Criminal P.C. on that date as the private lawyer of the petitioner, who was present on the 21st did not move for summoning the witnesses when the Assistant District Prosecutor verbally asked the Court to close the prosecution case. Being aggrieved by this order, the petitioner moved the Sessions Judge. Monghyr, for making a reference to this Court for directing the Munsif-Magistrate to summon the seven witnesses in the case, but his prayer was not granted by the court. Hence, the petitioner, has some in revision to this Court. 6. Mr. A.K. Dutt, learned Counsel appearing for the petitioner, has submitted that the learned Magistrate was not justified in closing the prosecution case without deciding the matters, which were deferred to be considered after the examination of some witnesses. The learned Magistrate by his previous order dated the 25th August, 1964, had passed an order that the decision as to summoning the other 23 accused persons should be taken up after taking evidence in the case. Secondly, the learned Magistrate by his order dated the 30th July, 1965, had passed an order on the application of the petitioner to summon seven witnesses named in it that the matter would be considered after the chargesheet witnesses were examined, but he did not apply his mind to the above matters which were to be decided before the prosecution case was closed. There, fore, learned Counsel urged that the learned magistrate was not justified in refusing to examine the seven witnesses when his attention was drawn by the petitioner by his application dated the 3rd February, 1966, praying to him that the seven witnesses were material for the case of the prosecution and they should be examined. Learned Counsel drew my attention to the order dated the 17th and the 18th March, 1964, passed in G.K. Case No. 495 of 1963. As stated above, after the petitioner lodged a first information report before the inspector of police, Jamui, G.R. Case No. 687 of 1963 was started against opposite party 1 and the police submitted chargesheet under Sections 144, 443 and 842 of the Indian Penal Code though the first information report disclosed offences under Sections 395 and 460 of the the Indian Penal Code against 23 persons besides opposite party 1. That case was transferred to the court of Mr. M.P. Gupta, Magistrate, first class. Before the submission of the chargesheet, the petitioner apprehended collusion of the police with the accused persona and hence he filed a protest petition cum complaint on the 16th December, 1968, and G.R. case No. 495C of 1963 was started. In this case the learned Subdivisional Magistrate by his order dated the 17th March, 1964, directed that the case be amalgamated with G.R. Case No. 587 of 1963. On the 18th March 1964, he examined the petitioner on solemn affirmation and directed the case to be amalgamated with G.R. Case No. 587 of 1963. The case was transferred to the court of Mr. M.P. Gupta, Magistrate, first class, where G.R. case No. 537 of 1963 was pending for disposal. In these ciroumatan3es of the case, the petitioner was vitally interested in the case pending before Mr. M.P. Gupta. Therefore Mr. Dutt contended that the Magistrate was bound to summon and examine the seven witnesses prayed for by the petitioner. He relied on the provisions of Section 251A(7) and Section 252 of the Code of Criminal Procedure. Section 251A(7) of the Code lays down the procedure for a police case and Section 252 for the complaint case. Section 251A(7) and Section 252 of the Code read as follows: 251A(7). - On the date so fixed, the Magistrate shall proceed to take all such evidence as may be produced in support of the prosecution; Provided that the Magistrate may permit the cross examination of any witness to be deferred until any other witness or witnesses have been examined, or recall any witness for further cross-examination. 252(1).- In any case instituted otherwise than on a police report, when the accused appears or is brought before a Magistrate, Such Magistrate shall proceed to hear the complainant (if any) and take allseed evidence as may be produced in support of the prosecution: Provided that the Magistrate shall not be bound to hear any person as complainant in any ea3e in which the complaint has been made by a Court. (2) The Magistrate shall ascertain from the complainant or otherwise, the names of any persons likely to be acquainted with the facts of the case and to be able to give evidence far the prosecution, and shall summon to give evidence before himself such of them, as he thinks necessary. Learned Counsel submitted that even according to Section 251A(7) the Magistrate was bound to take such evidence as may be brought in support of the prosecution. The petitioner filed an application to summon seven witnesses, five of whom were eye-witnesses to the occurrence and though they were examined by the investigating officer, they were not mentioned by the police in the chargesheet as witnesses in order to help the accused persona and, therefore, the petitioner prayed that these witnesses be summoned and examined. In fact, the Magistrate had deferred the examination of those witnesses after the chargesheet witnesses were examined. Mr. Parmeshwar Prasad Sinha, learned Counsel for the opposite party, on the other hand, submitted that the witnesses were not produced on the 21st January, 1966, when the prosecution case was closed. Under Section 251A, of the Code the learned Magistrate was not bound to summon. For this he relied on a decision of the Allahabad High Court in State v. Ram Lal 1961 (2) Cri LJ 331 (All). No doubt the decision supports his contention to some extent. But this Court in the case of State of Bihar v. Polo Mistry has held that where the prosecutor in a criminal trial has himself undertaken to produce the prosecution witnesses, the entire responsibility for the production, of the evidence in support of the prosecution case is that of the prosecutor: but when the prosecutor has taken recourse to the agency of the Court for securing the : attendance of the prosecution witnesses, it is undoubtedly the duty of the Magistrate to take steps for souring the attendance of the prosecution witnesses in his Court. I respectfully agree with the view taken by G.C. Prasad J., in the Patna case. Mr. Parmeshwar Prasad Sinha further contended that in a police case the informant have got no locus standi. It is the State, which is the prosecutor. Learned Counsel in support of his view has relied on the observation of the Supreme Court in Thakur Ram v. State of Bihar at p. 917, where it has been stated that in a case which has proceeded on a police report a private party has really no locus standi. But at the same time the decision says that barring a few exceptions in criminal matters, the party which is treated as the aggrieved party is the State, which is the custodian of social interest of the community at large. Therefore, this principle that in a police case a private party has really no locus standi is not of universal application, but subject to certain exceptions. Suppose for instance that there is a murder case. The police in collusion with the accused has left out most important eye-witnesses by excluding them as witnesses in the chargesheet. At the time of the examination of witnesses the in. formant, who is the private party, files an application in Court that the police in collusion with the accused has left out certain eye. witnesses, which are material witnesses in the case and they be examined. Gould the Court in such circumstances refuse to consider his application on the ground that the private party has got no locus standi. The present case comes within one of such exceptions as contemplated by the Supreme Court. Therefore, the stand taken by Mr. Parmeshwar Prasad Sinha is not tenable. Besides this, the present case partakes the nature of both the police case as well as complainant case. G.R. Case No. 4950 of 1963 was amalgamated by the order of the Magistrate with the police case No. 537 of 1963. According to the provisions of Section 252 of Criminal P.C. the Magistrate shall proceed to hear the complainant and take all such evidence as may be produced in support of the prosecution case instituted otherwise than a police report. A duty is also cast on the Magistrate to ascertain from the complainant or otherwise the names of any person likely to be acquainted with the facts of the case and to be able to give evidence for the prosecution and he shall summon him to give evidence before himself such of them as he thinks necessary. 7. Therefore, in the circumstances of the present case before the closing of the case the Magistrate ought to have ascertained from the complainant whether some more witnesses were necessary to be examined in the case. The petitioner had already filed an application for summoning seven witnesses in the case and the desirability of examining those witnesses was to be decided by the Magistrate after the close of the evidence of the charge sheet witnesses. Therefore, the refusal by the Magistrate to examine those witnesses was not justified in the circumstances of the present case. Moreover, the examination of the seven witnesses assumes very great importance on account of the fast that the Magistrate by his order dated the 25th August, 1964, passed in G.R. Case No. 537 of 1963, has stated that the summoning of 28 accused persons for trial would be considered after some witnesses were examined. The learned Magistrate before closing the case ought to have decided whether or not the other 28 accused persons as alleged by the prosecution should also be brought on trial. But he did not apply his mind to this aspect of the case also and closed the prosecution case. The facts stated in the first information report as well as the protest petition disclosed offences under Sections 395 and 460 of the Penal Code, which are triable only by the Court of session. In such case, the present proceeding could be only treated as a commitment enquiry for commitment of the accused. Therefore, in view of the various allegations in this case, it is desirable that the seven witnesses named by the petitioner should be examined in the case. The Magistrate ought to have applied his mind to the previous orders of the Court dated the 25th August, 1964, and the, 30th July, 1965, before closing the prosecution case. 8. In the result, the application is allowed, the orders of the learned Magistrate dated the 21st January, 1966, closing the case of the prosecution and dated the 19th February, 1966, refusing to summon the seven witnesses named by the petitioner are get aside and the learned Magistrate is directed to summon the seven witnesses as prayed for by the petitioner and examine them, if produced, and then proceed according to law.

Author: B Jha

Narayan Mahton vs Sidhang Mahton And Anr. on 21 November, 1967

Patna High Court

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

Central Government Act

Gujarat High Court Case Information System Print SCA/11100/2010 3/ 3 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 11100 of 2010 ========================================= BHARAT SANCHAR NIGAM LIMITED THRO'ASSISTANT GENERAL MANAGER - Petitioner(s) Versus STATE OF GUJARAT THROUGH SECRETARY & 3 - Respondent(s) ========================================= Appearance : MR GAURANG H BHATT for Petitioner(s) : 1, MS JIRGA JHAVERI, AGP for Respondent(s) : 1, NOTICE SERVED BY DS for Respondent(s) : 1 - 2, 4, MR ASHISH M DAGLI for Respondent(s) : 3, ========================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 18/02/2011 ORAL ORDER1. By way of this petition under Article 226 of the Constitution of India the petitioner-BSNL has prayed for an appropriate writ, order or direction directing the Junagadh Municipal Corporation to deliver 629.11 sq meter of land out of land bearing Survey No. 359 as described in the registered sale deed no. 1124 dated 30/03/2004. 2. It is also further prayed to quash and set aside the impugned letters cum orders dated 05/04/2002, 11/04/2002 and 03/11/2008 issued by respondent no. 4 i.e. Administrator, Datar Estate & Mamlatdar, Junagadh. 3. Having heard Shri Gaurang Bhatt, learned advocate appearing on behalf of the petitioner, Ms. Jirga Jhaveri, learned AGP appearing on behalf of respondents nos. 1, 2 and 4 and Shri Nirav Sanghvi, learned advocate appearing on behalf of respondent no. 3 admittedly it appears that the petitioner has purchased 629.11 sq meters of land out of the land bearing Survey No. 359 paiki situated at Junagadh by registered sale deed dated 30/03/1994. It appears that when the petitioner started putting up construction of the compound wall and gave advertisement in the newspaper and invited tenders for the same the State authorities objected to the same vide communications dated 05/04/2002, 11/04/2002 and 03/11/2008 on the ground that the petitioner is not the owner of the land in question. It appears that subsequently after the present petition was filed the aforesaid communications by respondent no. 4 are already withdrawn, and, therefore, as such, as on today, there is no dispute with respect to the ownership of the land bearing Survey No. 629.11 sq meters of land out of the land bearing Survey No. 359 paiki. However, it appears that there is some dispute with respect to the description of the property purchased by the petitioner. There is a dispute that which portion of the land admeasuring 629.11 sq meter out of the land bearing Survey No. 359 paiki was purchased by the petitioner. From the communication dated 24/12/2010 by the Deputy Commissioner, Junagadh Municipality addressed to the petitioner, it appears that, according to respondent no. 3 possession of the land as per the description in the sale deed dated 30/03/1994 has already been handed over to the petitioner. From the communication dated 24/12/2010 it appears that the description, which is given is about the entire land of Survey No. 359 paiki and not with respect to the land bearing Survey No. 629.11 sq meter out of the land bearing Survey No. 309 paiki. It is to be noted that in fact it is not the case on behalf of the petitioner that the petitioner had purchased the land bearing Survey No. 359 paiki. Thus, the communication by the Deputy Commissioner, Junagadh Municipality dated 24/12/2010 cannot be considered. In the facts and circumstances of the case, this Court is of the opinion that if the joint meeting of the representative of the petitioner; Commissioner of respondent no. 3 Municipality and the Collector is held only for the limited purpose of demarcation of the land admeasuring 629.11 sq meter of land out of the land bearing Survey No. 359 paiki, which has been purchased by the petitioner by registered sale deed it will meet the ends of justice. The aforesaid exercise shall only be for the purpose of demarcation of 629.11 sq meter of land out of the land bearing Survey No. 359 paiki in favour of the petitioner. The Collector, Junagadh is hereby directed to see that the Joint meeting of the petitioner, Commissioner of respondent no. 3 Municipality and the Collector is held at the earliest and appropriate decision is taken at the earliest but not later than three months from the date of receipt of the present order. Thereafter, it will be open for the petitioner to initiate appropriate proceeding for getting peaceful and vacant possession, which is demarcated and to remove the encroachment and/or to get back peaceful possession. 4. With this, the present petition is disposed of. (M.R. SHAH, J.) siji     Top

Author: M.R. Shah,

Bharat vs State on 29 September, 2011

Gujarat High Court

Court No. - 53 Case :- APPLICATION U/S 482 No. - 25708 of 2010 Petitioner :- Mahboob And Others Respondent :- State Of U.P. & Another Petitioner Counsel :- Parameshwar Yadav Respondent Counsel :- Govt. Advocate Hon'ble Shri Kant Tripathi,J. 1. Heard the learned counsel for the applicants and the learned AGA for the State and perused the record. 2. The applicants ( Mahboob, Jaharuddin, Amirunnisha, Israeel and Maqbul) have filed this petition under section 482 of the Code of Criminal Procedure for quashing the proceedings of Case No. 238 of 2009 (Ruksana Vs. Mahboob and others), under sections 498A IPC and section 3/4 of the Dowry Prohibition Act, P.S. Nautanawa, District Maharajganj pending in the court of the Judicial Magistrate, Maharajganj. 3. The dispute is between the husband and wife. Considering the circumstances that relationship between husband and wife may not further undergo any bitterness, the matter may be considered for settlement by process of mediation. 4. The counsel for the applicants state that the applicants are ready for settling the dispute by mediation and are willing to deposit a sum of Rs. 8,000/- (Rs. Eight thousand ) towards maintenance and expenses of the wife (Victim) for appearing before the Mediation Centre. 5. Notice on behalf of the State of U.P. and State officials has been accepted by the AGA. Issue notice to respondent no.2 (Ruksana) by registered post. List for admission after service upon the private respondent. 6. In the meantime, no coercive process shall be issued or executed against the applicants. 7. The question of referring the case to the Mediation Centre will be considered after service upon the private respondent. It is made clear that in case the private respondent agrees for referring the case to the Mediation Centre then it will be referred to the Mediation Centre and the stay order will be further continued only if the applicants deposit the Bank Draft at least of the aforesaid amount in favour of the wife (victim). Order Date :- 10.8.2010 MTA

Mahboob And Others vs State Of U.P. & Another on 10 August, 2010

Allahabad High Court

ORDER N.K. Bajpai, Member (T) 1. These two reference applications have been filed under Section 130 of the Customs Act, 1962 and Section 82B of the Gold Control Act, requiring the Tribunal to refer to certain questions of law arising out of its Final Order No. A/154 to 156/92-NRB, dated 6th April, 1992. It has been stated in the application that the Tribunal has not taken into account the following material facts in deciding the appeals which were urged during the course of arguments :- (a) Searches of the business and residential premises of the applicant and his father at Bharatpur were conducted by the Officers of Customs & Central Excise, Jaipur at Bharatpur on 13-9-1986 in the presence of the applicant's father, Shri Kunwar Chand, but in spite of that his statement was not recorded in respect of the seizure of gold and currency from the applicant at Jaipur on 12-9-1986. Shri R.S. Gotecha, Superintendent of Customs, Jaipur was a member of the said party. (b) The applicant was arrested by the Officers of Customs & Central Excise at Jaipur on 11-9-1986 as admitted by Shri R.S. Gotecha, Superintendent in his cross-examination in the adjudication proceedings on 29-6-1987 and as the same fact appeared in a news item in a daily Newspaper with the consent of the Department. (c) The applicant was produced in the Court only on 14-9-1986 and that too after the applicant's father Shri Kunwar Chand had made an application in the Court on 13-6-1986 for the release of the applicant on bail. (d) The applicant was, thus, kept in illegal confinement for three days in violation of the constitutional mandate of Article 22 of the Constitution of India, Section 57 of the Cr. P.C., Section 104 of the Customs Act and Section 68 of the Gold (Control) Act. (e) The statements alleged to have been made by the applicant during long confinement were not even consistent. (f) Through the telegram dated 19-9-1986 and the complaints dated 19-9-1986 made by the applicant and his father, complete explanation had been given in respect of acquisition of the seized gold and currency. (g) There is a marked distinction between the term "imported" and "smuggled" goods. (h) The Rules under the Gold (Control) Act, 1968 recognised that purity of gold to the extent of 995 could be obtained in India. 2. The following questions of law arise out of the order :- I. As to whether the finding of this Hon'ble Tribunal that the statements alleged to have been made by the applicant are voluntary is perverse because the material facts which could vitiate these statements have not been taken into account in the order? II. As to whether this Hon'ble Tribunal is correct in law in observing that it is a settled law that insofar as these statements incriminating the maker himself are concerned, they have to be accepted. III. As to whether this Hon'ble Tribunal is correct in law in holding the statements alleged to have been made by the applicant to be voluntary and acting thereon, merely because the same contain wealth of details notwithstanding the fact that this Hon'ble Tribunal has found some of the details to be inconsistent and unacceptable? IV As to whether this Hon'ble Tribunal is correct in determining the gold to be of foreign origin because its purity is as high as 23.5 carat? V. As to whether, in the facts and circumstances of the case, this Hon'ble Tribunal is legally correct in drawing an inference that the version that the gold was obtained as a result of melting of gold ornaments by Shri Kali Charan, goldsmith is incorrect because of certain markings on three out of four pieces and high purity of the gold? VI. As to whether this Hon'ble Tribunal is correct in upholding confiscation of gold and imposition of a penalty on the applicant without a finding as to the contraventions which, according to them, were established? VII. As to whether the Honb'le Tribunal is legally correct in rejecting the contents of the statutory record maintained by Shri Kali Charan, goldsmith? 3. Arguing on the application, Shri Harbans Singh, the learned Counsel submitted that the question of arrest of Shri Umesh Chand Goyal on 11th September, 1986 has not been considered by the Tribunal. The fact that he was arrested on 11th September, 1986 has been brought out in the cross-examination of Shri R.S. Gotecha, Superintendent, before the learned Collector in the following words :- "...If I remember correctly, Shri P.K. Sharma had arrested him on 11-9-1986. The news item was given by the officer and not by me...." 4. The learned Counsel submitted that after his arrest on 11th September 1986, Shri Umesh Chand Goyal was produced before the Magistrate on 13th September 1986 and his statements were recorded while he was in custody. These statements could not, therefore, be taken to be voluntary, having been recorded in custody under threat and coercion. Such statements could not be relied upon. Moreover, the statements were retracted by a telegram, dated 19th September 1986, which fact, again had not been considered by the Tribunal in its order. Once the retraction is taken into account and the statements are not accepted as voluntary, there will be no evidence against Shri Umesh Chand Goyal for recording a finding of guilty against him. Shri Habans Singh submitted that the Tribunal had not considered the matter for purposes of proceedings under the Customs Act, 1962 and, in the absence of any evidence that the seized gold was smuggled gold, no offence could be made out under the Customs Act. No penalty could, therefore, be imposed under the aforesaid Act. He, therefore, submitted that the first three questions listed by him arose out of the order of the Tribunal excepting the statement of Shri Umesh Chand Goyal to be voluntary. 5. As regards question No. TV, Shri Harbans Singh submitted that the inference that because of high purity, the gold was of foreign origin was not permissible in law. Moreover, there is a distinction between "imported" gold and "smuggled" gold and the Tribunal had not taken this distinction into consideration before passing the order. Referring to question at V, Shri Harbans Singh submitted that the defence version was that the gold was obtained by melting of gold ornaments by Shri Kali Charan and the Tribunal had drawn different inference because of the presence of certain markings on three out of four pieces as also because of the high purity of the gold. Such an inference was not permissible. He also submitted that whether the imported gold is smuggled gold is a question of law and high purity of gold alone cannot be determinative of the smuggled nature of the gold. 6. In support of his arguments, Shri Harbans Singh placed reliance on the following judgments : (a) Gian Chand and Ors. v. State of Punjab - AIR 1962 SC 496 (V 49 C75) (b) The Commissioner of Income-tax, West Bengal II, Calcutta v. Radha Kishan Nandlal - AIR 1975 SC 893 (c) Nataraj Stores, Trivandrum v. Supdt. of Central Excise, Trivandrum and Anr., Kerala - AIR 1965 13 (V 52 C4) (d) KTMS Mohd and Anr. v. Union of India & Amanulla Quareshi v. Union of India - JT 1992 (3) SC 129. 7. Shri V.K. Sharma, the learned Departmental Representative submitted that except question at II, all other questions were questions of fact, he placed reliance on the judgment of the Supreme Court in the case of Sir Shadi lal Sugar and General Mills Ltd. and Anr. v. Commissioner of Income Tax, New Delhi [1987 (31) E.L.T. 325 (SC)] and submitted that the Apex Court had very clearly held in paragraphs 14 to 16 of this judgment that no reference would lie on questions of fact unless it appeared that there was no evidence before the Tribunal upon which, they, as reasonable men, come to the conclusion to which they have come. If this test is applied to the questions raised in the application, it would be seen that the learned Counsel was arguing on questions of fact alone. He also submitted that the import of gold was not permissible since 1947 and even if the provisions of Section 123 of the Customs Act had not been invoked, it could not be said that the gold of such high purity as 23.5 carats had been imported into India lawfully. 8. Referring to the question that the statements recorded from Umesh Chand Goyal were not voluntary, he submitted that the statements were recorded in his handwriting and the Tribunal, after considering all the pleas raised in the appeal, those raised during the hearing and after considering the records, rejected the plea for reasons recorded in paragraph 17 of its order. The plea now taken that the Tribunal have not considered as many as 8 arguments raised before it by the learned Counsel during the hearing of the appeal is not correct. This would appear from the detailed order of the Tribunal. He also submitted that the learned Counsel had not produced any documentary evidence such as a medical examination report on Shri Umesh Chand Goyal after his production before the Magistrate. He reiterated that all the questions raised are questions of fact requiring appreciation of evidence and it cannot be said that the conclusions of the Tribunal have resulted in a perverse finding. He, therefore, submitted that the application be rejected. 9. We have carefully considered the application and observe that the submissions of the learned Counsel are recorded in paragraphs 9 to 12 of the order of the Tribunal in which, he had, inter alia, challenged the findings of the learned Collector about the smuggled nature of the gold, the finding that higher purity of gold could not be a ground for holding that the gold was of foreign origin, and the conclusion that Shri Umesh Chand Goyal had not made any allegation of threat, coercion and physical torture in the Court when he was produced before the Magistrate on 13th September 1986. In paragraph 16 of its order, the Tribunal has mentioned about having carefully considered the appeal, the submissions made at the hearing and also having perused the case records. 10. We also observe that the submissions of the learned Counsel have been recorded in considerable detail and the submission about the retraction of the statement is also recorded in paragraph 15. There is also a mention of the fact in paragraph 11 - in the concluding sentence of paragraph 11 - that no statement was recorded from appellant No. 2. We are unable to accept the plea of the appellant now raised on a question of fact about the date of the arrest of Shri Umesh Chand Goyal on the basis of cross-examination of Shri R.S. Gotecha, Superintendent. Even otherwise, this is a question of fact and cannot become the subject matter of reference to the High Court. Reasons why the statement of Shri Umesh Chand Goyal was considered to be voluntary have been discussed at length in paragraphs 16 and 17 of the order of the Tribunal and, therefore, it cannot be said that the submissions of the learned Counsel actually made during the hearing of the appeal were not taken into account, and, if at all, such was the case, the remedy lay elsewhere and not by making an application for reference to the High Court. In this connection reference may be made to the decision of the Tribunal in the case of Metal Extruders (I) Pvt. Ltd., Bombay v. Collector of Central Excise, Bombay [1985 (19) E.L.T. 198 (Tri.)]. 11. So far as the question of arrest and production of Shri Umesh Chand Goyal before the Magistrate is concerned, the Tribunal had taken into account the submissions of both the sides on this point in paragraphs 11 & 13 of its order and recorded its findings in paragraphs 16 & 17 of its order. It cannot, therefore, be said that the submissions actually made have not been taken into account and any question of law has arisen because of not having taken them into account. 12. So far as the question at III is concerned, the reasons why the Tribunal has held the gold to be of foreign origin are recorded in paragraph 21 of the order. The relevant portion of which is as under :- "...Since we have held that the statements of appellant No. 1 were validly made and he has admitted his dealings in the past in carrying foreign gold from Bharatpur and disposing it of at Jaipur and carrying the sale proceeds thereof back to Bharatpur, he, by such acts of omission and commission, has undoubtedly rendered himself liable to penalty under Section 112 of the Customs Act. Considering that he has admitted that he did it over a period of time and on a number of occasions, we do not think that a penalty of Rs. 50,000/- imposed on him under Section 112 was excessive. Accordingly, we reject the appeal of appellant (No. 1) on this ground." Thus after a consideration of all aspects of the matter, we observed that it is not correct to say that the Tribunal has not considered the submissions which were made during the hearing of the appeal, as a result of which, any question of law as aforesaid has arisen. We have also seen the case law cited before us by the learned Counsel, and we observe that except for the case of M/s. Radha Kishan Nandlal the other cases are not relevant for purposes of consideration of the reference application. In this case too, the Supreme Court had set aside the order of the High Court on the ground that the High Court had discharged the rule without giving any reasons. 13. So far as the judgment of the Supreme Court in the case of KTMS Mohmd is concerned, paragraph 33 of the judgment which makes the position quite clear is extracted below :- "33. We think it is not necessary to recapitulate and recite all the decisions on this legal aspect. But suffice to say that the core of all the decisions of this Court is to the effect that the voluntary nature of any statement made either before the Customs Authorities or the officers of Enforcement under the relevant provisions of the respective Acts is a sine quo non to act on it for any purpose and if the statement appears to have been obtained by any inducement, threat, coercion or by any improper means that statement must be rejected brevi manu. At the same time, it is to be noted that merely because a statement is retracted, it cannot be recorded as involuntary or unlawfully obtained. It is only for the maker of the statement who alleges inducement, threat, promise etc. to establish that such improper means has been adopted. However, even if the maker of the statement fails to establish his allegations of inducement, threat etc. against the officer who recorded the statement, the authority while acting on the inculpatory statement of the maker is not completely relieved of his obligations in at least subjectively applying its mind to the subsequent retraction to hold that the inculpatory statement was not extorted. It thus boils down that the authority or any Court intending to act upon the inculpatory statement as a voluntary one should apply its mind to the retraction and reject the same in writing. It is only on this principle of law, this Court in several decisions has ruled that even in passing a detention order on the basis of an inculpatory statement of a detenu who has violated the provisions of the FERA or the Customs Act etc. the detaining authority should consider the subsequent retraction and record its opinion before accepting the inculpatory statement lest the order will be vitiated. Reference may be made to a decision of the full Bench of the Madras High Court in Roshan Beevi v. Joint Secretary to the Govt. of Tamil Nadu, Public Deptt. etc. 1983 Law Weekly (Crl.) 289 (1to which one of us (S. Ratnavel Pandian, J.) was a party." (Emphasis supplied) The guidelines on the subject are clear from the above. We observe that the learned Collector has recorded reasons why he did not accept the retraction of Shri Umesh Chand Goyal so the Tribunal has done in paragraphs 6 & 16 & 17 of its order. While accepting the incriminating nature of the statement, so far as Shri Umesh Chand Goyal was himself concerned, the Tribunal has merely stated the legal position so far as evidentiary value of his statement against his father is concerned. In view of the above, law on the subject is succinctly stated in paragraph 33 extracted above and there is no question of law arises which needs a further reference on the subject. Reference applications are therefore rejected.

Umesh Chand Goyal vs Collector Of Customs And Central ... on 4 March, 1993

Customs, Excise and Gold Tribunal - Delhi

JUDGMENT Batchelor, J. 1. The petitioners here have been convicted of the offence of rioting under Section 147, Indian Penal Code, and have been sentenced each to a small fine. They apply in revision on the ground that a serious illegality was committed by the learned Second Class Magistrate, before whom this trial was heard. Fortunately-there is no dispute as to the facts under, lying this contention. These facts are: that after the petitioners had been called upon to open their defence several witnesses were called by them. Eight of those witnesses' depositions were recorded by the learned Magistrate, though in regard to six of them, it is clear, that their story has been seriously abbreviated, possibly mutilated. However that may be, when the Magistrate had exhausted these witnesses, it would seem that he had also exhausted his own patience. For, concerning five other witnesses, who remained to be examined, he writes only: " all these people repeat the defence story; I shall dispense with their evidence as unnecessary." It does not appear upon what grounds the learned Magistrate stated that these people, who had never been heard, would, if they were heard, repeat the defence story. And the Magistrate should have borne 'in mind that although the evidence of these witnesses may have appeared to him to be unnecessary, those witnesses' attendance was needed, not in the Magistrate's interest, but in the interests of the accused persons. If, therefore, the accused persons regarded them as necessary witnesses, it was not for the Magistrate to pronounce them to be unnecessary, before he had heard them. It is quite clear that procedure such as this cuts at the very root of the fairness of a criminal 1 trial. The case might have been different if the learned Magistrate had brought himself within the provisions ,of Section 257 of the Criminal Procedure Code, which empowers a Magistrate to decline to issue process where he considers that application for such process is made for the purpose of vexation or delay or for defeating the ends of justice. Where the Magistrate so considers arid records in writing his ground for so considering, it is competent to him to decline to enforce the attendance of witnesses. In this case, however, the Magistrate has not brought himself or his procedure within the provisions of 3.257. And there is no justification for his action in refusing to hear the witnesses whom the defence desired to call. I think, therefore, that the petitioners are entitled to have their conviction set aside. 2. Mr. Kelkar, who appears on the other side, has urged that if the conviction be set aside a retrial ought to be ordered. But having regard to the triviality of the offence, said to have been committed by these accused persons, as disclosed by the punishment which the Magistrate saw fit to award, and having regard also to the harassment, which these proceedings, protracted for such a long period, must have already caused to the petitioners, I think it unnecessary that a retrial should be ordered. The fines, if paid, to be refunded. Heaton, J. 3. I concur.

Author: Batchelor

Emperor vs Nandbasappa Basappa on 20 March, 1912

Bombay High Court

JUDGMENT G.S. Singhvi, C.J. 1. This is an appeal for setting aside order dated 31.1.2007 passed by the learned Single Judge whereby he rejected the appellant's prayer for issue of a mandamus to the respondents to promote him as Inspector, Railway Protection Force with retrospective effect. 2. The appellant joined the service as Sub-Inspector in Railway Protection Force, South Central Railway, with effect from 25.2.1963. In the course of service, five departmental enquiries were instituted against him and he was punished. He successfully challenged the orders of punishment in Writ Petition Nos. 4241 of 1972, 1639 of 1973, 3725 of 1975, 5240 of 1978, 11447 of 1983 and 12341 of 1983. His case was considered by the Departmental Promotion Committee (DPC) in 1973, 1976, 1979, 1981, 1983 and 1984 for promotion to the post of Inspector, but he was not found suitable on account of adverse entries in the confidential reports. He was promoted as Inspector Grade-II with effect from 14.11.1987 and as Inspector Grade-I with effect from 1.1.1996. After 3 years and six months of his promotion as Inspector Grade-II, the appellant filed Writ Petition (Civil) No. 596 of 1991 before the Supreme Court, which was disposed of on 18.7.1991 in the following terms: We are of the view, on hearing Counsel, that this is a case which could be canvassed before the High Court in a petition under Article 226 of the Constitution and a petition under Article 32 of the Constitution should not be entertained. We direct the writ petition to be transferred to Andhra Pradesh High Court where the petition may be dealt with as one under Article 226 of the Constitution. Petitioner's grievance seem to have originated about 15 to 18 years back and in that view of the matter the High Court will consider this case out of turn and expeditiously, preferably within a year. 3. The appellant did not pursue his cause in terms of the direction given by the Supreme Court. Instead, after a gap of 4 years and 3 months, he filed Writ Petition No. 22596 of 1995 with the following prayer: I therefore pray that this Hon'ble Court may be pleased to issue a writ, order or direction more particularly one in the nature of the writ of mandamus or any other appropriate writ, declaring the action of the respondent in not promoting me to the post of Assistant Security Commissioner (ASC) in the R.P.F. as illegal declaring the action of the respondent in promoting my juniors to the post of ASC in the R.P.F. ignoring my seniority and in spite of the fact that I am senior to them as illegal and violative of Articles 14 and 16 of the Constitution of India and I further pray that this Hon'ble Court to direct the respondents to promote me to the post of ASC in the R.P.F. with retrospective effect i.e., from the date on which my juniors were promoted to the posts of Inspectors and grant me all consequential benefits with retrospective effect from the date on which I am deemed to have been promoted to the post of ASC, and further pray that this Hon'ble Court to call for all relevant records for scrutiny by this Hon'ble Court in doing me justice and to pass such other or further order as this Hon'ble Court may deemed fit and proper in the circumstances of the case. 4. In the affidavit filed by him, the appellant relied on Rule 24 of the Railway Protection Force Rules, 1959, Chapter XII of the Railway Protection Force Regulations, 1966 and claimed that he was entitled to be promoted as Inspector Grade-II in the year 1973 and on the higher posts of Inspector Grade-I and Assistant Security Commissioner in the subsequent years, but the respondents arbitrarily ignored his case and promoted large number of his juniors in the cadre of Sub-Inspector. 5. In the counter filed on behalf of the respondents, Shri M. Ratan, Chief Security Commissioner made elaborate reference to the disciplinary proceedings instituted against the appellant and circular dated 1.6.1971 issued by the Railway Board and averred that the Departmental Promotion Committee comprising three Chief Security Officers considered the appellant's case for promotion in the years 1973, 1976, 1979, 1981, 1983 and 1985, but he was not recommended for the rank of Inspector Grade-II because of poor service record. Shri M. Ratan also raised the objections of delay and non-joinder of juniors of the appellant as parties to the writ petition. 6. The learned Single Judge noted that the posts of Inspector Grade-II and Grade-I are selection posts and held that promotion to these posts cannot be claimed as of right. The learned Single Judge then referred to the adverse remarks recorded in the Annual Confidential Reports (ACRs) of the appellant from 1968 to 1985 and held that the High Court cannot sit in appeal over the recommendations made by the Departmental Promotion Committee. The learned Single Judge also noted that the writ petition was filed after long lapse of time and rejected the appellant's claim by recording the following observations: It is not disputed that the petitioner's next promotion is Inspector Grade-II which is a selection post and when he was successful in the written examination and in viva voce, after considering his confidential reports, the Departmental Promotion Committee had not selected him in view of the fact that adverse remarks were recorded in the annual confidential reports. It is not in dispute that he was promoted as Inspector Grade only on 14-11-1987 and further promoted as Inspector Grade-I on 1-1-1996. The petitioner's only grievance is that he is entitled to be promoted with a date anterior to the date on which he was promoted. He ought to have questioned the same on being promoted without anterior date. The very fact is that the petitioner is claiming promotion from 1984 by filing the writ petition in the year 1995. The petitioner has not explained the delay why he has not chosen to challenge the same when he was promoted on 14-11-1987. Merely because the petitioner was successful in the writ ten examination and was called for viva voce, his promotion to the next higher post is not automatic and the DCP is under the obligation to verify performance in the substantive post and confidential records as to leadership, man management qualities etc., for effecting promotion. When the past records of the petitioner in respect of his performance continuously disclose poor or bad, he cannot claim promotion on par with his juniors. Having kept quite for eleven years after denying promotion under the Up-gradation Scheme held in the year 1984 and having accepted the promotion of Inspector Grade-II on 14-11-1987, he waived his right, if any, and it is not open for him to contend that he is entitled for promotion from 1984. The writ petition fails and it is accordingly dismissed. No costs. 7. The appellant, who appeared in person, argued that the finding recorded by the learned Single Judge on the issue of delay should be ignored because it is based on misreading of the record of the writ petition. He referred to order dated 18.7.1991 passed by the Supreme Court in Writ Petition (Civil) No. 596 of 1991 and argued that the learned Single Judge committed a serious error by non-suiting him on the ground of unexplained delay of eleven years. The appellant emphasized that he has been relentlessly pursuing his cause before departmental authorities and the Court and argued that the learned Single Judge should not have non-suited him only on the ground of delay in filing the writ petition. He further argued that the adverse remarks recorded in the Annual Confidential Reports are end product of bias and mala fides of the concerned Chief Security Officers and, therefore, his non-selection for promotion to the posts of Inspector Grade-II, Inspector Grade-I and Assistant Security Commissioner should be declared illegal and violative of the doctrine of equality enshrined in Articles 14 and 16 of the Constitution and the respondents be directed to promote him with retrospective effect on the posts of Inspector Grade-II, inspector Grade-I and Assistant Security Commissioner. 8. We have given serious thought to the arguments/submissions of the appellant, but have not felt impressed. The pleadings of the parties show that the appellant's case was repeatedly considered by six different Departmental Promotion Committees, but he was not selected due to adverse service record. The orders passed by this Court in different writ petitions filed by the appellant could legitimately entitle the appellant to seek review of his case, but the fact of the matter is that he did not seek intervention of the Court till the filing of writ petition before the Supreme Court in 1991 i.e., after more than 3 years and 6 months of his promotion as Inspector Grade-II. Their Lordships of the Supreme Court directed transfer of the writ petition to the High Court with a further direction to this Court to accord out of turn hearing, but the appellant did not pursue the matter. It is neither the pleaded case of the appellant nor he argued before us that he made efforts to find out the status of the transferred case or applied for hearing, but could not succeed. Rather, it is an admitted position that instead of pursuing his cause in terms of the direction given by the Supreme Court, the appellant filed fresh writ petition sometime in the month of October, 1995. If the issue of delay is examined in the context of the appellant's claim for promotion vis-a-vis those who were recommended by the Departmental Promotion Committees, then there is no escape from the conclusion that the appellant had approached this Court after a time gap of 11 to 22 years. This long delay has to be treated fatal to the appellant's claim for promotion with retrospective effect and we do not see any reason to interfere with the discretion exercised by the learned Single Judge not to entertain the appellant's prayer for issue of a direction to the respondents to promote him with retrospective effect. 9. It is true that no limitation has been prescribed for filing writ petition under Article 226 of the Constitution, but the Constitutional Courts have always been skeptical and slow in entertaining petition filed after long lapse of time. In State of M.P. v. Bhailal Bhai , the Constitution Bench of the Supreme Court considered the issue of delay in the context of the claim made by the respondents for refund of the illegally collected tax and laid down the following propositions: (1) The special remedy provided in Article 226 is not intended to supersede completely the modes of obtaining relief by an action in a civil Court or to deny defence legitimately open in such actions. The power to give relief under Article 226 is a discretionary power. This is specially true in the case of power to issue writs in the nature of mandamus. Among the several matters which the High Courts rightly take into consideration in the exercise of that discretion the delay made by the aggrieved party in seeking this special remedy and what excuse there is for it. (2) It is not easy nor is it desirable to lay down any rule for universal application. It may, however, be stated as a general rule that if there has been unreasonable delay the Court ought not ordinarily to lend its aid to a party by this extraordinary remedy of mandamus. Again where even if there is no such delay the Government or the statutory authority against whom the consequential relief is prayed for raises a prima facie triable issue as regards the availability of such relief on the merits on the grounds like limitation the Court should ordinarily refuse to issue the writ of mandamus for such payment. In both these kinds of cases it will be sound use of discretion to leave the party to seek his remedy by the ordinary mode of action in a civil Court and to refuse to exercise in his favour the extra-ordinary remedy under Article 226 of the Constitution. (3) The provisions of the Limitation Act do not as such apply to the granting of relief under Article 226. However, the maximum period fixed by the Legislature as the time within which the relief by a suit in a civil Court must be brought may ordinarily be taken to be a reasonable standard by which delay in seeking remedy under Article 226 can be measured. The Court may consider the delay unreasonable even if it is less than the period of limitation prescribed for a civil action for the remedy but where the delay is more than this period, it will almost always be proper for the Court to hold that it is unreasonable. 10. A similar view was expressed, though in different words, by majority of another Constitution Bench in Tilokchand Motichand v. KB. Munshi . The propositions laid down in the majority judgment of the Supreme Court are extracted below: Utmost expedition is the sine qua non for such claims. The party aggrieved must explain satisfactorily all semblance of delay. No period can be indicated which may be regarded as the ultimate limit of action for that would taking upon itself legislative functions. In England a period of 6 months has been provided statutorily, but that could be because there is no guaranteed remedy and the matter is one entirely of discretion. In India each case will have to be considered on its own facts. Avoidable delay affecting the merits of the claim, will disentitle a party to invoke the extraordinary jurisdiction. The question is one of discretion for this Court to follow from case to case. This Court need not necessarily give the total time to the litigant to move this Court under Article 32, even though he may be within statutory limitation. Similarly in a suitable case this Court may entertain a petition even after limitation. It will all depend on what the breach of the Fundamental Right and the remedy claimed are and how the delay arose. 11. The majority opinion expressed in Tilokchand Motichand v. H.B. Munshi (supra), was approved by a Larger Bench in Mafatlal Industries Ltd. v. Union of India . 12. In service matters, the Courts have applied the rule of delay with greater rigor Rabindra Nath v. Union of India , P.S. Sadasivaswamy v. State of T.N. , Roshan Lal v. International Airport Authority of India , Gian Singh Mann v. High Court of P&H , Union of India v. S.S. Kothiyal , Prafulla Kumar Pallai v. State of Orissa 1999 SCC (L&S) 777, A.J. Fernandis v. Divisional Manager, S.C. Rly. (2001) 1 SCC 240, K.A. Abdul Majeed v. State of Kerala , U.P. Jal Nigam v. Jaswant Singh , Uttaranchal Forest Development Corporation v. Jabar Singh and A.P. Steel Re-Rolling Mill Ltd. v. State of Kerala . 13. In U.P. Jal Nigam v. Jaswant Singh (supra), the Supreme Court considered the question whether the High Court was justified in granting relief to the employees on the basis of judgment in Harwindra Kumar v. Chief Engineer, Karmik , even though they had accepted the retirement and taken the monetary benefits and approached the Court after long lapse of time. While allowing the appeals, the Supreme Court referred to the earlier judgments in State of Karnataka v. S.M. Kotrayya , Jagdish Lal v. State of Haryana , Union of India v. C.K. Dharagupta , Government of W.B. v. Tarun K. Roy and culled out the following statement of law contained in Halsbury's Laws of England: In determining whether there has been such delay as to amount to laches, the chief points to be considered are: (i) acquiescence on the claimant's part; and (ii) any change of position that has occurred on the defendant's part. Acquiescence in this sense does not mean standing by while the violation of a right is in progress, but assent after the violation has been completed and the claimant has become aware of it. It is unjust to give the claimant a remedy where, by his conduct, he has done that which might fairly be regarded as equivalent to a waiver of it; or where by his conduct and neglect, though not waiving the remedy, he has put the other party in a position in which it would not be reasonable to place him if the remedy were afterwards to be asserted. In such cases lapse of time and delay are most material. Upon these considerations rests the doctrine of laches. 14. Their Lordships of the Supreme Court also invoked the principle of acquiescence and observed: In view of the statement of law as summarised above, the respondents are guilty since the respondents have acquiesced in accepting the retirement and did not challenge the same in time. If they would have been vigilant enough, they could have filed writ petitions as others did in the matter. Therefore, whenever it appears that the claimants lost time or whiled it away and did not rise to the occasion in time for filing the writ petitions, then in such cases, the Court should be very slow in granting the relief to the incumbent. Secondly, it has also to be taken into consideration the question of acquiescence or waiver on the part of the incumbent whether other parties are going to be prejudiced if the relief is granted. In the present case, if the respondents would have challenged their retirement being violative of the provisions of the Act, perhaps the Nigam could have taken appropriate steps to raise funds so as to meet the liability but by not asserting their rights the respondents have allowed time to pass and after a lapse of couple of years, they have filed writ petitions claiming the benefit for two years. That will definitely require the Nigam to raise funds which is going to have serious financial repercussions on the financial management of the Nigam. Why should the Court come to the rescue of such persons when they themselves are guilty of waiver and acquiescence? 15. By applying the legal principles enunciated in the above noted judgments to the facts of this case, we hold that the writ petition filed by the appellant was highly belated and the learned Single Judge did not commit any error by non-suiting him on the ground of laches. 16. We also agree with the learned Single Judge that the appellant who earned adverse remarks in the Annual Confidential Reports in successive years from 1968 onwards cannot complain of violation of the doctrine of equality and seek a direction for his promotion. The entries recorded in the confidential reports of the appellant show that he was adversely commented with reference to almost all indicia's of his personality, conduct, discipline, work, knowledge etc. Therefore, the Departmental Promotion Committee cannot be accused of having acted arbitrarily by not recommending the appellant's case for promotion from 1973 to 1984. In exercise of the power vested in it under Article 226 of the Constitution of India, the High Court cannot sit in appeal over the recommendations made by the Departmental Promotion Committee. In such matters, the power of judicial review can be exercised only for determining whether the process of selection is vitiated due to violation of any statutory provision or mala fides. 17. The appellant has neither pleaded nor argued that the procedure adopted by the Departmental Promotion Committees is contrary to the statutory rules. He did make an allegation of mala fides against some of the Chief Security Officers, but this plea cannot be entertained because none of the Chief Security Officers, who recorded adverse entries in Annual Confidential Reports, was impleaded as a party and without hearing that person, the issue of malice in fact cannot be adjudicated. 18. There is another reason for declining relief to the appellant. As per the appellant's own showing, persons junior to him in the cadre of Sub-Inspectors were promoted on the recommendations of the Departmental Promotion Committees held in 1973, 1976, 1979, 1981, 1983 and 1984. Some of the juniors were further promoted as Assistant Security Commissioner and thereby acquired valuable rights to hold higher posts and positions. Therefore, without hearing them, this Court cannot issue a direction for annulment of the recommendations made by the Departmental Promotion Committees. Likewise, a direction for retrospective promotion of the appellant cannot be given because the same would adversely affect the persons who were already promoted to the higher posts of Inspector Grade-II, Inspector Grade-I and Assistant Security Commissioner. In our considered view, non-impleadment of the erstwhile juniors, who were promoted on the recommendations of different Departmental Promotion Committees, is fatal to the very maintainability of the writ petition. 19. No other point has been argued. 20. In the result, the appeal is dismissed.

Author: G Singhvi

Ch. Enoch vs Union Of India (Uoi) And Ors. on 13 July, 2007

Andhra High Court

Gujarat High Court Case Information System Print CA/8279/2011 3/ 3 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL APPLICATION - FOR BRINGING HEIRS No. 8279 of 2011 In CIVIL APPLICATION - FOR CONDONATION OF DELAY No. 4037 of 2011 In SECOND APPEAL (STAMP NUMBER) No. 36 of 2011 ========================================= INDRAVADAN MANUBHA PATEL & 1 - Petitioner(s) Versus JITENDRABHAI BABUBHAI BAROT & 10 - Respondent(s) ========================================= Appearance : MR PS CHAMPANERI for Petitioner(s) : 1 - 2. MR NK MAJMUDAR for Respondent(s) : 1, None for Respondent(s) : 2 - 11. ========================================= CORAM : HONOURABLE MS.JUSTICE HARSHA DEVANI Date : 24/08/2011 ORAL ORDERBy this application, the applicants-original appellants seek permission to join the legal heirs of respondents No. 2 and 3 on record of the proceedings of this Court, namely, in Civil Application No.4037 of 2011 for condonation of delay as well as in Second Appeal (Stamp) No. 36 of 2011. Mr. K. P. Champaneri learned advocate for the applicants submitted that the respondents No. 2, 3 and 6 have expired and that the heirs and legal representatives of deceased respondent No.6 are already on record; whereas, the heirs and legal representatives of respondents No. 2 and 3 named in paragraphs No.3 and 4 of the application are required to be brought on record of the application for condonation of delay as well as in the second appeal referred by the applicants. The application was opposed by Mr. S. J. Nayak learned advocate for Mr. N. K. Majmudar learned advocate for the respondents by pointing out that the respondents No. 2 and 3 have expired on 21.9.2006 and 27.12.2005 respectively, that is during the pendency of the first appeal before the lower appellate court. It was submitted that in the circumstances, the appeal before the lower appellate court stood abated qua the said respondents and as such, it is not permissible to bring the heirs and legal representatives of the deceased respondents No. 2 and 3 on the record of the second appeal. In support of his submissions, the learned advocate has placed reliance upon the decision of this Court in the case of State of Gujarat V/s. Chandramanishanker Jadhavlal Sanghvi & Others, 1963 GLR 943 for the proposition that the appellate court can pass orders under Order XXII Civil Procedure Code only if one of the parties in the appeal dies after the suit has been decided and during the pendency of the appeal. The appellate court cannot pass orders under Order XXII in respect of a party who died during the pendency of the suit. On a perusal of the application as well as the annexures thereto, it is apparent that Regular Civil Appeal No. 8 of 2000 came to be decided vide judgment and order dated 13th May, 2009, whereas, the respondents No. 2 and 3 herein have expired on 21.9.2006 and 27.12.2005. Hence, it is apparent that both the respondents have expired during the pendency of the first appeal before the learned Additional District Judge, Kheda. Thus, the first appeal being Regular Civil Appeal No.8 of 2000 stood abated qua the respondents No. 2 and 3. In the circumstances, it was for the appellants to approach the concerned court for setting aside the abatement and for bringing on record the heirs and legal representatives of the deceased respondents No. 2 and 3 on the record of Regular Civil Appeal No. 8 of 2000. In view of the fact that Regular Civil Appeal No.8 of 2000 has abated qua respondents No. 2 and 3, it is not legally permissible to bring on record the heirs and legal representatives of the said respondents in the present second appeal. For the foregoing reasons, the application fails and is accordingly rejected. (HARSHA DEVANI, J.) (ashish)     Top

Author: Harsha Devani,

Indravadan vs Jitendrabhai on 14 November, 2011

Gujarat High Court

> Title : Discussion on the Supplementary Demands for Grants in respect of Budget(General) for 2009-2010. MR. CHAIRMAN: Now, we will take up Item No.18 – Discussion and Voting on the Supplementary Demands for Grants (General) for 2009-10.           Motion moved: “That the respective supplementary sums not exceeding the amounts on Revenue Account and Capital Account shown in the third column of the Order Paper be granted to the President of India, out of the Consolidated Fund of India, to defray the charges that will come in course of payment during the year ending the 31st day of March, 2010, in respect of the heads of Demands entered in the second column thereof against Demand Nos. 1, 2, 4 to 7, 9, 11, 12, 14, 17 to 21, 28 to 33, 35, 38, 39, 41, 44, 46, 49, 51, 53 to 55, 57 to 62, 64, 65, 67, 71, 74, 79, 80, 84, 86 to 88, 90 to 93, 100, 101 and 103 to 105.”             MR. CHAIRMAN : Hon. Member Shri Yashwant Sinha. SHRI YASHWANT SINHA (HAZARIBAGH):  Mr. Chairman, Sir, I rise to speak on the Supplementary Demands for Grants that the hon. Finance Minister has presented before this House.           I would like to congratulate him that the net cash outgo in the Supplementary Demands is limited to only Rs.25,000 and odd crores of rupees.           Compared to the absolutely horrendous Supplementary Demands which were presented by his predecessor last year, this has come as a big relief. But I would still like to mention that when one goes through the Supplementary Demands which amount to a net cash outgo for the Government, there are many items of expenditure which should have been and could have been easily anticipated at the time of preparation of the Budget. The case in point is Rs. 800 crore which has been provided as fresh equity to Air India. We are all aware that Air India has been in a mess for quite a while. When the Finance Minister was preparing his Budget earlier this year, he was aware of the very distressing conditions which were prevailing in Air India and a decision to shore up the equity base of Air India could have been easily taken at that point of time. Air India has incurred losses of something like Rs. 7,000 crore. I do not know as to what extent this fresh equity of Rs. 800 crore is going to help Air India recover from the distress and the sickness it is in. But, if I may take a moment of your time, I would like to say that Air India represents a massive failure and mismanagement of a public sector enterprise by the Government. Who is responsible and who is guilty is something which should be discussed by this House and there should be clear conclusions drawn about the future course of action. To me, it appears that mere infusion of Rs. 800 crore as equity in Air India is not going to sort out the problem and the Finance Minister may have to come back to this House again to help Air India.           Then, there are issues like subsidy for fertilisers, subsidy to the Food Corporation of India, additional expenditure on pension both defence and civil and all these items of expenditure could have been anticipated. I am aware of the fact that every Finance Minister does indulge in some sleight of hand. I am also aware of the fact that whether it should be 29.4 or 29.6 is also a figure with which the Finance Ministers often play around with and if they can reduce the overall deficit in the Budget by even a fraction of a percentage, they often take recourse to that. But the House will agree that this is not the best budgetary practice and, therefore, it is best avoided.           But the Supplementary Demands that the Finance Minister has presented to this House with a net cash outgo of over Rs. 25,000 crore is a small part of the overall problem that the economy is facing. I agree that the present Finance Minister inherited a mess from his predecessor. The failure, I could point it out, of the previous Government, the UPA-I was that they just did not know how to manage a fast growing economy.  They did not know how to manage an economy of surpluses.  Therefore, they made some very crucial mistakes in the management of the economy.  The predecessor of the present Finance Minister, Mr. Chidambram, was a very lucky Finance Minister.  I think, he has been one of the luckiest Finance Ministers in the history of Independent India, but he failed to take any of those steps which were necessary when we were passing through those halcyon years, the bright years in our economy and I would like to make this point which has been made by many commentators that the crisis that we have witnessed in the Indian economy is a crisis of our own creation.  We were responsible for bringing the growth rate down, we were responsible for running a huge fiscal deficit, and we were responsible for the price rise. 16.12 hrs.                               (Dr. Raghuvansh Prasad Singh in the Chair) It is now a matter of record that the global financial crisis came much later, after we had already inflicted some wounds on ourselves.  The global financial crisis, Mr. Chairman, only added to our problems.  The net result has been that while 75 per cent of the problems that we face today, we encounter, were created by us and 25 per cent only by the global financial crisis.  This has resulted in a great deal of suffering for the people of this country because the great effort which was made during the NDA regime to transform an economy of shortages into an economy of surpluses has again been turned  into an economy of shortages. We were discussing just a little while ago in this House the problem of the sugar industry.  Now, the Minister for Agriculture, Food and Consumer Affairs might get his Bill passed in this House, but what is the message which has gone across.  The message which has gone across is that while the Government is permitting sugar to be sold at Rs.35-Rs.40 a kilo in retail in the market, the growers of sugarcane, the farmers are not getting their price, in fact, their price is being reduced.  This is the general message which has gone around in the country.  It is not merely here in sugar whether you import sugar or not, whether you import rice or not, that is another issue.  But the fact is that there is a shortage, the fact is that there is not only a shortage of sugar but there is shortage of everything.  I mean, I cannot imagine why there should be a shortage of LPG. in this country. There was a time when we were in office when the dealers of LPG cylinders used to go from house to house to say whether the consumer was interested in buying a cylinder of LPG.  Today, the waiting period is more than a month.  People have to queue up to get LPG cylinders for domestic cooking purposes.  Why has an economy of surpluses suddenly become an economy of shortages once again?  This is something which the Government will have to explain.            Every period of time creates or throws up its own problems as far as the management of the economy is concerned.  Today’s problems are different from the problems that we faced in the last five years.  The Finance Minister will have to deal with these problems, will have to overcome them if the Indian economy has to grow and the people of India have to lead a life of dignity and comfort.  Today, it appears to me that the most important problem before the Finance Minister is the problem of rising, uncontrolled food prices.  I was sitting in this House, so I do not know what the figures of inflation, especially of our food grains, are, which should have come today.            But, I would like to refer to the Report of the Prime Minister’s Economic Advisory Council which was brought out only in the month of October.  They have themselves said that on the domestic front the sharp increase in the prices of food grains, especially rice and pulses, other primary food products and of sugar is a major policy concern.  They have gone on to add that even in the winter of 2008-09, as world prices of manufactured goods and internationally traded basic foods were declining, the domestic prices were increasing one year ago, and this has continued.  International food prices were coming down; our domestic food prices were going up.  This is the finding of the Economic Advisory Council of the Prime Minister.  So we cannot even take comfort from the fact that global prices are rising.            Then it points out the dangers which are lurking; the danger that there could be with a world economy growing; how commodity prices will start picking up again specially petroleum prices.  Any other setback in the management of global finance will trigger a crisis of unparalleled proportions and will lead to destabilization.  This is the finding of the Prime Minister’s Economic Advisory Council.            When prices had started rising last year, we had advised the Government in Parliament and outside that the kind of monetary policy that the RBI was initiating would create more problems.  I remember, I had pointed out even then that the nature of inflation was different. The nature of inflation was confined to price rise of essential commodities including food grains. Therefore, however harsh a monetary policy you might introduce, it is not going to help control the prices of food grains and essential commodities.  This was a simple logic.  I am not an Economist; neither are you, I hope, Mr. Finance Minister. One advice which I would like to give you is, get rid of those Economists.  A strong common sense is a far greater aid to policy making than all the technical advice that you might seek.  So, get rid of all, specially the monetary ones.  The Monetarists are the biggest threat to the stability of this country’s economy.           So, they went for harsh monetary measures. The harsh monetary measures led to shortage of funds; they led to high interest costs; money became unaffordable; and money became expensive.  That has created the problem.  The global crisis only added to it.            Why is your economy growing at around eight per cent now?  Your exports are declining. Your agricultural growth in the second quarter is less than one per cent of GDP.  You are still growing at 7.9 per cent in the second quarter.  How is this happening? This is where the secret of Indian economy lies.  It is the domestic savings and domestic demand which will propel the Indian economy forward.  This is where we must concentrate, and that is, domestic demand and domestic savings. Now, inflation is something on which, Mr. Chairman, Sir, the Government has failed not only miserably but it has sent out messages which are most perplexing.  Can the Prime Minister of India stand up and say: “We are unable to control prices and that we should be prepared to face more increase in prices”?  The Food Minister of India gets up and says: “We will not be able to control prices”.  Yesterday, the hon. Finance Minister was in Ranchi, which is the Capital of my State, where he gave explanations which the people of India will not be prepared to buy. It is not.  Let me quote to you again what the Prime Minister’s Economic Advisory Council has said.  It says: “The economy, however, continues to be supply constrained primarily in physical and social infrastructure, electricity, irrigation and drinking water, road and other transportation, and rural and urban economic infrastructure where the Government plays a major role”.  In these areas, we have been found deficient.  When one refers to supply side constraints, it is not merely physical supply but all these aspects which constitute supply side economics. On all these, we have, unfortunately, not been able to keep pace with demand. I would like to remind the hon. Finance Minister, through you, Sir, that in 2002 this country faced a very serious drought.  I was going through the figures and I am told that the estimated loss of food grains production in kharif is likely to be a little over 10 million tonnes.  Correct me if I am wrong, 10 million tonnes is the loss in kharif production.  In 2002, the total decline in food grain production as a result of drought – the worst ever in recorded history – was 40 million tonnes; 40 million tonnes less production of food grains.  I will advise the Finance Minister to look up his own Government’s Economic Survey of 2003-04 which was presented before the Budget of 2004-05, where they had commended the manner in which the then Government controlled prices, and how the people of this country did not even get to know except the poor kisans that there was a drought, that there was a loss of food grains production.  Why? It was because we had in our godowns over 65 million tonnes of food grains – rice and wheat.  We pushed them into the market.  We told the State Governments: “Please start Food for Work Programmes.  We will give you food grains free of cost”.  We gave the grains to the millers so that they could convert it and sell it in the market.  We made large quantities of food grains available to the State Governments for distribution through the Public Distribution System, through the Antyodaya Anna Yojana, through the Annapoorna Anna Yojana even free of cost. There was a Mid-Day scheme also.  So, a whole lot of steps were taken to flood the market with the stocks that we were holding in Government godowns.  If the Finance Minister bothers to look up the records, which are kept in Government – which I am sure, they are available – he will  find  the magic key to control the situation today.  That is the way to go.  They should not be  niggardly, they should not be conservative as far as releases from the Government godowns are concerned.  They should release it liberally. I would even suggest that --as far as NREGA is a concerned, I would have more to say on it later – the Government could consider releasing part of the wages as food grains so that the food grains find  their way into the belly of the  people, into the market, and the pressure on the market is reduced.           This is something, which is unacceptable   -- a price rise week after week of this magnitude. Sir, you were talking, when we were speaking from there,   about how the sugar market is on fire.  I would say, the entire market is on fire. The entire market of this country of essential commodities is on fire today. When I am saying, it is on fire, prices are rising on a daily basis.  It is not merely that you wait for one week to know what the prices will be… (Interruptions)           Mr. Chairman, Sir, I cannot understand the kind of helplessness that the Government is displaying in controlling the price rise of food grains and other essential commodities.  They have all the tools – policy and otherwise – at their disposal. They have administrative tools, policy tools, etc. at their disposal. Is there a reluctance to use them? I cannot believe that such bright people, who are sitting in the Government, like the Finance Minister, like the  Prime Minister  would be unaware of what should be done in a situation of this kind.  So, why is it not happening?           I am coming, Sir, straight from my State of Jharkhand, where we are in the election mode. Perhaps, you know, this is the first day that I am attending Parliament in this Session. And, I know how it is hurting the people.  I would like to tell the Finance Minister that when we go and talk to the people, when we address meetings and we forget to mention price rise, they remind us and tell us: “Why have you forgotten price rise? Why are you not mentioning price rise? How are we going to live? How are we going to make our children live? How are we going to feed the family?”  This is absolutely an unacceptable situation.  When the Finance Minister gets up to reply to this debate in the House, I would expect him to say something consoling, to say something comforting, to say something positive on what are the plans with the Government to control prices, especially as I said, of essential commodities.  So, this is the most important problem that the economy is facing today.           I would warn you later that if you fall into the trap of the monetarists, then you are going to face much more difficult situation.           Then, what is the second most important problem that the Finance Minister and the country face a today?  Again, I would go back to the Economic Advisory Council’s Report.           It is the Report on the Fiscal Deficit Situation. It is this Report which says. It is not Yashwant Sinha, it is not a Member of the Opposition but they are saying ‘if you take the off-Budget liabilities of the Government….’ This is the sleight of hand which his predecessor created. This is something on which the Comptroller and Auditor-General has commented adversely.  The easiest way out for Mr. Chidambaram was what? It was to push the deficit, the liabilities under the line, and then not include it in the fiscal deficit, not include it in the overall deficit. He might consider it as a sleight of hand. I have described it as a fraud on Budget making in this country. How can you have bonds of every kind—oil bonds, fertilizer bonds, food bonds, this bond and that bond? What does it mean in simple terms, Mr. Chairman?  In simple terms, it means that the Government only adds to its deficit the interest burden and the principal is pushed to some date in the future, to the succeeding generation. It is a 10 year bond. Somebody else will pay 15 years bond. Somebody else will pay. They will have to redeem the liability. Then, you say, no, everything is hunky dory. There is no problem, and I have my deficit. Even then the Finance Minister was constrained to put his deficit at over six per cent of the Budget. What does the Council say? The Council says that you add the Government of India’s deficit, the State Governments’ deficit and these off-Budget liabilities, which are real liabilities, then the total fiscal deficit is 10.4 per cent of the GDP this year. We are back to the bad old days of the late ’80s and early ’90s. The Finance Minister knows this much better than anyone else that the reason why India faced that balance of payments crisis in 1990-91 and so much distress and hardship was because of unsustainable fiscal deficit that we had. Then, very fortunately for the Government of India came the global financial crisis because on the one hand it completely concealed all their failures because they could tell the people of India that all these problems are because of the global financial crisis, they are not because of our creation and second that they could describe all this as a stimulus package. I thought the word … was an unparliamentary word but I heard the Home Minister on television utter it repeatedly in this House when he was replying to the Liberhan debate. So, I am not going to break the rules and norms of this House by using that pejorative word. But I am saying this that nothing could have been farther from truth than to mask, to conceal your failures, your inabilities, your shortcomings under the garb of the global crisis and to describe the huge fiscal deficit that you ran as a stimulus package. I am charging the Government today in this House that all this was nothing but an effort, an attempt to win the elections. This is what happened… (Interruptions) If I could put a figure on it, for the 206 seats that the Congress Party secured in the last Lok Sabha elections, the cost to the country is Rs.4,00,000 crore. This is the deficit in this Budget. Mr. Finance Minister, Sir, you had said in your Budget speech that to bring the fiscal deficit under control, we have to initiate institutional reform measures during the current year itself. These measures have to encompass all aspects of the Budget, such as subsidy, taxes, expenditure and disinvestment. This is what you have said in your Budget speech. Now, we are in the month of December and we are discussing in this House the first batch of Supplementary Demands. Where is the evidence that such measures to control the deficit have been thought of or the House is taken into confidence about them? I have here the article of a very distinguished economist who wrote a piece and he said, “It would be the height of irresponsibility if they cannot bring the fiscal deficit back to 3.5 to 4 per cent of the GDP.”   There have been so many write-ups in the newspapers about this. Does the Government have the option or the satisfaction that they can roll back these expenditures whenever they want? Perhaps the US can do it, perhaps the European Union can do it, perhaps Japan can do it, perhaps somebody else including China, who thought of a bail out, could do it. But are we in a position to do it?           Mr. Chairman Sir, the Finance Minister had proudly informed the House when he presented the Budget that for the first time in our history we had crossed the figure of Rs.10 lakh crore as far as expenditure budget was concerned. Now I will first quote the Economic Advisory Council report because this is a document of the Government. What does it say? It says: “The above fiscal developments underscore four important points: (1)  Increase in deficit was not due to the stimulus package, but on account of additional outlay on subsidies, pay revision, loan waiver and increased coverage of NREGA. (2)  The structural component of the deficit is substantial, though some part of it is cyclical. (3)  The substantially higher revised expenditure over the budgeted figure brings the poor expenditure management in sharp focus. (4)  There was limited fiscal space for the stimulus package and it could not be directed to the desired sectors, particularly infrastructure.”   This is the finding, these are the comments of the Economic Advisory Council of the Prime Minister.           Now, coming to Rs.10 lakh crore, I would like the Finance Minister to take the House into confidence and tell us that if you were to give up the stimulus package, which are the items of expenditure which you will be able to give up. I had analysed it. Rs.6,18,834 crore is accounted for by Non-Plan Revenue expenditure, which is the most unproductive part of Government of India expenditure. Why? Because it consists of interest payment, defence, subsidies, pensions, establishment expenditure, postal deficit and items like this. Where can you compress? Is there anything here which you can roll back next year and say this is what I am doing in order to peg fiscal deficit at this level? Plan expenditure is only Rs.3,25,149 crore – less than half of the total Non-Plan expenditure. Government of India’s interest payment alone this year is of the order of Rs.2,25,511 crore. This is what we are paying as interest. We are going to borrow Rs.4 lakh crore this year. Just imagine how much interest burden this is going to add. Everyone is commenting today on the debt GDP ratio. The debt GDP ratio is increasing beyond all reasonable limits. It is going to touch, according to some estimates, 80 per cent of the GDP by the end of this fiscal year. 80 per cent of the GDP will constitute the debt of this country. This cannot be described as a comfortable situation at all. Therefore, it is the rigid nature of the expenditure of the Government of India, which they were able to sustain because taxes were buoyant, because the economy was growing, especially the industrial economy, the service economy of this country and taxes were buoyant. But this year taxes are not so buoyant. This year we are going to end up receiving far less by way of taxes at the end of the year than what the Finance Minister projected as tax receipts in his Budget. Direct Taxes, which was the most buoyant part of the taxation structure of this country, have also been registering very slow growth.           So, you have a situation where your expenditure will continue to rise and your taxes will continue to give you less money and the fiscal deficit which has been presented at over 10 per cent of the GDP is likely to expand further. So, where is the Fiscal Responsibility and Budget Management Act which was passed when we were in office to bring some discipline in Government finances? We have made a travesty of that. It is a sacred Act passed by this Parliament. The manner in which it has been turned into a joke is something which is beyond any comprehension.           What happens to the FRBM Act? I would like the Finance Minister to tell us in very clear terms – are they going to continue with the Act, are they going to come with a long term fiscal policy? What are they thinking and how are they trying to bring Government finances back on the rails, back on track again? Nobody can stand up here and say a large fiscal deficit of Rs. four lakh crore,  which might be Rs. five lakh crore next year, Rs. six lakh crore after that, is a very good thing. I see an advertisement in some television channels where they say - दाग अच्छे हैं। वह बच्चा खेलता है मिट्टी में, वह कहते हैं दाग अच्छे हैं। It is because they are promoting a particular brand of detergent. So, they are saying दाग अच्छे हैं। Now, I would not like the Government to stand up here and say - फिस्कल डेफिसिट अच्छा है इसलिए बढ़ाते जाओ, क्योंकि उसको धोने के लिए कोई डिटर्जेंट नहीं है आपके पास नारायण सामी जी, कोई डिटर्जेंट नहीं है जो उस दाग को धो पाए। सभापति महोदय : माननीय सदस्य, कृपया अपना भाषण समाप्त करें। आपकी पार्टी को अलाट किया समय समाप्त हो रहा है, जबकि दो और सदस्य आपकी पार्टी से बोलेंगे। श्री यशवंत सिन्हा : मैं अपनी बात समाप्त ही कर रहा हूं। This is the latest expenditure figure which are monthly figures which are released by the Controller General of Accounts and these are up to October. Up to October, the Government of India has already incurred the revenue deficit in seven months of 73.1 per cent.  आगे क्या होगा चलकर भगवान ही जानता है। मैं बिल्कुल आपको विश्वास के साथ कह सकता हूं कि फाइनेंस मिनिस्टर भी नहीं जानते। At the end of the year, यह डेफिसिट बढ़ते-बढ़ते कहां पहुंच जाएगा? मेरे दो छोटे-छोटे पाइंट्स हैं। इंफ्रास्ट्रक्चर की बात आई।...अरे कोपेनहेगन यहां आ गया! पर्यावरण और वन मंत्रालय के राज्य मंत्री (श्री जयराम रमेश): रात को जाऊंगा, अभी तो आपकी बात सुनने आया हूं।...( व्यवधान) SHRI YASHWANT SINHA : I have no doubt, I can say it without fear of contradiction in this House that infrastructure has suffered heavily during the last five-six years, whether it is the Highways or the others. The only thing which is growing is telecom; but telecom is growing because of the momentum which has become automatic. So, it is growing automatically; the Government does not have the power to stop that growth. But, look at roads. The Lok Sabha was elected on the 16th of May this year. The new Minister of Road Transport and Highways has been in office for some time. I do not know what he is doing, where he has vanished. Like Mr. Jairam Ramesh, he was all over the media when he was Commerce Minister. Now, he has suddenly vanished from the scene. Occasionally one hears some..… (Interruptions) THE MINISTER OF STATE IN THE MINISTRY OF PLANNING AND MINISTER OF STATE IN THE MINISTRY OF PARLIAMENTARY AFFAIRS (SHRI V. NARAYANASAMY): He managed the media. … (Interruptions) SHRI YASHWANT SINHA : That is not my charge, that is Mr. Narayanasamy’s charge. … (Interruptions) So, on infrastructure take what the Prime Minister’s Economic Advisory Council was saying.            Mr. Chairman, Sir, I am making this point very seriously. If the Government had gone on to raise the fiscal deficit to 15 per cent of the GDP and the money had been going for the creation of infrastructure in this country, I would have been the first to stand up in this House to congratulate them and say that this is what I wanted. But they are wasting that money.           I mentioned about NREGS, the great flagship scheme of the Government. Mr. Chairman, Sir, do you know how much of it is being wasted? आप लोगों ने कैसे उस स्कीम को बनाया, मैं नहीं जानता हूं। मैं लोक सभा के एमपी के नाते अब उसे देख रहा हूं। आपकी एक स्कीम में मिट्टी-मोरम की सड़क है।   There is a complete prohibition on use of equipment and machinery. वह सड़क पर मिट्टी डालता है, वह कम्पैटिंग होता नहीं है, उसके ऊपर से मोरम डाल देगा, तो उसका क्या होगा? एक बरसात में वह सड़क बह जाती है। मैं इस तरह के अनेकों केसेज जानता हूं जहां उसने मिट्टी भी नहीं डाली। एक लम्बी सड़क के लिए वह मोरम लेकर गया और प्रसाद की तरह छिड़कता चला गया और बिल 10-20 लाख का बन गया। मैं तो यह मानता हूं कि नरेगा से  ...* इस देश में कभी बनी ही नहीं है। इतना ... *  एम्प्लाएमेंट के नाम पर हो रहा है। ...( व्यवधान) मजदूरों को महीनों तक कुछ नहीं मिलता है। ...( व्यवधान) THE MINISTER OF STATE IN THE MINISTRY OF PLANNING AND MINISTER OF STATE IN THE MINISTRY OF PARLIAMENTARY AFFAIRS (SHRI V. NARAYANASAMY):  Mr. Chairman, Sir, he is making an allegation against the Government. … (Interruptions) सभापति महोदय :  जब मैं अपनी सीट पर जाऊंगा और मुझे बोलने का मौका मिलेगा तो सारी बातों को स्पष्ट कर दूंगा। ...( व्यवधान) श्री यशवंत सिन्हा :रूरल इंफ्रास्ट्रक्चर के नाम पर कोई काम नहीं हो रहा है, सिर्फ पैसे की ....* हो रही है। ...( व्यवधान) SHRI V. NARAYANASAMY: Shri Sinha, you were also part of the system and you also inherited committees. … (Interruptions) श्री यशवंत सिन्हा :  सभापति महोदय, आपका भी अनुभव होगा और हम सभी का अनुभव है कि जब हम ग्रामीण क्षेत्रों में जाते हैं तो एक बड़ा मुद्दा जो हमारे सब के सामने आता है वह बीपीएल कार्ड का होता है। सब कहते हैं कि हमें बीपीएल कार्ड दो। सबसे बड़ी डिमांड आज रूरल एरियाज में यही है। हर जगह लोग कहते हैं कि मुझे बीपीएल सूची में शामिल करो, मेरे को लाल कार्ड दो। सरकार से मैंने पता किया तो पता चला कि भारत सरकार की तरफ से रोक लगी है कि बीपीएल में कोई नया नाम नहीं जोड़ा जाएगा। सक्सेना कमेटी रिपोर्ट बनी, उसके बाद अब सुरेश तेंदूलकर कमेटी रिपोर्ट बनी। यह रिपोर्ट, वह रिपोर्ट, मैं कहना चाहता हूं कि गरीब-गरीब है। क्या गरीब की पहचान करने के लिए किसी चीज की जरूरत है? गरीब तो गरीब है, उसकी पहचान करने में कोई दिक्कत नहीं होनी चाहिए। मैं भारत सरकार को यह सुझाव दे रहा हूं कि गरीबों की पहचान करने के बदले अमीरों की पहचान कर लें और बाकी सब गरीब हैं और सभी को लाल कार्ड, हरा कार्ड उपलब्ध कराना चाहिए। ...( व्यवधान)           सभापति महोदय, मैं झारखंड का उदाहरण देता हूं। वहां श्री एन.सी. सक्सेना, जो भारत सरकार के पावर्टी कमीशन को हेड कर रहे थे, मैंने अखबार में उनके बयान को पढ़ा कि झारखंड में गरीबों की संख्या 82 परसेंट है और केवल 30 परसेंट लोगों को बीपीएल कार्ड मिला है। इसका मतलब जो लोग सचमुच गरीबी रेखा से नीचे हैं, उन्हें इस कार्ड का लाभ नहीं मिल रहा है। न उन्हें इंदिरा आवास योजना का लाभ मिल रहा है, न वृद्धा पेंशन मिलती है और न ही सामाजिक सुरक्षा पेंशन मिलती है, उन्हें नरेगा का लाभ नहीं मिलता है और खाना भी नहीं मिलता है तथा ये इंक्लूसिव डवलपमेंट की बात कर रहे हैं। जनता को बहुत तकलीफ है, बहुत वेदना है। मैं उसका वर्णन भी सदन में नहीं कर सकता हूं और हम इक्नोमिक ग्रोथ की बात करते हैं। क्या गरीब इक्नोमिक ग्रोथ खाएगा? जिसका पेट खाली है, उसे आप कह दो कि आठ परसेंट ग्रोथ हो गई है, नौ परसेंट ग्रोथ हो गई है, क्या वह ग्रोथ खाएगा? सभापति महोदय : आप अपनी बात समाप्त कीजिए। श्री यशवंत सिन्हा :मैं सरकार से अंत में अपील करना चाहता हूं कि जहां एक तरफ इन्हें अपने बजट को मैनेज करना चाहिए, ढंग से मैनेज करना चाहिए, बजट में संतुलन बनाना चाहिए, जो पूरी तरह से असंतुलित और बरबाद हो गया है, उस बजट को संतुलित करने का प्रयास करना चाहिए और उन मुद्दों की तरफ ध्यान देना चाहिए, जो कि गरीबों से संबंधित हैं, जो गांवों से संबंधित हैं और शहर के गरीब लोगों से रिलेटिड हैं, जो भ्रष्टाचार पर अंकुश लगाएंगे। जब तक ऐसा नहीं होगा, तब तक कभी गांवों तक सड़क नहीं पहुंचेगी। कभी गांव में पीने का पानी नहीं पहुंचेगा, कभी गांव में घर और स्कूल नहीं बनेंगे। आज देखिए, तो आपको पता चलेगा कि सर्व शिक्षा अभियान, जो हम लोगों ने चलाया था, केवल उसी की बिल्डिंग दिखाई देती है।...( व्यवधान) इसके अलावा इन्होंने कुछ नहीं किया है और चुनाव जीतने के लिए भारत सरकार का चार लाख करोड़ रुपया इन लोगों ने बरबाद किया है। देश की इन्हें चिंता नहीं है, इन्हें केवल अपनी चिंता है। ऐसी व्यवस्था इस देश में नहीं चल सकती है। SHRI ADHIR CHOWDHURY (BAHARAMPUR): Thank you, Mr. Chairman, Sir. I rise to support the first batch of Supplementary Demands for Grants for 2009-2010. The approval of the Parliament is sought in the Supplementary Demands for Grants to authorize gross additional expenditure of Rs. 30,942.62 crore involving net cash outgo aggregating to Rs. 25,725.22 crore.           Our former Finance Minister, Shri Yashwant Sinha, was delivering his speech which I heard with rapt attention.  He was trying to belittle and negate the successes that the UPA – I and UPA – II Governments have achieved over the years by dint of their pro-people policies and pro-people welfare programmes. This is the first time that I came to know from our former Finance Minister that during the NDA regime there was an economy of surpluses. I do not know as to what that economy of surpluses is meant for. What does it denote? Shri Yashwant Sinha was very deliberately trying to drive a fissure between the UPA-I and the UPA-II Governments. He wanted to substantiate a cleavage between the present incumbent of Finance and his predecessors. But I think it would not work because our Government has been working in a concerted way with a single objective of inclusive growth in our country.           ये लोग उस जमाने में मुंगेरी लाल के हसीन सपने देख रहे थे। उन लोगों का जमाना मुंगेरी लाल के सुनहरे सपने देखते-देखते खत्म हो गया तो वे “शाइनिंग इंडिया” का स्लोगन सोचने लगे। यह उस समय हिन्दुस्तान की आम जनता के लिए रखा गया था लेकिन इन लोगों के लिए यह कामयाबी की जगह बरबादी लाया। इसी सिलसिले में जिन लोगों ने एनआरईजीएस के खिलाफ मेज थपथपाई है, मैं कहना चाहता हूं कि आप खुलेआम कहो कि तुम एनआरईजीएस के खिलाफ हो, तब मैं मानूंगा। जब आप गांव में जाते हैं तो एनआरईजीएस के तहत अपने यहां काम करवाते हैं। लेकिन जब आप पॉर्लियामेंट में आते हैं तो इस सरकार के खिलाफ बोलने के लिए एनआरईजीएस की बात करते हैं। चेयरमैन साहब, आप इस मंत्रालय के मंत्री थे। जब आपकी बारी आएगी तब मैं रिक्वेस्ट करूंगा कि आप इस बारे में विस्तार से चर्चा करें क्योंकि एनआरईजीएस एक ऐसा मुद्दा है, एक ऐसा हथियार है जिससे हमने एनडीए को दोबारा ठस्स करके यूपीए टू सरकार बनाई। यह बात इसलिए उन्हें अच्छी नहीं लगेगी।             Sir, the UPA-II Government has initiated its second journey with a special emphasis on inclusive growth. In spite of growth over the years, it is perceived that there have been inequalities in opportunities, gender inequality is pervasive, and the regional imbalances are evident. Therefore, the Government gave special emphasis for inclusive growth in our country.           The Eleventh Plan envisages a nine per cent growth of our GDP as a whole, which includes per capita GDP of 7.8 per cent per year. The truth is that we are to achieve this growth in the environment of global competitiveness, in an environment of a global economic scenario where we are destined to deal both with opportunities and challenges. In the wake of global economic downturn, which had its snowballing effect throughout the length and breadth of the world, we also got inflicted. 17.00 hrs.           But unlike the United States, the European Union and many other developed countries we succeeded in insulating Indian economy from the morass of the global economic downturn. This is a singular achievement of the UPA Government. Therein lies the success of the UPA-II Government. Not only that. during this period India has been emerged as a resilient economy in the world also. The resilience of our economy has been amply proved by the bouncing back of most of the sectors including industrial, manufacturing and export. Most prominently it was pointed by World Bank President Mr. Zoellick who said, “India’s growth rate could, over the next one or two years, see a return to the 8-9 per cent envisaged in the country’s 11th Five-Year Plan.” This is the comment of the World Bank President. Strong fiscal and monetary policies had helped counter the decline in exports and withstand some of the external shocks brought on by the multiple food, fuel and financial crises. Who does not know that international crude oil price had gone out of our control? Who does not know about the hardening of food prices in the international market? Now for the sake of debate if some of our esteemed colleagues try to question the veracity of the global economic scenario, then I can only say that I feel sorry for them.           The bounty of nature should not be construed as an achievement of any Government. Agricultural growth that took place during NDA regime was an endowment of the nature. It is not an achievement of any government. But it was a failure of the NDA Government that then food grains were rotting in the Government godowns people were deprived of having requisite food, which even led to starvation deaths in the country. Later on, this very NDA Government proposed to sell those precious food grains for a song to those exporters from whom the NDA Government was subscribed profusely. This is the truth.           The hon. Finance Minister has already commented, “The economy was able to weather the crisis and return to 7.9 per cent growth in the second quarter. This shows the strength of the stimulus packages introduced by the Government and the inherent sound economic fundamentals.”          It is really a matter of pride that despite being hit by the global slowdown, India’s  GDP growth rate can bounce back to nine per cent in the next three years. What is the reason? The reason is that we do have robust savings and we do have substantial investment capacities of our economy. I would like to ruminate the  past incidents. The history of Indian economy, the evolutionary path of Indian economy will give you an account that in the earlier days also, even after the Independence, our country faced very adverse situations. May I recall that during 1966, the then Finance Minister, Shri Sachin Choudhury, through a radio broadcast announced India’s decision to devalue the rupee at 36.5 per cent, including significant reduction in import tariff, tax credit, direct subsidies and important entitlement schemes. In the wake of crumbling of Berlin Wall, when the entire equilibrium of the world got a radical shift, at that time also, despite our close  trade business and to a large extent financial rupee-rouble alliance, the country did not succumb to the pressure created by the fall of Soviet Union. In 1991, everybody knows that the total public debt accumulated to 76 per cent of our GDP, interest payment reached four per cent of GDP and 20 per cent of the expenditure of GDP. Under such circumstances, the only recourse was the International Monetary Fund under compensatory and contingency finance facility,  along with loan from the World Bank and the Asian Development Bank, we got over the crisis and the financial reforms started with a new momentum. We have descended in the era of liberation, in the era of institutional restructuring and so on.  In 1997-98, this Indian economy withstood the pressure of South-East Asian crisis; and in 2008 Lehmann Brothers scandal led global recession. The IMF predicted it as the mother of all economic meltdown. I reiterated that this is the meltdown which has been recognised by the International Monetary Fund as a mother of all economic meltdowns in emerging markets. In spite of  all, it is our continuous endeavour to get rid of this economic meltdown and I am sure that the UPA Government will be coming out with flying colours in spite of all the nemesises being poured by the Opposition, we will be able to succeed. Nobody can stop us from winning the people of our country.           What is the situation of global economy? If we could not understand the present status of global economy, then, it would also be hard for us to assert and to assess the cascading effect of the global economy on our country. The positive side of the global economy right at this moment as per the IMF is world output has expanded by three per cent in the second quarter; manufacturing activity picked up; trade is recovering; financial market conditions are improving; appetite, risk appetite is increasing. These are the positive sides of world economy. However, it is matched with negative side also. The negative side is that the recovery is fragile. The second quarter improvement essentially is the outcome of policy induced stimulus. Stimulus has not been introduced only by our country. Throughout the world, even the developed countries introduced stimulus packages to get rid of the economic melt down.           Indian economy posted a growth of 6.1 per cent for the first quarter of 2009, lower than 7.8 per cent in the corresponding period of 2008-09. everything is transparent. Our hon. Finance Minister pleads for 7.9 per cent growth in the second quarter. Even the Organization of Economic Cooperation and Development has applauded Indian economy’s resilience and has projected a growth rate of seven per cent in 2010 and 7.5 per cent in 2011.           The industrial sector is a great parameter of macro economic fundamental. If we take the case of the industrial sector, it has shown clear signs of revival in recent months. The index of industrial production increased at a higher rate of 5.8 per cent during April-August 2009, as compared with a growth of 4.8 per cent in the corresponding period of the previous year. The latest number indicates that the industrial sector is growing by 9-10 per cent.           The core infrastructure sector, with the rate of 26.7 per cent in the index of industrial production posted a growth of 4.8 per cent during April-August 2009, up from 3.3 per cent in the corresponding period of the previous year. What does it indicate? It indicates that we are moving forward. This is the clear indication.           With the economy back on the roll and disposable incomes rising, just news came out yesterday saying that the car sales are posting highest growth in nearly the past six years. In nearly six years, the car sales are up a massive 61 per cent. What does it mean? The demand has been helped by the surge in the stock market.           In the case of services, India is such a country which has been proving its potentiality in the service sector, since 1991. The performance of the service sector during April-July 2009 continues to follow the pattern witnessed in the 4th quarter of 2008-09. Trade-related services such as cargo handled at major sea and airports decelerated, reflecting a contraction of trade. Trade has been declined and everybody knows it. But our Commerce Minister, Shri Anand Sharma said this and I quote: “India’s exports have been falling since October 2008, though the pace of decline has been arrested in recent months. The country’s merchandise export which had declined by 38.9 per cent in May 2009, started showing signs of improvement and the downturn has been arrested to a single digit level of 6.6 per cent in October this year.”   It is hoped that the Government exports would grow by 15 per cent in the next fiscal year.  Other domestic activity related services such as communication and construction have begun to show signs of up turn.  The railway revenue earning freight traffic recorded good growth. In the first five months of 2009-10, we are admitting that the fiscal deficit of the Central Government was 54.9 per cent.  We never say that we are going to violate the FRBM Act but the situation has come to such a pass that the FRBM could not be sustained right at this economic scenario.  Therefore, when the situation will start improving the Government will be reverting back to FRBM discipline.  There need not be any worry for anybody. What is the position of our foreign exchange market?  Foreign exchange market remained orderly during 2009-10 with the rupee exhibiting a two-way movement against major currencies. In terms of the real exchange rate, the six currency trade base, real effective exchange rate moved up from 96.3 per cent to 104.2 per cent by October 2009. What is the situation of stock market?  It is also promising, Sir.  Stock market staged a smart recovery reflecting large foreign institutional investment inflows due to the optimistic outlook for the Indian economy. When the Indian economy has been reverted back to normalcy then the appetite of foreign investor also has been growing in commensurate with the progress of our economy.  This has been reflected in the stock market.  It is a very simple matter.  It is as easy as day light. I am now going to brief you the situation in the external sector. India’s external account remains comfortable during the current financial year.  Merchandise State contracted due to depressed external demand and slow-down of the domestic economy with imports declining more than export.  Trade deficit in the first quarter of 2009-10 is higher than 14.6 billion in fourth quarter of 2008-09 due to rise in crude oil price. Sir, the capital account showed a turn around from negative balance in the last second quarter of 2008-09 to the positive balance of 6.7 billion during first quarter of 2009-10. Our foreign exchange reserve is robust and is now hovering around 284.4 billion dollar by the last month.  However, we cannot wish away the seamy side of our economy.  Yes, there is Achilles’ heel that we cannot ignore. Total employment in the economy has improved in recent years but the labour force has grown even faster leading to an increase in the unemployment rate.  Permanent employment in organised sector has decreased although organised sector firms may be increasing their informal employment.  Economic growth across the region has not been balanced. Much higher level of human development can be achieved with the given system of economy if only the delivery system is improved.  Shri Yashwant Sinha was accusing the Government that programmes like NREGA and preparation of BPL list are not being implemented in the States.  May I ask our former Finance Minister whether it is incumbent upon the Central Government to implement the NREGA scheme in Jharkhand around his residence or in his village?  Is it incumbent upon the Central Government to prepare the BPL list in the village where Shri Yashwant Sinha resides? DR. SANJAY JAISWAL (PASCHIM CHAMPARAN): It is President’s rule there.  So, it is your responsibility. SHRI ADHIR CHOWDHURY : The President Rule has been imposed for the last few months only. What I am telling is that he was also the Finance Minister of our country.  So, he must know being in the federal structure, all the responsibilities cannot be borne  out by the Central Government.  There is the Union List, the Concurrent List and the State List. We have already admitted that due to the poor delivery mechanism, a number of welfare schemes which are available in our country could not reach to the common people.  सभापति महोदय : झारखंड में तीस वर्षों से पंचायती राज के चुनाव नहीं हुए। ये सारी योजनाएं पंचायत राज के द्वारा लागू होती हैं। SHRI ADHIR CHOWDHURY : So far as agriculture is concerned, India is not sufficient for producing all agricultural commodities that are required by us.   Especially, there is a chronic shortfall of edible oil and pulses in our country.  Every year, India imports about 40 per cent of edible oil and 12 to 15 per cent of pulses that are required by us.  This year, we know that the entire country has been inflicted by the fury of nature named after drought, flood, etc.  We have to face the onslaught of drought and the onslaught of environmental extreme events whether we like it or not.  The area under food crop declined due to natural calamities.  It has declined from 69.22 million hectares to 63.78 million hectares.  The total target was fixed at 239 million tonnes for food grains but it is expected to be 233 million tonnes.  It demonstrates a shortfall of food grains.  The Department of Agriculture has declared this year 299 districts in 12 States as drought affected.  Is it that the drought has been brought by our Government?  Will the Central Government be liable for the prevalence of drought and flood?  I got surprised by the queen argument made by the Opposition and even by the former Finance Minister.  I would recall for the former Finance Minister what was the Minimum Support Price of paddy during his tenure.  During NDA regime, the Minimum Support Price of paddy was Rs.530 plus Rs.20 but during the UPA regime, in this year, 2009-10, the Minimum Support Price of paddy has been increased to Rs.950.  … (Interruptions) I know that it will incur your anger and frustration.  Only five essential commodities with high inflation rate is a matter of concern.  Our Prime Minister has expressed concern; the Finance Minister has expressed concern; and the UPA Government has expressed concern for the inflation.  But sometime things are controllable and manageable by us and but something is beyond our capacity. That has to be admitted. Out of 17 essential commodities, a high inflation rate was witnessed in respect of wheat, rice, pulses, potatoes and onions. We need to understand the factors that affected the price of every commodity. The area under cultivation was reduced and production dwindled because these are dependent on weather and technology. This has to be admitted. Increase in the Minimum Support Price had resulted in the purchasing power of farmers which resulted in their enhanced consumption pattern and when the purchasing power increased and consequently consumption capacity enhanced.  But there was a constraint in the supply side. This is the logic of economics. There is a demand and consumption mismatch which has been reflected due to increase in the purchasing power and consequent consumption power of people. Last but not least, there is an effect of the international prices. Though there was an increase in the total food grain production in the year 2008-09, the production of some of the food articles such as pulses, sugar have been lower. The demand for commodity was growing because of the rise in income of the people and consequently there was hardening of international prices because of hike in fuel prices, then there was the delayed monsoon and the affect of drought. All these factors pushed up the prices of the food articles. The progressive policies of the UPA Government led to the increase in the disposable income of the poor people and this led to the propensity to consume and thus resulting in the increase in the demand for every commodity. This happened because of the increased purchasing power of the poor people by way of NREGA. 619 districts in the country have been covered by the programme and the outlays to this programme are proposed to be increased by a hopping 144 per cent. As a former Minister you would know that this is a demand driven programme. The more you want, the more you will be paid. This is one programme which has been appreciated throughout the world except my friends from the NDA. Sugar prices increased, but why? The price of sugar increased on account of declining area of cultivation of sugarcane and consequently there was lesser production of sugarcane. Production declined by 4 per cent and prices increased by 10 per cent. In June, 2008 while production declined by 20 per cent, prices increased by 45 per cent in June, 2009 and still that is prevailing.  Shift in acreage from sugarcane to other crops like wheat was another reason and this was because of higher MSP and this got reflected in the drop of sugarcane acreage and that resulted in the declining of sugar recovery. The prices of pulses rose on account of demand and supply mismatch and hardening of international prices. The area under cultivation and production of potato in the year 2008-09 was estimated to be 18.10 lakh hectares and 311.27 lakh metric tonnes respectively as compared to the previous year which was 17.19 lakh hectares and 304.42 lakh metric tonnes. The production in 2008-09 was lower than that of in 2007-08 and this contributed to price rise.  Presently, cold storage potatoes are mostly meant for consumption. We are optimistic that potatoes from early harvesting in Punjab and Haryana and other places will be coming in the market and it will help to stabilise the prices of potatoes.           So far as onions are concerned, we know that onions are highly perishable bulk crop.  Slight increase in rainfall affects their quality and productivity. Floods in Andhra Pradesh, Karnataka, and heavy rains in Maharashtra affected khariff crop of onions and supply to markets across the country. These are accounts of truth.           As far as wheat and rice are concerned, average wholesale price can be attributed to minimum support price.  Our Prime Minister also admitted that inflation of food articles was attributable to the increase of MSP.  The Government launched a scheme on 28.7.08 to distribute one million tonnes of edible oil to the States at a subsidy of Rs. 15 per kilogram and that subsidy further increased to Rs. 25 per kilogram in June, 2009.   We need not worry about our principle foodgrain.            In the Central pool, as on 1.11.09, total availability of foodgrain was 268.88 lakh tonnes and total offtake was 127 lakh tonnes. The balance as on 1.4.2010 will be 141.88 lakh tonnes.  Bufferstock norm is 40 lakh tonnes and strategic reserve is 30 lakh tonnes and as on 1st April, the stock will be 70 lakh tonnes.           As regards the stock of rice,  actual stock is 153.49 lakh tonnes, bufferstock norm is 52 lakh tonnes and strategic reserve is 20 lakh tonnes.           Therefore, we should not be unnecessarily concerned over our foodgrain capacity in our country.  Inflation is a matter of concern for all of us.  The Government has been burning the midnight oil to get rid of the pressure of inflation.            Sir, I am hailing from Murshidabad of West Bengal. Murshidabad has not only been recognised as the most backward district in our country but it is also recognised as the district with the highest concentration of minorities in our country.  Every year, flood used to inundate large areas of Murshidabad. Over the years, people of my district have been demanding the implementation of a master plan named as Kandi Master Plan.  I would request the hon. Finance Minister to release funds for the Kandi Master Plan of Murshidabad in West Bengal.            We are discussing the economy of our country and we are all responsible Members of Parliament.  In this situation, we should not make any lopsided comments while discussing the economic scenario because if we do not make a healthy discussion, then a message may go throughout the country that we are unnecessarily clamouring on the price situation of the country because the middlemen, the hoarders and the black marketeers of our country who may take advantage of these kinds of discussions.  Sometimes  the criticisms of this Government come to the help of those black marketeers and hoarders.  The Government has issued a number of directions, a number of orders to put a check on hoarders and black marketers I think under the leadership of Dr. Manmohan Singh and Chairperson of the UPA, Madam Sonia Gandhi, the UPA II Government will be marching ahead.  There is concern about it.  With these words, I am supporting the Demands for Supplementary Grants (General). डॉ. संजय जायसवाल :माननीय सभापति महोदय, एक मिनट मेरी बात सुन ली जाए।  कृपा करके इनको दो मिनट समय और दिया जाए ताकि सप्लीमेंट्री डिमांड फार ग्रांट्स के बारे में एक शब्द तो वह बोल सकें, जिससे हम जान सकें कि ...( व्यवधान) सभापति महोदय : आप बैठ जाइए।  श्री शैलेन्द्र कुमार जी। …( व्यवधान) श्री शैलेन्द्र कुमार (कौशाम्बी):माननीय सभापति महोदय, आपने मुझे वर्ष 2009-10 की अनुदानों की अनुपूरक मांगों (सामान्य) पर चर्चा करने का मौका दिया, इसके लिए मैं आपका आभारी हूं।  माननीय मंत्री जी ने इसे प्रस्तुत किया है और प्रतिवर्ष अनुपूरक बजट की मांग की जाती है।  मैं माननीय मंत्री जी से आपके माध्यम से कहना चाहूंगा कि वह जरूर जानकारी दें कि इस बजट में आम आदमी की भागीदारी के लिए कोई उपाय किए हैं या नहीं और विकास में आम आदमी की भागीदारी के लिए सदन में किसी विचाराधीन याचिका पर वित्त मंत्रालय ने कोई जवाब दिया है या नहीं?  याचिका में प्रस्तावित वोटरशिप के उपाय के अलावा सरकार के पास विकास में आम-आदमी की भागीदारी के अन्य उपाय विचाराधीन हैं या नहीं? इसका जवाब आप जरूर देंगे।             अभी बात कही जा रही थी कि एयर इंडिया 800 करोड़ रूपए के घाटे में है, इसलिए 800 करोड़ रूपए की डिमांड की गयी है।  जो अब तक कुल 60 हजार करोड़ रूपए के घाटे में है, मेरे ख्याल से एयर इंडिया, इंडियन एयरलाइंस के जो मर्जर की बात है, इसमें बहुत बड़ा असंतोष कर्मचारियों और खासकर पायलटों में है।  इसके लिए स्ट्राइक भी हुयी है।  ग्रामीण विकास मंत्रालय के बारे में बड़े विस्तार से यशवंत सिन्हा जी ने अपनी बात रखी।           महोदय, आप इस विभाग के मंत्री रह चुके हैं और हम आपके सुनने के लिए बैठे हैं कि जब आप अपनी सीट से बोलेंगे, तो इसके बारे में ज्यादा विस्तार से बोलेंगे।  आज जब गांव में हम लोग जाते हैं, तो हम देखते हैं कि ग्रामीण विकास से संबंधित तमाम समस्यायें खड़ी हैं, चाहे वह इंदिरा आवास हो या बीपीएल सूची का मामला हो, या वृद्धापेंशन का मामला हो या बच्चों के वजीफे का मामला हो। पीएमजीएसवाई की सड़क के बारे में अभी यशवंत सिन्हा जी ने बड़े विस्तार से कहा और सर्वशिक्षा अभियान के बारे में भी कहा कि जहां पर चालीस लड़के हैं, वहां सात-आठ अध्यापक हैं और जहां पांच सौ बच्चे हैं, वहां सिर्फ दो अध्यापक हैं।  इस तरह का जो असंतुलन हैं, इसे दूर करना चाहिए।  तमाम स्कीम्स हैं, जो बेसिक गरीब हैं, खासकर जो बीपीएल कार्ड धारक हैं, उनके लिए फायदे की बात है।  अस्पताल की स्थिति के बारे में आपने विस्तार से देखा ही होगा। जहां-जहां भी हमारी सीएससी, पीएससी है, उनकी स्थिति बहुत ही दयनीय है।           जहां तक विद्युत उत्पादन की बात है, हम लोगों के यहां ग्रामीण स्तर पर चार-पांच घंटे से ज्यादा बिजली आ ही नहीं पाती है।  कई बार एक-एक हफ्ते तक बिजली नहीं मिल पाती है।  पावर प्रोजेक्ट और विद्युत उत्पादन बढ़ाने के लिए जो डिमांड की गयी है, उस पर भी बड़ी गंभीरता से सोचना पड़ेगा।  पेयजल की स्थिति तो और भी दयनीय है।  जहां भी हम जाते हैं, हमसे इसके लिए डिमांड की जाती है।  शुद्ध पानी, पेयजल हम आज तक ग्रामीण स्तर पर नहीं दे पाए हैं।  इन तमाम मुद्दों से जुड़े हुए सवाल हैं।  प्रतिवर्ष डिमांड ग्रांट्स अनुपूरक बजट में मांगी जाती हैं।  ठीक है, आप दे दीजिए।  खासकर जो गरीब लोग हैं, उन तक ये योजनायें पहुंचें, यह हमारा मकसद होना चाहिए और सरकार का भी मकसद होना चाहिए।             इन्हीं शब्दों के साथ अपनी बात को मैं समाप्त करता हूं, चूंकि दूसरे माननीय सदस्य भी इस पर बोलना चाहेंगे।   श्री गोरखनाथ पाण्डेय (भदोही):सभापति महोदय, आपने अनुपूरक मांग विधेयक 2009-10 के संदर्भ में बोलने का अवसर दिया, इसके लिए धन्यवाद।  अभी मैं पूर्व वित्त मंत्री जी को बड़े ध्यान से सुन रहा था और उसके बाद अधीर चौधरी जी ने भी अपनी बातों को बड़े विस्तार से कहा।       वित्त मंत्री जी इस समय सदन में उपस्थित नहीं हैं। मैं आपके माध्यम से वित्त मंत्री जी का ध्यान आकर्षित करना चाहूंगा कि 25 हजार करोड़ रुपये की जो अनुपूरक मांगें रखी गई है, उसमें शुरुआती तौर पर जो बातें आईं, जैसे हमारे पूर्व वित्त मंत्री जी ने कहा कि एयर इंडिया के लिए 800 करोड़ रुपये की प्रतिभूति की मांग है जबकि 60 हजार करोड़ रुपये के घाटे की बात बताई गई है। इसी तरह उन्होंने और भी बातें बताईं। विश्व की आर्थिक मंदी को लेकर अपने देश के बजट की अस्त-व्यस्तता की बात कही गई। मैं कहना चाहूंगा कि विश्व की आर्थिक मंदी अपनी जगह है, लेकिन हमारी अपनी आर्थिक व्यवस्था की नीति के लिए भी सरकार की जिम्मेदारी होती है। हम नीतियां बनाते हैं और उसके आधार पर बजट बनाते हैं। जब हमारी नीतियों में गड़बड़ी होती है तो उसका खामियाजा हमारे देश, प्रदेश और गरीब जनता को भुगतना पड़ता है।           मैं आपके माध्यम से सरकार का ध्यान ग्रामीण अंचलों की ओर दिलाना चाहता हूं। गांवों में गरीब लोग रहते हैं। गांवों में लोग झुग्गी-झोंपड़ियों में रहते हैं। उन्हें अपनी आवश्यक आवश्यकताओं को पूरा करने में भी कठिनाई हो रही है। आज महंगाई चरम सीमा पर है। यदि देखा जाए, तो चावल, चीनी, दाल, आलू, खाद्यान्न तेल आदि के दाम आसमान छू रह हैं। सरकार कहती है कि जब हमारी मांग अधिक होगी, आपूर्ति कम होगी, तो हमें आयात करना पड़ेगा। इससे पहले वित्त मंत्री जी और कृषि मंत्री जी ने बजट के समय कुछ बातें कही थीं। उन्होंने कहा था कि देश में अनाज के पर्याप्त भंडार हैं। लेकिन उसके कुछ ही दिन बाद आयात के साथ-साथ दामों में वृद्धि पर भी अंकुश नहीं लग पाया। माननीय कृषि मंत्री जी ने कहा कि अभी त्योहारों का समय है, इसलिए चीनी के दाम बढ़ सकते हैं। दूसरे ही दिन बाजार में चीनी के दाम बढ़ गए। एक परिवार को चलाने के लिए परिवार का मुखिया भी अपने वर्ष भर के लिए आय और व्यय का ब्यौरा रखता है। अगर वह किसान है तो खाद्य सामग्री की व्यवस्था करता है कि हमारा परिवार सालभर किस तरह रहेगा। लेकिन मुझे अफसोस के साथ कहना पड़ रहा है कि यहां आंकड़ों के भ्रमजाल की बात की जा रही है। यहां महंगाई से हटकर आंकड़े बताए जा रहे हैं।           अभी अधीर चौधरी जी कह रहे थे कि कारों की बिक्री में वृद्धि हुई है, लोगों की जेबें भारी हुई हैं, इसलिए कारें खरीदी जा रही हैं। कारों में वे लोग चढ़ते हैं जिनके पास आमदनी के स्रोत हैं। जो लोग दो जून की रोटी के लिए मोहताज हैं, वे कारों का केवल सपना ही देख पाएंगे। भारत गांवों का देश है। यहां की 80 प्रतिशत जनता गांवों में रहती है। गांवों में वे लोग बसते हैं जो इस देश की तस्वीर हैं, इस देश का आइना हैं, जो गरीबी से जूझ रहे हैं। हमारे बजट में बहुत सारी व्यवस्थाएं दी गई हैं। यहां इफ्रास्ट्रक्चर की बात कही जा रही है। हमारी आधारभूत व्यवस्थाएं बढ़ी हैं। यदि व्यवस्थित चीजों की ओर भी ध्यान दिया जाए, जैसे पीएमजीएसवाई की बात हमारे और माननीय सदस्यों ने कही है। हम गांव के लोग हैं, गांव में रहते हैं और गांव के लोगों से रोज सरोकार हो है। हम पेशे से किसान भी हैं। मैं आपका ध्यान पीएमजीएसवाई योजना की तरफ दिलाना चाहूंगा। उन सड़कों को देखा जाए तो मानक काफी घटिया किस्म का है। एक वर्ष के अंदर ही सड़क में गड्ढे हो जाते हैं। सड़कें टूट जाती हैं, सड़कें बैठ जाती हैं। जितनी लागत लग रही है, घटिया मानक से सड़कें बनाई जा रही हैं। इसकी इन्क्वारी होनी चाहिए, कमेटी बिठाई जानी चाहिए।           मैं आपका ध्यान उत्तर प्रदेश, विशेष रूप से अपने लोक सभा क्षेत्र भदोही की तरफ ले जाना चाहूंगा। हमने उधर भी सड़कों को देखा है, निरीक्षण किया है। वहां घटिया किस्म की सड़कें हैं जिन्हें व्यवस्थित किया जाना चाहिए।           पेयजल एक बहुत बड़ी समस्या है। जब हम अपने क्षेत्र में होते हैं तो जो लोग मिलने आते हैं, उनमें से अधिकांश लोग पेयजल की समस्या से ग्रसित हैं। सरकार का ध्यान उस तरफ जाना चाहिए। छोटी सी निधि मिलती है। यदि हम चाहें कि अपने क्षेत्र के लोगों की प्यास बुझा सकें, तो उस निधि से वह भी नहीं कर पाते, विकास करना तो दूर की बात है ।           महोदय, सर्वशिक्षा अभियान की तरफ भी हम सरकार का ध्यान ले जाना चाहेंगे।  गरीब लोगों के बेटे शिक्षा के लिए गांव में मोहताज हैं, उन्हें अच्छी शिक्षा नहीं मिल पाती। उनके बेटे अच्छी शिक्षा नहीं पाते। उनमें भी गड़बड़ियां हैं। इसलिए उसकी भी इंक्वायरी होनी चाहिए, उस तरफ भी सरकार का ध्यान जाना चाहिए।           मान्यवर, मैं नरेगा के बारे में भी कुछ कहना चाहता हूं। अभी हमारे सम्मानित सदस्य ने कहा  कि दूसरी बार हमारी सरकार आयी है। निश्चित रूप से यह सरकार दूसरी बार आयी है, इसे कहने में हमें कोई संकोच नहीं है,  लेकिन गांव के वास्तविक स्वरूप को आप देखिये।  मैं किसी की आलोचना नहीं करना चाहता। यह बहुत अच्छी स्कीम है। सरकार ने उन गांवों में रहने वाले गरीब लोगों, झुग्गी-झोंपड़ियों मे रहने वाले लोगों के  लिए एक अच्छी व्यवस्था दी है। उनकी रोजी-रोटी चलाने के लिए सरकार द्वारा अच्छी योजनाएं बनायी गयी हैं।  लेकिन वे योजनाएं गांव मे पहुंचते-पहुंचते फ्लाप हो जाती हैं। गांव में नरेगा में काम करने वाले मजदूर को उसकी मजदूरी नहीं मिल पा रही है। चीजें चाहे प्रदेश सरकार के पास जा रही हों, ...( व्यवधान) उस सरकार की तरफ भी आप देखिये।  ...( व्यवधान)           मान्यवर, मैं आपके माध्यम से कहना चाहूंगा कि नरेगा निश्चित रूप से एक अच्छी योजना है। लेकिन जमीन तक पहुंचते-पहुंचते इसका विकृत स्वरूप गांव में चलकर देखा जा सकता है। इसकी भी जांच होनी चाहिए और इसमें जो भ्रष्टाचार है, उस पर अंकुश लगना चाहिए।  हम मंत्री जी को इसके लिए धन्यवाद देना चाहेंगे, क्योंकि उन्होंने इस कमेटी के अध्यक्ष के रूप में माननीय सांसदों को नियुक्त किया है। लेकिन उसका जो वास्तविक स्वरूप है, उसके लिए जांच और गांव में सुधार की जरूरत है तभी इस पर अंकुश लग सकेगा।           मान्यवर, गांव में गरीब रहता है। गांव में ऐसे लोग रहते हैं जिनकी आवश्यक आवश्यकताएं रोटी, कपड़ा और मकान हैं। आज इस महंगाई के युग में उन किसानों, गरीबों, मजदूरों को रोटी के लाले पड़े हैं। आज दाल की कीमत  काफी बढ़ चुकी है। यह रोज के खाने की चीज से दूर हो चुकी है, यह दवा बन चुकी है।           मान्यवर, आलू के रूप मे लोग अपने भोजन की व्यवस्था कर लिया करते थे, लेकिन आज उसके दाम भी काफी बढ़ चुके हैं। महंगाई काफी बढ़ गयी है।  हमारे वित्त मंत्री और कृषि मंत्री जी का ध्यान उस ओर भी जाना चाहिए। मैं आपके माध्यम से कहना चाहूंगा कि गांव मे रहने वाला गरीब, मजदूर और झोंपड़ी  में रहने वाले किसान के लिए भी कोई व्यवस्था होनी चाहिए। इस बजट में उसकी तरफ भी आपको ध्यान देना चाहिए। उन लोगों के लिए रोटी, कपड़ा और मकान की व्यवस्था होनी चाहिए।  इस बजट में उनके लिए व्यवस्था होनी चाहिए और उसे सबसे पहले प्राथमिकता देनी चाहिए।           इन्हीं शब्दों के साथ मैं अपनी बात समाप्त करता हूं। श्री मंगनी लाल मंडल (झंझारपुर): आदरणीय सभापति महोदय, यशवंत बाबू ने सरकार की आर्थिक नीति, मौद्रिक नीति का बहुत ही तथ्यात्मक विश्लेषण किया। सरकार की आर्थिक और मौद्रिक नीति का सामाजिक और आर्थिक क्षेत्र में जो दुप्रभाव पड़ा, उसका उन्होंने बहुत अच्छा विश्लेषण किया है। यह सप्लीमैंट्री बजट संवैधानिक प्रावधान है और आते ही रहते हैं। लेकिन सप्लीमैंट्री बजट में यह माना जाता है कि एक वित्तीय वर्ष में जो मूल बजट है, उसके बाद कोई अत्यावश्यक काम आ गया, तो उसके खर्च पर अनुमति  लेने के लिए सप्लीमैंट्री बजट आता है। इसमें टीए-डीए आदि सब चीजें हैं। उनका पूर्वानुमान नहीं किया गया होगा। सप्लीमैंट्री बजट में 105 मांगें हैं, जिनके लिए कुल 30,942.62 करोड़ रुपये मांगे गये हैं।  इसमें बहुत निवल नकद व्यय का प्रस्ताव है, उसकी कुल राशि 25,725.22 करोड़ रुपया है। यशवंत बाबू जिस फिस्कल डेफीसिट की बात कर रहे थे, उसमें वृद्धि होने वाली है। आजकल रिजर्व बैंक ऑफ इंडिया, भारत सरकार के वित्त मंत्रालय, प्रधान मंत्री के आर्थिक सलाहकार और योजना आयोग के द्वारा एक ही मैराथन एक्साइज चल  रही है कि  हमारी विकास दर क्या होगी? अब 5.5 से लेकर साढ़े छः तक सब अटक जाते हैं। यह विकास दर का बहुत बड़ा अभ्यास हो रहा है, लेकिन राजस्व की प्राप्ति कहां से होगी, इसकी दिशा में सरकार का कम ध्यान है। इस 4.14 लाख करोड़ रूपए की कमी आने वाली है। सरकार ने जो मूल बजट पेश किया था, उस बजट में जो अनुमान किया था, उसके बारे में अर्थशास्त्रियों ने अनुमान किया है कि 6.14 लाख करोड़ रूपए की राजस्व की प्राप्ति हो सकती है, करों के द्वारा संग्रह हो सकता है। जब चार लाख करोड़ रूपए का जब बर्डेन होगा तो जीडीपी में 6.8 प्रतिशत तक का घाटा होगा। फिर भी सरकार मेराथन एक्सरसाइज कर रही है।           अभी गरीबी के बारे में माननीय सदस्यों ने चर्चा की है। एक बात मैं यह कहना चाहता हूं कि काम के अधिकार को मौलिक अधिकार में शामिल किया जाए, यह लड़ाई इस देश में बहुत पुरानी है। जो लोग समाजवादी आंदोलन से आए हैं, वे जानते हैं कि काम दो, नहीं तो बेरोजगारी भत्ता दो, हमारी पुरानी मांग रही है। हम लोग इसके लिए संघर्ष करते रहे हैं और जेल भी जाते रहे हैं। नरेगा के द्वारा काम के मौलिक अधिकार का समावेश किया गया है। इसमें प्राविजन किया गया है कि अगर 15 दिनों तक काम नहीं मिलेगा तो उसकी प्रतिपूर्ति की जाएगी, पैसा दिया जाएगा सरकारी खजाने से। यह बहुत क्रंतिकारी कार्यक्रम है। लेकिन यह बात भी सही है कि नरेगा में जो कमियां हैं, उनको दूर किया जाना चाहिए क्योंकि नरेगा से लोग यह समझते हैं कि भौतिक परिसम्पत्तियों के सृजन पर ध्यान नहीं देना है और काम की गुणवत्ता पर ध्यान नहीं देना है। यह जरूर है कि गरीबों को जितने बड़े पैमाने पर इससे काम मिलना चाहिए, उसमें धोखाधड़ी हो रही है। इतना बड़ा क्रान्तिकारी कदम सरकार ने उठाया, नरेगा कार्यक्रम को लाई है और वर्षों का जो संघर्ष नौजवानों, विद्यार्थियों, समाजवादियों का था कि या तो काम दो या बेरोजगारी भत्ता दो, उसे पूरा किया है। इसमें जो गड़बड़ी है, उसको दूर किया जाना चाहिए चाहे वह गुणवत्ता का मामला हो, चाहे परिसम्पत्ति के सृजन का मामला हो।           मैं यह मानकर चलता हूं कि सरकार देश में गरीबी मिटाने की बात करती है, लेकिन गरीबी कितनी है उसका आकलन सरकार के पास नहीं है। मैं मानता हूं कि नारायणसामी जी पक्के कांग्रसी हैं, लेकिन वह समाजवादी नहीं हैं क्योंकि जब बजट आता है, जब गरीबी मिटाने की बात आती है, तो पंडित जवाहर लाल नेहरू की सोशलिस्टिक पैटर्न ऑफ सोसाइटी, कोआपरेटिव कॉमनवेल्थ और महात्मा गांधी के ट्रस्टीशिप के सिद्धान्त की चर्चा हम कभी नहीं करते हैं। गरीबी मिट नहीं रही है बल्कि बढ़ रही है, अमीरी बढ़ रही है इस देश में। इसीलिए उन्होंने ठीक ही कहा है कि इस बजट में जो मांग संख्या 80 है, इसमें मूल और पूरक, दोनों मिलाकर 1,06,803.28 करोड़ रूपए की मांग की गयी है। यह पैसा क्यों लिया जा रहा है, उसके बारे में कहा गया है कि देश में गरीबी रेखा से नीचे जीवनयापन कर रहे लोगों अर्थात बीपीएल का सर्वेक्षण करने संबंधी प्रशासनिक व्यय की पूर्ति हेतु नकद व्यय होगा। सबसे अन्त में कहा गया है कि देश में बीपीएल सर्वेक्षण हेतु इससे नकद व्यय होगा। यह जो पैसा पूरक बजट के द्वारा लिया जा रहा है, उसमें बीपीएल सर्वेक्षण की बात कही जा रही है। सरकार ने कहा कि इसके जो पैरामीटर्स हैं, उनके बारे में सरकार ने अभी निर्णय नहीं किया है। कभी सरकार नेशनल सैंपल सर्वे आर्गनाइजेशन के आंकड़े को लाती है, कभी सरकार कहती है कि योजना आयोग के आंकड़े विश्वसनीय हैं और सारे विभागों, इनक्लूडिंग ग्रामीण विकास विभाग, ने इसको मांगा है, जो कि विश्वसनीय नहीं है। यशवंत बाबू ने ठीक ही कहा अपने भाषण में, मैं अपने को उससे सम्बद्ध करता हूं। उन्होंने कहा कि गरीबी का सर्वेक्षण आप नहीं कर सकते हैं, तो दो काम आप कर दीजिए। डॉ. राम मनोहर लोहिया जी ने कहा था कि इस देश में जब तक विलासिता पर प्रतिबंध नहीं लगेगा, जब तक फिजूलखर्ची पर प्रतिबंध नहीं लगेगा, जब तक अपव्यय पर टैक्स नहीं लगेगा, इन तीनों चीजों पर टैक्स लगाओ, तब गरीबी घटेगी। आज टैक्स लगाया जाता है तो वह सम्पत्ति पर लगाया जाता है या आमदनी पर लगाया जाता है। खर्चे पर टैक्स नहीं लगता है। इस देश में जो दौलत पैदा करता है, 8000 करोड़ रुपए का मकान बनाता है, घर की छत पर हैलीकॉप्टर उतारने के लिए हैलीपैड बनाता है और कहता है कि वह अपनी पत्नी को गिफ्ट करूंगा, यह फिजूलखर्ची की पराकाष्ठा है। सरकार का इस पर कोई नियंत्रण नहीं है कि जो पैसा उत्पादन में लगना चाहिए, जो पैसा गरीबी मिटाने में लगना चाहिए, जो पैसा आधारभूत संरचना के विकास पर लगना चाहिए, वह पैसा फिजूलखर्ची, अय्याशी पर खर्च हो रहा है, अपव्यय हो रहा है। उस पर या तो टैक्स लगाओ या उसे प्रतिबंध करो, लेकिन सरकार यह नहीं कर रही है। इसलिए यशवंत बाबू ने कहा कि आप गरीबी मिटाने का नारा देते हैं, गरीबों की तो संख्या बढ़ रही है।            झारखंड में 30 प्रतिशत गरीबी रेखा से नीचे लोग रहते हैं, यह जो कहा गया और बिहार का उन्होंने 30 प्रतिशत कोट किया। योजना आयोग का जो बिहार का आंकड़ा है, राष्ट्रीय आंकड़ा 22 प्रतिशत है, तो बिहार का 42 प्रतिशत है। लेकिन परकेपिटा इनकम बिहार से ज्यादा झारखंड का दिखाया गया है। झारखंड में गरीबी ज्यादा है, लेकिन परकेपिटा इनकम बिहार से ज्यादा झारखंड में इसलिए है कि वहां टाटा का माल है, टाटा का पैसा है। इसके अलावा वहां कोयले का पैसा बैंकों में जमा होता है, उसके बाद मुख्यालयों में वह पैसा पांच बजे के बाद ट्रंसफर हो जाता है। झारखंड में पैसा नहीं रहता है। बैंकों में जितना पैसा कोल का जमा होता है, जितना पैसा टिस्को, टेल्को का जमा होता है, वह पैसा मुम्बई, कोलकाता आदि दूसरे बड़े शहरों में जहां हैड क्वार्टर्स हैं, पांच बजे के बाद ट्रंसफर हो जाता है। इस तरह यह दोहरी मार पड़ रही है। इस पर सरकार का कोई नियंत्रण नहीं है कि बैंक का पैसा जहां जमा हो, वहां कितना प्रतिशत खर्चा हो। अगर गरीबों का सर्वेक्षण कराने में आप विफल हैं, तो अमीरों का सर्वेक्षण कराएं। उसके लिए कोई पैरामीटर बनाने में प्रॉब्लम नहीं होगा, क्योंकि अमीरी लोगों को दिखाई देती है। वैसे तो गरीबी भी दिखाई देती है, लेकिन सरकार आज तक यह नहीं कह सकी है कि देश में कितने प्रतिशत लोग गरीबी रेखा से नीचे रहने वाले हैं। यह जो 22 प्रतिशत योजना आयोग का आंकड़ा है, वह सही नहीं है, भ्रम फैलाता है, तथ्यहीन है और देश को धोखा देने के लिए है। इसलिए इस सप्लीमेंटरी बजट के माध्यम से जो पैसा लिया जा रहा है...( व्यवधान) सभापति महोदय : माननीय सदस्य, कृपया आसन को सम्बोधित करें। श्री मंगनी लाल मंडल :  महोदय, मैं तो अपनी बात कह रहा हूं, लेकिन ये लोग बीच में टोक रहे हैं। मैं इनसे यही कहना चाहता हूं कि आप हमसे नहीं, सरकार से पूछें। डॉ. मनमोहन सिंह जी बड़े आदरणीय हमारे लिए भी हैं, वह महान अर्थशास्त्री हैं, लेकिन संकल्प होना चाहिए देश में गरीबी मिटाने का। गरीबी को मिटाएं, गरीबी बढ़ रही है, गरीबों की संख्या बढ़ रही है।...( व्यवधान) जब हमारी सरकार थी, तो बाजारों में आग नहीं लगी थी। अभी आपके माननीय सांसद बता रहे थे...( व्यवधान) सभापति महोदय: कृपया बीच में टोकाटाकी न करें और अपना आसन ग्रहण करें। माननीय सदस्य, अब आप अपनी बात समाप्त करें। श्री मंगनी लाल मंडल : महोदय, मैं दूसरी बात कहना चाहता हूं। कृषि के मामले में सरकार ने कहा कि द्वितीय हरित क्रंति करेंगे। इसके लिए देश के कई जिलों का सर्वेक्षण कराया गया है। चीन आज हमसे कई मामलों में आगे है। इस देश में आर्थिक स्थिति बेहतर होने जा रही है, यह हमारी सरकार कहती है। पोर्टफोलियो इंवेस्टमेंट, एफडीआई के माध्यम से और स्टॉक एक्सचेंज के माध्यम से पैसे आ रहे हैं। सरकार कह रही है कि हमारे यहां पैसे की बरसात होने वाली है। फिर भी गरीबों का उद्धार नहीं होगा, लेकिन चीन में हमसे ज्यादा पैसा जाता है इसलिए की इंफ्रास्ट्रक्चर उसके पास हमसे ज्यादा है।           महोदय, एक बात बड़े आश्चर्य की है कि टोटल एरिया ऑफ एग्रीकल्चर लैंड है, चीन का क्षेत्रफल हमसे बहुत बड़ा है, वह हमारा चीन से बड़ा है। 18.00 hrs.  उनसे बड़ा क्षेत्र होने के बावजूद भी प्रति-हैक्टेयर हमारा प्रोडक्शन चीन से आधा है। यहां तक कि इजिप्ट से कम है। ...( व्यवधान) सभापति महोदय :  मेरे पास बोलने वाले आठ माननीय सदस्यों की सूची है, सदन की सहमति हो, तो उनके बोलने के बाद जीरो-आवर तक सदन की कार्यवाही बढ़ाई जाए। श्री तूफ़ानी सरोज (मछलीशहर):  पहले शून्यकाल ले लिया जाए।...( व्यवधान) सभापति महोदय:  अध्यक्ष महोदया की यह रूलिंग है, कृपया आप बैठ जाएं। जीरो-आवर आखिरी समय में होगा, आप कृपा करके बैठ जाएं। SHRI V. NARAYANASAMY : Already, the hon. Speaker has told in the morning that after this discussion, at the end of the day, the ‘Zero Hour’ will be taken up.  Already, it is the ruling of the Chair that the ‘Zero Hour’ will be taken up after this discussion. … (Interruptions) श्री मंगनी लाल मंडल :  महोदय, इसीलिए यह जो कृषि का उत्पादन है, इस बार भी कम होने वाला है। बाजार में महंगाई की और भयंकर आग लगने वाली है। आज जितने दाम हैं, उससे ज्यादा दूसरे दिन बढ़ जाते हैं। इसीलिए महोदय, यह जो कृषि अनुसंधान का क्षेत्र है, उसमें हमें ज्यादा उपज देने वाली वैराइटी को बढ़ावा देना चाहिए तथा कृषि विज्ञान पर ज्यादा खर्चा होना चाहिए। आज आवश्यकता इस बात की है कि प्रति-हैक्टेयर उत्पादन देश में बढ़े और सभी जानते हैं कि इस देश में खाद्यान्न कालाबाजारियों द्वारा तस्करी के माध्यम से बंगला देश भेजा जा रहा है, सरकार सबसे पहले उस पर नियंत्रण करे और जो होल्डिंग करने वाले हैं उन्हें पकड़कर जेल में बंद करे, तभी महंगाई रुकेगी, नहीं तो महंगाई रुकने वाली नहीं है। इन्हीं शब्दों के साथ हम इस सप्लीमेंट्री बजट का विरोध करते हैं। SHRI BANSA GOPAL CHOWDHURY (ASANSOL): Mr. Chairman, Sir, the hon. Finance Minister has placed the Supplementary Demands for Grants (General) before the House.  When the Union Budget was placed, at that time, the economy was in the midst of serious recession owing to global meltdown.            India’s GDP growth rate slowed down considerably from 9 per cent in 2007-08 to 6.7 per cent in 2008-09. The growth of the agriculture sector and the manufacturing sector is also being slowed down.  Actually the massive job loss and pay cuts across the sectors were witnessed since October, 2008.  What I would like to mention – and I would like to draw the attention of the hon. Finance Minister – is that after passing the Budget when the hon. Finance Minister is placing the Supplementary Budget, what is the economic scenario of the country at present.  The assessment of six lakh job losses made in the Economic Survey is a gross under-estimation.  Presently, actually, the job loss is much more around 50 lakh across the sectors and the export sector in particular.  The economy is badly suffering due to the wage cut, due to the job loss in the export oriented industries.  In this context, we would like to discuss regarding the stimulus packages already released, which have failed to arrest the ongoing spree of job losses and wage cuts.  That is still continuing.  The stimulus packages released from national exchequer to arrest the problem only helped the entrepreneurs and our common people, which are called in the Budget as ‘Aam Aadmi’, are not actually being helped and they are not getting the assistance.  There is the corporate sector, the big corporate houses.  I would like to concentrate here on the discussion regarding agricultural scenario which is most important due to the present scenario of inflation.  The reviving of agriculture from present crisis must be central to all exercises for competing economic slowdown.            The essence of the new liberal policies is to gradually weaken the role of the State and facilitate the interest of big corporates in the economy.            Sir, as you know, the public procurement continues to remain limited to a few major crops, and procurement operations are carried out in limited parts of the country.  I would like to mention that this year, with a 24 per cent rainfall deficit, 278 districts across 11 States of the country have been declared drought-hit.            Sir, our agricultural growth fell to 1.6 per cent in 2008-09. When we are facing serious inflation in our economy, there is no policy.   I would like to pose certain questions to the hon. Finance Minister during this discussion on the Supplementary Demands for Grants (General).  What is the main policy of the Government to check inflation and price rise?  What is the current scenario regarding the Public Distribution System that the Government is placing before the House?  The Public Distribution System is now in a mess. As you know, Sir, high inflation rate has not been checked because of four reasons.  The first one is new liberal policies of the Government; the second one is the weakening of the Public Distribution System; the third one is the failure to check hoarding; and the fourth one is increase in the fuel prices.            We are always being told that there is some global recession; there is some global impact in price rise.  All other things are being told.  We have been told in the series of documents published by the Government that it is due to the global scenario, we are facing this situation.  But actually in India, nearly 50 per cent of rise in price of petrol per litre and 25 per cent of rise in price of diesel per litre are on account of taxes and duties.  I would know from the hon. Finance Minister whether he is prepared to release these types of taxes and duties for the benefit of the general public.  The general public was described in the Budget as Aam admi. This year’s Budget was called as Aam admi Budget.           Sir, I am going to another point, which is very important.  The Government is saying, on the one side, that they are trying to mobilise resource through disinvestment proposals.  Which are these disinvestment proposals?  The hon. Finance Minister will say: “We have no such proposal to sell the public properties.  We have no such policy to sell the public interest and the public sector properties”.  But what is the actual scenario? I would just like to give you a brief picture. The non-Government shareholding profile of the PSUs already disinvested gives altogether a different picture. In BHEL, 32.28 per cent shares are in the hands of the private people.  Out of that, the general public hold only 1. 92 per cent.  In SAIL, out of 14.18 per cent shares disinvested the general public hold only 1.92 per cent. In ONGC, out of 25.86 per cent shares disinvested the general public hold only 1.69 per cent.  In GAIL, out of 42.66 per cent shares disinvested the general public hold only 2.27 per cent.  Sir, I would like to know for whom the Government is placing this Supplementary Demands for Grants (General). For whom are we trying to collect the resources?  The resources should be collected to check inflation.  The resources should be utilized for the Public Distribution System. The Public Distribution System should be strengthened. On the other hand, the Government is trying to disinvest these public properties only to accumulate this wealth for the privatisation of the industries of our country, which is very shameful. That is why I believe that the Government would change this policy; it  would take the path for universal Public Distribution System; and it would only open the doors of the  public sectors for the general public. SHRI B. MAHTAB (CUTTACK):  Mr. Chairman, Sir, I stand here to participate on the deliberations that are being made on the Supplementary Demands for Grants (General) for 2009-10.           The first batch of the Supplementary Demands for Grants (General) for 2009-10 includes 61 grants and two Appropriations. An approval of Parliament is sought to authorize gross additional expenditure of Rs. 30,942.62 crore.  The main heads of expenditure for which there would be a net cash outgo, include fertilizer subsidy of Rs. 3,000 crore; food subsidy of Rs. 3,458.98 crore;  Defence pension of Rs. 2,210 crore.  Pension to Central Government employees on implementation of 6th Pay Commission and other pensions run up to Rs. 4,533.33 crore; and transfer of disinvestment receipts  to National Investment Fund is of Rs. 3,139.90 crore. 18.12 hrs.                      (Shri Francisco Cosme Sardinha in the Chair)           The Government also seeks Parliament’s nod for equity transfer, equity infusion of Rs. 800 crore for Air India.  An amount of Rs. 1,200 crore is also proposed to be transferred to the National Calamity Contingence Fund, which is a welcome move.           The Government is also seeking two per cent interest subvention  to the Schedule Commercial Banks  in respect of  Rupee Export Credit and for this, Rs.200 crore is sought.  For Delhi Metro Phase-II, Rs. 350 crore; for loans to DMRC, Rs. 1,500 crore, for Bangalore Metro, Rs.135 crore; and for Chennai Metro, Rs. 40 crore  are proposed.            I would also like to draw the attention of this august House regarding the reimbursement of losses in the Ministry of Textiles.  The reimbursement of losses to the Cotton Corporation of India on account of MSP operation on cotton runs up to Rs. 500 crore.  I do not understand and I would like to hear from the Government what necessitated the loss relating to the Cotton Corporation of India and why Rs. 500 crore is being given there.           But I welcome the Grants-in-Aid to the State Governments for meeting additional  requirement under Integrated Child Development Services Scheme.            As has also been stated, additional  Central assistance for Externally-Aided Projects runs up to Rs. 1,400 crore.            So, these are the major components of the Bill and that is why there is the Supplementary Demands for Grants (General) before us for consideration.           Sir, it has been already stated by Shri Yashwant Sinhaji that the net cash outgo would be Rs. 25,725.22 crore, out of which Rs. 7,935 crore would be Plan and Rs. 23,006.96 crore would be Non-Plan.   It is said that there would be equivalent overall savings in other grants.           This argument is witty, no doubt but one fails to understand why we should spend as much as Rs.1,500 crore on imported decontrolled fertilizers and provide Rs.2,300 crore on indigenous urea as subsidy. Earlier on another occasion I had mentioned the amount of money that is being spent on import of fertilizers. Cannot the Government bring down the rate of imported fertilizers when you very well know that there is a nexus involved in it?           India’s spectacular 7.9 per cent GDP growth in the second quarter, that is, July-September of this fiscal year, should not have been entirely unexpected as the country’s industrial production figures were showing a steady upward movement? Most of this is due to the growth in manufacturing and this is heartening, particularly for what it means on the employment front. It might be a little too early to be happy about it. Let us wait for the third quarter figures. Why I say this? It is because the growth could be attributed to the stimulus packages as well as effect of the Sixth Pay Commission’s largesse. Agriculture might not have been taken into account in its entirety. But I think everybody would agree that one factor that did contribute to higher GDP growth was drastically reduced inflation and negative inflation in this period. But inflation has been picking up since.           What is intriguing in the recent IIP figures is that they have been robust despite the slow growth in credit off-take. According to one Report, credit outstanding fell by Rs.21,000 crore in the second half of October in contrast to the first half. The conventional wisdom is that if bank credit growth slows, so does industrial growth. RBI has lowered interest rates so that the industry gets access to bank credit in bad times such as the economic slow down. But the spurt in IIP figures in recent weeks defies this theory. What would the Finance Minister say about it?           Some say India has been saved from financial crisis only because the policy was conservative and did not act to improve the efficiency of the system. But this view is not right. There were policy interventions in both monetary and financial sectors. We should certainly give credit to them. But still there are challenges. Managing economic recovery and exiting the expansionary credit policy may be the immediate challenges facing the Indian economy today. Therefore, sustaining the post-reform growth momentum requires growth to be broad-based and inclusive. We should focus on policies that increase access and improve quality of basic education, health care and other social services, ease bottlenecks for participation of the poor in economic activities. Will the Government emulate Brazil’s achievement in directly addressing widening inequality and poverty through more effective social policies such as its hugely successful conditional cash transfer programmes?           Since 1991 the Foreign Direct Investment has been touted as the magic wand that will transform “under-developed” India into an advanced nation with “modern” infrastructure. Every Government that has followed has dutifully talked of taking steps to encourage and expand FDI. India is receiving a lot of FDI as well as FII investment. So far, India has received a record 16 billion US dollars of FDI investment in 2006-07. But I would say there is definite danger of the uncontrolled FDI and FII in our economy. Majority of FDI has come in the form of speculative investment in India’s stock market. MR. CHAIRMAN : Hon. Member, please conclude. SHRI B. MAHTAB (CUTTACK): FDI flows have simply enabled transnational brands to set up monopoly in highly profitable sector. Moreover, the benefits of FDI foreign exchange inflows are one time while the potential foreign obligations are perpetual and long term.           I had earlier mentioned in this House about the possibility of dirty money coming through FIIs. I would be obliged if the Finance Minister responds to these matters when he replies to the discussion.           I would also like to take a little time to ventilate the feelings of Orissa about the injustice that has been perpetuated by the Union Government. Mineral rich States like Orissa have not been able to reap full benefits of our endowments because of distortions in delayed implementation of mineral royalty policies. Royalty structures are such that mineral rich States, including Orissa are losing out substantially in resource generation potential for public investment. MR. CHAIRMAN: Kindly wind up, you have made your points. SHRI B. MAHTAB : We do not get commensurate royalty for exploitation of several minerals as the rates of royalty are not revised in time though the central statute on Mineral Development and Regulation provides for revision in royalty rates at an interval of three years. This was supported by 11th Finance Commission and the 12th Finance Commission has said that it should be revised on ad valorem basis. However, these are not being followed.           You have introduced recently on 1st August 2007 a hybrid system on coal and other major minerals. But this does not compensate the mineral rich States in a fair manner. Goa is also affected by it. MR. CHAIRMAN: Please conclude. SHRI B. MAHTAB : I would demand that the rate of royalty should be fixed at the rate of 20 per cent ad valorem. You are adjusting against royalty the taxes that are being levied by the States on mineral bearing lands. This is unfair and infringes on the constitutional powers of the State.           Another area of concern is levy of export duty on ore and chrome ores. The proceeds of this should be distributed among all States on the basis of tax regulation formula fixed by the Finance Commission. States like Orissa having iron ore and chrome ore deposits should be fully compensated out of the proceeds of such export duty of these minerals. MR. CHAIRMAN: Please conclude. I am calling the next Member. SHRI B. MAHTAB : While speaking on Sixth Pay Commission, I must say the recommendations have cast a huge financial burden on the State Governments requiring revision of pay and pensions of Government employees. I do not know if Government of India can come in help of most of the States.           I would also like to draw the attention of this House regarding direct tax transfer of central funds to implementing agencies. It should be stopped. All funds should be transferred through the State Budget. This would enhance accountability, it would capture aggregate flow of funds to a particular sector for appropriate policy intervention and design, and it would also avoid duplication of schemes. MR. CHAIRMAN: Now please conclude. Your Party time was five minutes; you have taken ten minutes. SHRI B. MAHTAB : Just give me two more minutes. MR. CHAIRMAN: I am giving you only one more minute. SHRI B. MAHTAB : I would like to raise a matter with utmost seriousness at my command. Thermal power is generated in Orissa and is exported to other States by various undertakings. As electricity duty is charged on consumption only, Orissa gets nothing other than environmental degradation.           If 1,000 MW of power is generated in Orissa and evacuated to another State, the importing State gets electricity duty to the extent of Rs. 100 crore. This situation needs to be altered. Either you allow the State to levy duty on generation or a percentage of power generated be given free to the State by the concerned public sector undertaking.           Before I conclude, Sir, I am reminded of one article which I read in the newspaper written by a former colleague of ours who was a Minister also, belonging to the majority Party. He has posed some questions and these questions are relevant and need to be answered. MR. CHAIRMAN : You pass it to your colleague, he will ask those questions. … (Interruptions) SHRI B. MAHTAB : I do not know whether he believes in that view or not. The first is – our relative position in the Human Development Index has deteriorated in conjunction with our rise in GDP growth. Why? Why are higher outlays impacting relatively little on all that makes life more bearable for the poor? What is required for exhilarated growth to translate into inclusive growth? These are the three questions which he has posed.           Coming back to the basic, I would say the total anticipated collection in current fiscal may not be more than Rs. 6.14 lakh crore which thereby leads to a position. … (Interruptions) MR. CHAIRMAN : No, not like this. Others also will ask same thing. I have given you enough time. Others are waiting. We must complete this discussion today. Please conclude. SHRI B. MAHTAB : I am concluding. The resource gap is Rs. 4.14 lakh crore or uncovered deficit of 6.8 per cent of GDP in 2009-2010. If we take into account the resource gap of the Centre and the State, the quantum comes to around Rs. 5.5 lakh crore or 11 per cent of GDP.           Sir, my last line is – this is highly perturbing; when would the Government return to the findings of FRBM Act?  SHRI ANANDRAO ADSUL (AMRAVATI): Thank you, Sir. Mr. Chairperson, I am in support of the Supplementary Demands for Grants brought by the hon. Finance Minister. I will take this opportunity to bring to the notice of the hon. Finance Minister one thing. We provide crores of rupees for various Departments by way of Budget and by way of these Supplementary Demands too. But we have never seen whether they are properly utilised or not. My experience, particularly in Melghat area, which is the tribal area of Amravati, Maharashtra is this. Crores of rupees are being spent. But no development has taken place of the tribal people. Wherever they were earlier, they are there even now.           Whenever we are implementing some schemes for the entire country we are allocating huge funds to the States. Take for example, sports complex to every tehsil is the scheme of this Union Government. I come from this backward region of Vidarbha. Even though the Government of India has provided the funds for the development of the backward region, unfortunately, all moneys are diverted to the districts of Ministers or Chief Minister. For example, two sports complexes meant for Vidarbha were transferred to Nanded which is the district of the Chief Minister of Maharashtra and nine of the schools meant for the tribals were also diverted to Nanded, the district of the Chief Minister. The implementation is being done this way. That is why, the backward region is where it was. That thing is also there. Then, the Central Government has allocated money for Adivasi Slum Schools. It is also being diverted to Nanded. I think, there is no mechanism to see whether the money, which we had provided, is spent for that very purpose or not. That is the main thing. That is why, corruption is taking place. There are so many NGOs, particularly in the tribal areas. So, the NGOs and officers are indulging in corruption over there. There is no mechanism seen over there which may prevent or stop this corruption.            I come from the cooperative banking industry field. From the year of enactment of the Income Tax Act, 1961, there was exemption given under Section 80P from income tax to the cooperative banking industry because it was the creation of a movement of the common people. It has been 48 years since this law was enacted. But for the last three years, since the Budget of 2006, this exemption has been withdrawn. Quite often we met the Finance Minister, but we could not succeed. This year also, I myself and my colleague, a former Member of Rajya Sabha, Shri Eknath Thakur, met the Finance Minister. He was convinced, but unfortunately Section 80P is not restored.           Let me tell you why the cooperative banking industry is to be exempted. It is because the formation and functioning of the cooperative banking industry is different from that of the public sector banks and other banks. It is purely a democratic movement of the common people.           Now-a-days, fortunately or unfortunately, whatever it is, the cooperative banking industry is facing competition from the cooperative banking industry itself, from the public sector banks and also the private sector banks. That is why, Development Fund is to be created for the new technologies to be accepted. Secondly, as I told earlier, the formation of a cooperative bank is different. That is why, members of this bank are also the borrowers from the bank. It is also the reason for which the members are the rightful persons to get dividend. If the divided and the Development Fund go, then how can the bank pay income tax? That is the problem with the cooperative banking industry. That is why, it is very much essential that Section 80P in the Income Tax Act is restored and exemption is given to the cooperative banking industry. That is my request. श्री विष्णु पद राय (अंडमान और निकोबार द्वीपसमूह) : सभापति महोदय, मैं खासकर अंडमान निकोबार द्वीप समूह के बारे में कहना चाहूँगा। THE MINISTER OF STATE IN THE MINISTRY OF PLANNING AND MINISTER OF STATE IN THE MINISTRY OF PARLIAMENTARY AFFAIRS (SHRI V. NARAYANASAMY): You may tell only about the Andaman and Nicobar Islands. श्री विष्णु पद राय : जैसे नारायणसामी जी कह रहे हैं, वैसे ही मैं फॉलो करूँगा। मैं केवल अंडमान की बात करूँगा, उसके बाहर नहीं जाऊंगा।           महोदय, अंडमान निकोबार द्वीप समूह सीधा केन्द्र सरकार द्वारा शासित होता है। अंडमान निकोबार द्वीप समूह प्रशासन, जो केन्द्र सरकार के अंडर काम करता है, उसने 163 करोड़ रुपये अतिरिक्त माँगे। मैं उसके लिए एक-दो पॉइंट में  आर्ग्यूमैंट दूँगा। अंडमान निकोबार में सूनामी के बाद करीब 10610 हैक्टेयर लैंड सबमर्ज हो चुकी है। उसके लिए ज़रूरत है परमानैन्ट डाइक्स एंड स्लूज़ गेट्स की। इस पर विभाग ने काम शुरू किया। उस काम को पूरा करने के लिए उन्होंने केवल 2करोड़ 21 लाख रुपये मांगे। राज्यपाल महोदय ने खुद सरकार से मांग की कि जो लैन्ड इरोज़न हो गया, स्लूज़ गेट बनाने के लिए 2008 में  60 करोड़ रुपये मांगे, जो आज तक नहीं मिले।  हमारे  द्वीपों में 90 परसैंट फोरेस्ट हैं और केवल दस परसैंट रेवेन्यू लैंड है। सूनामी में लैंड डूब चुकी है। उसकी कुल जमीन 10610 हैक्टेयर है। इसके लिए सुलूज गेट बनाना है। हमारा देश नदी-नालों का है, उसमें जमीन का कटाव हो रहा है, उसके लिए अलग रुपए दिए जाएं। नरेगा में सैलेरी देने के लिए एक करोड़ 79 लाख रुपए मांगे। पंचायत में सैलेरी देने के लिए 30 लाख रुपए मांगे। फोरेस्ट डिपार्टमेंट में 106 नेशनल पार्क और सेंचुरीस हैं। उनके मजदूरों को छठे पे-कमीशन की एरियर्स साढ़े पांच करोड़ दिए जाएं। मिनिमम वेज़ेज वेरिएवल डीए में, जैसे छ: महीने के बाद दिल्ली सरकार मिनिमम मजदूरी बढ़ती है, उसी तरह अंडेमान-निकोबार में भी बढ़ाएं।           सभापति महोदय, हमने एजुकेशन में 29 करोड़ 58 लाख रुपए मांगे हैं, क्योंकि हमारे यहां स्कूलों में बहुत जगहों पर छत नहीं है। वहां चटाई की दीवार बनी हुई है। वहां बिल्डिंग गिरने वाली है। कुछ स्कूलों में क्लास रूम, टॉयलट और कीचन बनाने के लिए दस करोड़ रुपए मांगे। भारत सरकार ने इंजीनियरिंग कॉलेज दिया, लेकिन उनके इनफ्रास्ट्रक्चर के लिए चार करोड़ 11 लाख की जरूरत है। अंडेमान-निकोबार का पुलिस का रोल बीएसएफ का भी है, नैवी, आर्मी और सब का है, लेकिन उनके पास क्वार्टर्स की बहुत कमी है। वहां बहुत से थाने कच्चे हैं, पुलिस वाले बैराक में रहते हैं। बहुत जगह फायर ब्रिगेड स्टेशन नहीं है, उसके लिए 20 करोड़ रुपए मांगे हैं। वहां म्युनिसिपल काउंसिल एक ही है, जो पोर्ट ब्लेयर में है। वहां 1812 मजदूर स्टाफ है, उनका छठे पे-कमीशन के बाद सालानां 12 करोड़ 80 लाख रुपए का एडीशनल बर्डन आया। वहां थ्री टायर पंचायत है, जैसे प्रधान, समिति, जिला परिषद है, उनके स्टाफ की सैलेरी भारत सरकार ग्रांट में देती है, लेकिन म्युनिसिपल एम्प्लाइस को नहीं देती है। जैसे 80 प्रतिशत ग्रांट्स भारत सरकार ने देने का वायदा किया था, लेकिन नहीं मिला। छठे पे-कमीशन में सैलेरी की बढ़ोत्तरी हुई, वैसे ही 12 करोड़ 80 लाख रुपए पोर्ट ब्लेयर म्युनिसिपल काउंसिल को भी दिए जाएं। चेरापूंजी और शिलाँग के बाद हायस्ट रेनफॉल हमारे द्वीप समूह में होती है, लेकिन वहां विकली दो-तीन बार पानी राशन में मिलता है। उसके लिए जो पानी की स्कीम चल रही है, उसके लिए 13 करोड़ रुपए दिए जाएं। स्वास्थ्य में जो मेडिसिन बिल चुकाने के लिए, सिटी स्केन मशीन खरीदने के लिए 21 करोड़ रुपए की जरूरत है, क्योंकि हमारे यहां सुपर स्पेशल होस्पिटल नहीं है।           सभापति महोदय, ओल्ड एज़ पेंशन, विडो और आंगनवाड़ी का ओनरेरियम बढ़ाने के लिए सोशल सैक्टर में चार करोड़ 15 लाख रुपए की जरूरत है। ...( व्यवधान) Sir, he is taking the time allotted to me to speak in this House on this issue.… (Interruptions) MR. CHAIRMAN: Hon. Member, please do not disturb him as he is mentioning very important points. … (Interruptions) MR. CHAIRMAN: These are serious issues being raised by the hon. Member. Please do not disturb him. … (Interruptions) श्री विष्णु पद राय : सभापति महोदय, सूनामी के बाद फिशरमैन का डिंगी ध्वंस्त हो गया। स्कीम का नाम राजीव गांधी रिहेबिलिटेशन पैकेज है। उन्हें रिहेबिलिटेशन के नाम पर डिंगी के साथ लोन मिला। जब फिशरमैन का सब कुछ खत्म हो गया तो निकोबार में डिंगी फ्री मिली। ...( व्यवधान) MR. CHAIRMAN: Hon. Member, please conclude your speech. You have asked too many things. … (Interruptions) SHRI BISHNU PADA RAY : Sir, please give me a couple of minutes more to speak. … (Interruptions) I have only taken three minutes to speak on this issue.           सभापति महोदय, अंडेमान और केंबलवे जिले में 686 मछुआरों को लोन में डिंगी दी। आज उनके इंटरस्ट के साथ तीन करोड़ 53 लाख माफ किए जाएं। तमिलनाडु, पांडीचेरी में सूनामी के विध्वंस के बाद उन्हें डिंगी दी गई, उस पर लोन नहीं था। उनका 3.53 करोड़ लोन और इंटरस्ट के साथ बकाया है, उसे माफ किया जाए।            सभापति महोदय, मैं आखिर में एक मांग कर के बैठना चाहूंगा। हमारा द्वीप जब बैठा था, तब सरकार ने किसानों को लोन दिया था। मेरे पास फिगर्स हैं। जिस आदमी ने वर्ष 1968 में 1.25 रुपए लोन लिया था, उस पर इंटरैस्ट लगाकर, उसे 454 रुपए कर दिया गया है। वर्ष 1968 में किसानों को कृषि विभाग ने ऐसा लोन दिया कि उस पर इंटरैस्ट लगकर वह 454 रुपए हो गया। मेरा आपके माध्यम से सरकार से अनुरोध है कि करीब 20-21 तरह के लोन को किसानों दिए गए हैं, उन्हें सरकार माफ करे। इसके साथ ही मैं एक मांग और करूंगा कि हमारे फॉरेस्ट कॉर्पोरेशन के रिवाइवल का पैकेज, केन्द्र सरकार के पास पैंडिंग पड़ा है। मेरी आपके माध्यम से सरकार से प्रार्थना है कि फॉरेस्ट कॉर्पोरेशन के रिवाइवल के लिए केन्द्र सरकार कम से कम 110 करोड़ रुपए का पैकेज तथा रबर बोट का रिवाइवल पैकेज दे। मिडिल एंड नॉर्थ अंडमान में नया डिस्ट्रिकत बनाए, उसके इफ्रास्ट्रक्चर के लिए 10 करोड़ रुपए प्रशासन ने मांगे हैं, वे दिए जाए। मेरी मांगों को सरकार पूरा करे, ऐसी मैं आशा करता हूं। DR. THOKCHOM MEINYA (INNER MANIPUR): Mr. Chairman, I rise to support the Supplementary Demands for Grants (General) for the year 2009-10. This being a constitutional obligation, the recommendation of all authorities concerned has been obtained. These Supplementary Demands for Grants, as we all know very well, include 61 grants, and two Appropriation Bills. As has been rightly mentioned by the former Finance Minister, the net cash outgo was restricted to a larger extent. I would analyze that again. Out of the net cash outgo of Rs. 25,725 crore, the non-Plan expenditure was Rs. 20,000 crore, and the Plan expenditure was restricted to Rs. 5,000 crore only. This is a very good sign.           Under the present UPA Government, which we call the UPA-II, under the leadership of the Finance Minister, under the guidance of our Chairperson, and the Prime Minister, we have gradually come out from the undesirable effects of global economic slowdown and recession. What is very encouraging is that the GDP growth is above six per cent, and it is expected that the growth rate will further increase. We cannot even remain complacent. We have to do it better in order to make our economy more strong and vibrant.           Sir, I strongly feel and believe that if the UPA rule continues, India will become what we want – a superpower within two to three decades. This is not my projection. This projection has been found in various media of other countries. The growth rate is steadily increasing; inflation is being checked effectively. India’s foreign exchange reserves are in a very comfortable position. Recently, we could purchase more gold/bullions, more than what we had sold during the then Janata regime.           Sir, India’s emergence as a global economic power is being acknowledged by all the superpowers of the world and each one of us should be very proud of it. Yes, there are certain areas of concern like increasing price of essential commodities, farmers’ plight, etc. The UPA Government is not running away from its responsibilities. Our loan waiver policy, National Rural Employment Guarantee Programme, etc., to mention a few, have gradually reduced the number of farmers’ suicides. We have full faith in the leadership of hon. Finance Minister. He is a seasoned economist and strategist, and he can handle any situation and eventualities. In the last few months, hon. Friends, you know, the prices of essential commodities have got reasonably stabilized. For this, the State Governments are also equally responsible. Both the Central and the State Governments should share the responsibilities. The blame-game will not help the common man. Something more needs to be done, we agree, to check the price rise of essential commodities and also the farmers’ suicides.           I would like to urge upon the hon. Finance Minister that there should not be any shortage of funds for UPA Flagship Programmes like National Rural Employment Guarantee Programme, National Rural Health Mission, etc. At the same time, there should be enough funds for the coming Commonwealth Games because this is the pride and prestige of the nation. We expect some financial leniency for the Commonwealth Games.           All the States in the country are to implement the Sixth Pay Commission recommendations. It will be extremely difficult for the poor States to implement it. Therefore, I would like to request the Finance Ministry to give financial assistance to the poor States to help them implement the Sixth Pay Commission’s recommendations. Without the Centre’s financial assistance and backing, it will be out of question for these States to implement it.           My State particularly Manipur is still unable to implement it because of the financial constraints. I strongly urge upon the Union Finance Ministry, if it can and if the rule permits, to come out to help my State by providing financial assistance to enable it to implement the Commission’s recommendations.           We have to go for an equitable development of all States and regions. We need to do away with regional imbalances. For this, a new approach, a new policy is necessary on the part of the Government, on the part of the Finance Ministry and on the part of the Planning Commission. If a State or a region is lagging behind vis-à-vis development, there will be discontentment and revolt. Therefore, I am afraid, we need a new thinking and a new approach to our economic planning and financial management. More attention must be given to the backward regions or States. More attention should be given to the poorer sections and disadvantaged sections of the society.           Finally, the UPA Government is fully committed to inclusive growth for all. The UPA Government is fully committed to the cause of common people. The UPA Government is committed to equitable development of all the States. Under the able leadership of our Madam Sonia Gandhi, Shri Manmohan Singh and Shri Pranab Mukherjee and others we are confident that we will be able to overcome all financial problems and become an economic power. Once again, I fully and wholeheartedly support the Supplementary Demands for Grants 2009-10. डॉ. रघुवंश प्रसाद सिंह (वैशाली):    सभापति महोदय, गांव में मैं देखता हूं कि महंगाई की मार है और किसानों को तकलीफ है, उससे इच्छा होती है कि सरकार पर बड़ा कड़ा हमला करूं, अटैक करूं, लेकिन जब देखता हूं कि वही हमारे पुराने साथी, जो पांच वर्षों तक एक साथ रहे हैं, जनता का, सरकार का काम किया है। डॉ. मनमोहन सिंह, प्रणव बाबू, नमोनारायण मीणा जी, नारायण स्वामी जी, हम सब लोगों ने एक साथ काम किया है और श्रीमती सोनिया गांधी जी इतना समर्थन और अपनापन रखती थीं तो मोह हो जाता है। 15वीं लोक सभा में मोह हुआ कि जनता की बात बोली जाये कि इतने हमारे पुराने साथी हैं, इन पर कड़ा अटैक किया जाये तो फिर हम कृष्ण तो हैं नहीं तो मोह छुड़ाने के लिए डॉ. लोहिया को हमने याद किया।           डॉ. लोहिया का जन्म शताब्दी समारोह, उनकी जयन्ती की 100वीं वर्षगांठ 2010 में होने जा रही है। हमने मांग की थी और 11 माननीय सदस्यों ने प्रधानमंत्री जी को लिखा था कि डॉ. लोहिया जन्म शताब्दी समारोह जानदार, शानदार ढंग से मनाया जाये, लेकिन अभी तक कोई जवाब नहीं मिला। 23 मार्च, 1910 को उनका जन्म हुआ था। उन्होंने ही कहा था कि जहां रहो, करोड़ों की बात करो, गरीबों की बात बोलो, लड़ो और उनके लिए काम करो। उसका स्मरण जब करता हूं तो मेरा मोह खत्म हो जाता है। मैं चाहता हूं कि जनता और गरीब आदमी का सवाल यहां पर उठाऊं।           महंगाई की मार से लोग तबाह हैं और सरकार की कार्रवाई से हम लोग संतुष्ट नहीं हैं। केन्द्र सरकार राज्य सरकार पर फेंक देती है कि राज्य सरकार ब्लैक मार्केटिंग और जमाखोरी, मुनाफाखोरी को नहीं रोक रही है। राज्य सरकार कहती है कि यह केन्द्र सरकार की जिम्मेदारी है तो राज्य सरकार और भारत सरकार के बीच में दोनों कह रहे हैं कि उनकी ढिलाइ र्है और वे कहते हैं इनकी ढिलाई है।  दोनों की ढिलाई में हो रही जनता की पिसाई, गरीब आदमी की पिसाई, इसलिए महंगाई को रोका जाए।  आज और आग क्यों नहीं लगती, देश में हल्ला क्यों नहीं उठता?  जैसे ही केंद्र से यह होता है कि मुनाफाखोरी पर कार्रवाई की जाए, तो मुनाफाखोरी के समर्थक दल सुटूक कर देह मार देता है, इसीलिए हल्ला नहीं उठता है।  लेकिन हल्ला उठाना पड़ेगा।  ज्यादा कुछ नहीं, पर महंगाई हमारा मूल सवाल है।  महंगाई रोकने की कार्रवाई अभी तक नहीं हुयी है।  यह कहते हैं कि इन्फ्लेशन घट रहा है, लेकिन महंगाई बढ़ रही है।  यह कौन सा अर्थशास्त्र है?  इसके लिए क्या इंतजाम है?  सरकार किस काम के लिए है, जब डिमांड- सप्लाई और मार्केटफोर्स इतनी ताकतवर हो जाएगी, तो सरकार की क्या जरूरत है?  उसे फ्री छोड़ दीजिए।  गरीबों का संरक्षण और महंगाई को रोकना, दाम बांधना, वाजिब है और जरूरत है।  डा. लोहिया कहा करते थे।  ज्यादा डिटेल पर न जाते हुए इस बहस को मैं विद्वानों पर छोड़ देता हूं।           फिस्कल डेफिसिट की बात की जाती है, मैं सुनते-सुनते परेशान हो गया हूं।  एक गरीब पर जब खर्च होने लगता है, तब फिस्कल डेफिसिट, फिस्कल डेफिसिट।  यशवंत बाबू ने पहले पांच वर्ष तक बजट पेश किया था।  ग्रामीण विकास पर पांचों वषों में मिलाकर कुल 72 हजार करोड़ रूपए खर्च हुए थे और केवल वर्ष 2008-09 में 72 हजार करोड़ रूपए ग्रामीण विकास पर खर्च किए हैं।  आप पांच वर्ष में इतना खर्च किए और यहां एक वर्ष में, तो फिस्कल डेफिसिट नहीं बढ़ेगा क्या?  मल्टीनेशनल के लिए या उद्योगपति के लिए ही बजट है, गांव के या गरीब के लिए नहीं है।   देश में एंटी रूरल, एंटी पुअर लॉबी है।  जब गांव में और गरीब पर खर्च करने की बात होती है, तो कहते हैं कि गड़बड़ी है, गड़बड़ी है, गड़बड़ी है।             रोजगार गारंटी कानून के बारे में मैं कहना चाहता हूं।  रोजगार गारंटी कानून की उपलब्धियां अभी तक क्या हैं?  यशवंत बाबू उन्हें नहीं जानते हैं।  झारखंड में पंचायत राज का चुनाव नहीं हुआ।  रोजगार गारंटी का हथियार और उसकी इंप्लीमेंटिंग एजेंसी है पंचायती राज है, तो वहां कैसे ठीक से लागू होते हुए आप देखेंगे?  18 लाख योजनाओं में एक साल में काम लगा है, लोगों का हाथ लगा है।  एक किसी योजना को देखा और कह दिया कि संपूर्ण लूट-खसोट है।  इतनी भारी गलती, सही बातों से इन्कार करना, आंख मूंदना है।  साढ़े चार करोड़ परिवारों को इससे रोजगार मिला है।  आप कहते हैं कि इसमें लूट है।  एकाउंट से पेमेंट है, बैंक के खाते से पेमेंट है। बैंक या पोस्ट आफिस में कितने खाते खुले हैं?  बैंक या पोस्ट आफिस में 8 करोड़ गरीब परिवारों के खाते खुले हैं।  पहले क्या कोई गरीब आदमी बैंक में झांक भी पाता था?  कोई उन्हें क्या वहां जाने देता था? अब गरीब आदमी का वहां खाता है।  वह उस खाते का मालिक है।  फाइनैंशियल एक्सप्रेस ने लिखा, “Largest financial inclusion of the world.”   दुनिया में इतना बड़ा क्रंतिकारी काम अभी तक नहीं हुआ, जितना यह हुआ।  गरीब को आप क्या देते थे? उसे काम भी नहीं देते थे। काम में सौ ही दिन की गारंटी हुयी, तो लोगों के प्राण छूट रहे हैं कि पैसा जा रहा है, नाली में जा रहा है, नाली में चला जाएगा।  शुरू में ही, लागू करने वक्त विभिन्न अर्थशास्त्री कह रहे थे कि यह बेकार चला जाएगा।  जॉन ड्रैजर अर्थशास्त्री ने झारखंड में सोशल आडिट किया है।  झारखंड में तो खासतौर से रोजगार गारंटी योजना गरीबों के लिए वरदान है।  लागू करने में जरूर ऐसा हो सकता है, जैसे कहते हैं कि सिंचाई करने में माली से कुछ पत्तियां झड़ गयी होंगी, तो आप कहते हैं कि उसको खत्म कर रहे हैं।  कहीं त्रुटियां या कमियां जरूर होंगी, हो सकती हैं।  6 लाख गांव, ढाई लाख पंचायत, 614 डिस्ट्रिक्ट्स, अब उसमें कैसे-कैसे काम करने वाले लोग होंगे?  उसमें गड़बड़ियां हो सकती हैं, लेकिन आपने यह भी कहा कि कैसे बनाया गया?  उसमें जीरो टालरेंस टुवर्ड्स करप्शन है।  उसमें कैसे चोरी हो सकती है? साठ प्रतिशत मजदूरी पर भुगतान करना है, चालीस पर्सेंट का मैटेरियल खरीदना है।  वह भुगतान कैसे अवैध हो सकता है, जब चेक से भुगतान होना है।  उसमें पांच बातों का महत्व दिया गया है।  अवेयरनेस जेनरेशन-जानकारी, पीपुल्स पार्टिसिपेशन-भागीदारी, एकाउंटेबिलिटी-जवाबदारी, स्ट्रिक्ट विजिलेंस मानिटिरिंग-खबरदारी और ट्रंसपरेंसी-पारदर्शिता, ये पांच चीजें हैं।  राज्य सरकार उसे लागू करे या न करे, यह उसकी गड़बड़ी है।  झारखंड की बात कहते हैं तो झारखंड में उनका राज था।  इन्होंने जी-फाइव चलाया।  वहां सब जेल में हैं।       उस राज में क्या हो सकता था। वहां का एक उदाहरण देकर रोजगार गारंटी जैसे क्रान्तिकारी कानून, कैब्रिज यूनीवर्सिटी, ऑक्सफोर्ड यूनीवर्सिटी और जितनी निष्पक्ष एजैंसियां हैं, सबने जांच की और पाया कि यह गरीबों के लिए वरदान है, देश के लिए कायाकल्प योजना है। लेकिन फंड जा रहा है तो प्राण छूट रहे हैं और कहा जा रहा है कि देश में एंटी-रूरल, एंटी-पुअर लॉबी है। ऐसी जगह कहां है जहां फ्रॉड नहीं होता। बैंकिंग की व्यवस्था काफी बड़ी है, लेकिन क्या उसमें फ्रॉड नहीं होता, एटीएम से जाली तरीके से पैसे नहीं निकाले जाते। गड़बड़ी और अपराध हो सकता है। यहां पार्लियामैंट है जिसकी बैठक छ:  महीने में जरूर होती है। यहां काफी कमेटियां हैं, सीएजी, जांच आदि है जिनमें पकड़ की गुंजाइश है, लेकिन क्या फिर भी गड़बड़ी नहीं होती है? इस गड़बड़ी को नहीं देखा जाता। राज्यों में विधान सभाएं हैं। उनमें भी सवाल-जवाब होते हैं, कार्यवाही होती है। गांवों में ग्राम सभा है। संविधान की धारा 243 में प्रावधान किया गया है कि ग्राम सभा होगी, कौन्सटीटय़ूशनल बॉडी है, लेकिन उसकी बैठक अनिवार्य होगी, इसका प्रावधान नहीं है। कहीं पर बैठक होती है, कहीं पर नहीं होती, कहीं राज्य सरकार देखती है, कहीं नहीं देखती है, कोई देखने वाला नहीं है। इसीलिए कहीं कागजी, जाली बैठक हो जाती है, तो वहां गड़बड़ी हो सकती है। इसमें एक ही कमी रह गई है कि जैसे लोक सभा और विधान सभा की बैठक के लिए संविधान में प्रावधान है, उसी तरह उसमें भी प्रावधान होना चाहिए। ग्राम सभा की बैठक अनिवार्य होनी चाहिए। सैल्फ डिसक्लोज़र, इतने पैसे आए, कौन सा काम होना है, कितने मजदूर हैं, क्या काम लिया गया, कितना पैसा मिला, उसमें सब कुछ बताना चाहिए। नहीं तो छ: लाख गांवों में ठीक से काम हो जाए, यह दिल्ली में बैठकर कोई कैसे देख सकता है।  इस योजना को या सरकार को कोई कैसे कसूरवार ठहरा सकता है। यह राज्य सरकार की जिम्मेदारी है। यदि यहां से कार्यवाही की जाएगी तो कहा जाएगा कि हस्तक्षेप हो रहा है, वह यूनियन लिस्ट है और यह स्टेट लिस्ट है। कोई आंध्र प्रदेश में जाकर देखे कि वहां कैसा काम हुआ है।           यशवंत बाबू ने रोजगार गारंटी के खिलाफ बोला है, इसमें हमें ज्यादा आश्चर्य नहीं है। देशभर में हल्ला हो गया कि रोजगार गारंटी के चलते कांग्रेस की तरक्की हो गई और सरकार पलट गई, यूपीए नम्बर टू हो गई। कोई विपक्षी नेता कैसे कहेगा कि यह ठीक है। उन्हें पता है कि ये इसी के चलते आ गए, इसीलिए इसी को खराब कहिए।...( व्यवधान) श्री यशवंत सिन्हा (हज़ारीबाग):आपने उन्हें सत्ता में बिठाया और उन्होंने आपको ही बाहर कर दिया।...( व्यवधान) डॉ. रघुवंश प्रसाद सिंह : बिहार में एनडीए की सरकार थी। उसने देखा कि यह केन्द्र की योजना है। इसलिए इसे बढ़िया से लागू नहीं किया, गड़बड़ी कर दी। वहां के लोगों को यह समझ में नहीं आया, देशभर के लोगों को समझ में आ गया, इसलिए बाहर हो गए।...( व्यवधान) ग्रामीण विकास की सारी योजनाओं को ग्राम सभा में करना चाहिए।           श्री गोरखनाथ पांडेय प्रधान मंत्री ग्राम सड़क योजना के बारे में बोल रहे थे। हमने शुरू नहीं किया है, यूपीए ने नहीं शुरू किया, उन्होंने शुरू किया। साल में ढाई हजार करोड़ रुपये का खर्च था। ढाई हजार करोड़ रुपये में एक ब्लॉक में दो किलोमीटर के हिसाब से 50-60 लाख करोड़ रुपये होता है। प्रधान मंत्री ग्राम सड़क योजना में चार वर्षों में 48 हजार करोड़ रुपये खर्च हुआ है। 12 हजार करोड़ रुपये केवल सड़क पर खर्च हुए हैं और आपने सम्पूर्ण बजट में 12 हजार करोड़ रुपये खर्च किए थे। पांच वर्षों में 72 हजार करोड़ रुपये खर्च किए थे, लेकिन यहां एक साल में 72 हजार करोड़ रुपये खर्च हुए हैं। पहले साल 16 हजार करोड़ रुपये, फिर 24 हजार करोड़ रुपये बढ़े, 53 प्रतिशत बढ़ोतरी हुई, तीसरे साल 31 हजार करोड़ रुपये, चौथे साल 42 हजार करोड़ रुपये और पांचवे साल साढ़े 49 हजार करोड़ रुपये थे। यह कहा गया कि पैकेज क्यों दिया। पैकेज दिया तो ग्रामीण विकास का बजट 72 हजार करोड़ रुपये हो गया। सौ प्रतिशत खर्च हुआ।  गांव और गरीब का विकास होगा। सब जगह ग्रामीण विकास की योजना ही झलकती है। 19.00 hrs.  बूढ़ा-बूढ़ी पेंशन, स्वर्ण जयंती ग्रामीण स्वरोजगार योजना, महिलाओं की भागीदारी, प्रधान मंत्री ग्राम सड़क योजना आदि इन सभी से गांवों का कायाकल्प हो रहा है। यदि कोई गांव में जाकर देखेगा, तो इंकार नहीं कर सकता। उसमें गड़बड़ी हो सकती है, क्योंकि इम्प्लीमैंटेशन मे चंद तरह के लोग हैं। लेकिन उसमें भी कानून है। वहां का सुपरिटैंडेंट इंजीनियर माननीय सासंद को खबर करेगा और सड़क का ज्वाइंट इंसपेक्शन होगा। अब एमपी साहब को उसकी खबर होती है या नहीं, यह पता नहीं? एमपी साहब को अगर कहीं जाना है, तो वह कह देते हैं कि हमें समय नहीं है। ...( व्यवधान) उसके बाद एग्जीक्यूटिव इंजीनियर एमएलए को खबर करेगा। जूनियर इंजीनियर मुखिया को खबर करेगा। इस तरह ज्वाइंट चुने हुए प्रतिनिधि और लागू करने वाले अधिकारी, इंजीनियर सब सड़क को देखेंगे, उसका निरीक्षण करेंगे। देश में 3 लाख 78 हजार किलोमीटर सड़क है। देश में कुल सड़क  33  हजार किलोमीटर है, 66 हजार किलोमीटर हाइवेज हैं और सवा लाख किलोमीटर मेजर डिस्ट्रिक्ट रोड्स हैं और स्टेट हाईवेज साढ़े तीन  लाख किलोमीटर है।  मेजर डिस्ट्रिक्ट रोड्स 26 लाख किलोमीटर है। ग्रामीण सड़क में  3 लाख 70 हजार किलोमीटर की मंजूरी हुई है। ...( व्यवधान) बहुत से माननीय सदस्यों ने सवाल उठाये हैं। इसलिए रोजगार गारंटी कानून को बिना जाने-समझे कितने आस्पेक्ट हुए हैं। पंचायती राज का सशक्तीकरण हुआ। महात्मा गांधी का  ग्राम स्वराज का सपना था। डाक्टर राम मनोहर लोहिया, चौखम्बा राज और बाबू जयप्रकाश नारायण का जो सपना था, उस सपने का साकार रोजगार गारंटी कानून है। इसलिए ऐसे सनसनी तौर पर और सरकास्टिक रिमार्क्स में कुछ कह देना गरीबों के साथ अन्याय होगा। मैं ही पूछता हूं कि आप एक भी ऐसी स्कीम बताइये जहां जाली कार्य हुआ है। हंड्रैड परसेंट एकाउंट पैमेंट है। कैश पैमेंट एवॉयडेड है। इसलिए कैसे कहा जाता है कि एक रुपये भेजते हैं तो 15 पैसे पहुंचते हैं।  सौ फीसदी एकाउंट में पहुंचता है। अब एकाउंट के बाद उस गरीब आदमी को नशा पिलाकर ठग ले, फरेब करके जमीन लिखवा ले, ऐसी शिकायत हो सकती है। लेकिन उसमें चोरी की गुजांइश नहीं है। Zero tolerance towards corruption. लेकिन इन स्कीम्स को लागू करने में जहां-तहां हेराफेरी हो सकती है। इसमें लोग पकड़े भी गये हैं और पकड़े जाते रहे हैं। उसमें डिस्ट्रिक्ट विजिलेंस मौनीटरिंग कमेटी है जिसे तीन महीने में बैठक करनी है। मैं सब लोगों से पूछना चाहता हूं कि क्या वह बैठक हुई है? जिला में क्या आपने कहीं देखा है? आपने क्यों नहीं उसकी इंसपेक्शन की? आपने क्यों नहीं कलैक्टर को निर्देश दिया कि यहां शिकायत है।  मोरम सड़क के बारे में बोल रहे थे। अब  पक्का करने का भी उसमें प्रावधान है। 40 परसेंट मैटीरियल का, उसमें भी दूसरी योजना से उस पर पक्का करा दो। बैंकवर्ड रीजन ग्रांट फंड  से आप सड़क पक्की करवा दीजिए। कच्चा काम रोजगार गारंटी योजना से हो जायेगा। डवटेल का प्रावधान है, अमालगमेशन का प्रावधान है। लेकिन सरजमीं पर भारत सरकार से, पार्लियामैंट से कैसे आप गांव में नियंत्रण कर सकते हैं। ये सभी चीजें हैं। हमें कभी फिर मौका मिलेगा, तो हम ग्रामीण विकास के बारे में अक्षरशः बतायेंगे, सदन को जानकारी देंगे जिससे गरीबों का कल्याण हो सके। गांव में जो गरीब बसते हैं, पार्लियामैंट का ऊंचा घर मैंने बनाया रे, लेकिन मुझे काम नहीं।           अब मंगनी लाल मंडल जी ने कहा था। हम समाजवादी लोग लड़ते थे और कहते थे कि काम को मौलिक अधिकार दो, नहीं तो बेरोजगारी भत्ता दो। वह जब चरितार्थ हो रहा है, तो कहा जा रहा है कि वह खराब है। यह गलत है। दुनिया की कोई भी योजना हो, क्या उसमें गड़बड़ी नहीं हो सकती? उसमें  गड़बड़ी हो सकती है। ...( व्यवधान) डाक्टर लोहिया ने कहा था कि करोड़ों की बात कहो, डाक्टर ऐसा आदमी दो, जो करोड़ों की बात बोले। एक आदमी पर 12 डाक्टर और करोड़ों लोगों के लिए डाक्टर नहीं। यह डा. लोहिया की बोली है। उस कारण मैं मोह से मुक्त हो रहा हूं कि सही और वाजिब बात इस लोक सभा में, जहां देश भर के चुने हुए प्रतिनिधि आते हैं, जनतंत्र की सर्वोच्च पंचायत है, इसमें करोड़ों गरीब लोगों की बात  गूंजे, उनकी परेशानी का सवाल उठे। यहां कारपोरेट कहने से क्या होगा। सीआईआई ऐसोचैम से गरीब की बात नहीं होगी। अब विपक्ष का काम यह नहीं है कि सब कुछ इसके खिलाफ ही बोल दे। हो गया न देश भर में हल्ला कि रोजगार गारंटी से कांग्रेस लौट आई, यह उनको फायदा कर गया, तो अब लोगों को लगता है कि इसका विरोध करना चाहिए। लेकिन अगर इसका विरोध होगा तो वह गरीब के खिलाफ होगा। अगर गरीब के खिलाफ हो जाएगा तो आप लोग जो जा ही रहे हैं रसातल में, और चले जाएंगे। इन्हीं शब्दों के साथ मैं अपनी बात समाप्त करता हूं। SHRI PRABODH PANDA (MIDNAPORE): I am aware of the time constraint but even then please allow me to make all the points.           Sir, the first batch of Supplementary Demands for grants seeks approval of gross additional expenditure of Rs.3942.62 crore.  We are discussing the Supplementary Demands for Grants.  This is not a discussion on the General Budget. So, we have a very limited scope for discussion on this subject.  To my mind it seems that this proposal has been brought forward in a casual manner. It is missing the priority.  We are discussing this matter in the backdrop of sky-rocketing price rise.  We are discussing this matter in a backdrop when the plight of the farmers is increasing like anything and the committing of suicides by them is unabated.   We are discussing this matter in a situation when around 50 lakh workers are in a perch of job loss.  What would be the priority?  I would say that this proposal is missing the priority.           It has talked about the aam aadmi, the inclusive growth.  We are talking about the ‘Bharat Nirman’.  We have heard almost the same slogans from the NDA Government.  They gave a slogan, ‘India shining’ and now we are talking about the ‘Bharat Nirman’. They said, ‘feel good’ and now we are talking about aam aadmi, inclusive growth.  It is all the same.  I can just recollect that during the NDA regime the former Finance Minister, hon. Yashwant Sinha Ji in the course of his Budget speech told that we are going to give independence to the farmers, ‘Kissano ki azadi’.  It has resulted in committing suicides of the farmers.  Now, it is unabated.            It was accepted from the Government of the day that it will decide the priority but it is missing. The main priority should be given to check the price rise. I do support Shri Yashwant Sinha when he narrated the figure of the international situation.  The price in the international situation is getting down but it is just reverse in our country.  The prices of almost all the essential commodities are getting higher and higher.  What is the attitude of this Government in this respect?  Nothing is reflected in this proposal.            We have listened many times about the demand and supply.  How the supply will be enhanced? Can it be enhanced only by imports, only by withdrawing the restrictions on imports?   Without enhancing the investment, how will our supply in the domestic market increase? You have the proposal here for more than Rs.30,000 crore.  But what about the planned estimate and planned sector which is even less than two-thirds?  What about plan estimates with regard to agriculture?  It is almost nil.  The hon. Finance Minister told while presenting the General Budget that it is something new and historic that we have made proposals for more than Rs.10 lakh crore.  But what about agriculture which is almost one per cent?  So agriculture is neglected. The same thing is reflected in this proposal and agriculture has almost been neglected. Several times we have raised the matter regarding National Commission on Farmers.  It is being dishonoured.  The Government is not in a position to comply with the proposals made by the National Commission on Farmers.             So far as price is concerned, several times we have suggested to just enhance the Public Distribution System, strengthen the Public Distribution System, and for going to the universal Public Distribution System.   How are you going to differentiate who is BPL and who is APL in a village? Do you recognise the Saxena Committee Report?  Do you recognise the report given by Dr. Arjun Sen Gupta Committee?  Do you recognise the Tendulkar Committee Report? What have they said?   How has the Planning Commission put the cap on the States that this should be the target and that this is the procedure for recognising the BPL families?  So, for addressing the problem of poverty, strengthen the Public Distribution System. This should be the priority.  I think the Government will respond to that. That kind of forward marketing should go insofar as agricultural products are concerned.  So far as food products are concerned, this kind of forward marketing should go.   Please try to minimise the prices of petrol and diesel.  You try to understand the situation.  So, my point is that priority should be given to the productive sector. This proposal is unproductive. It will not help in addressing the genuine problems in the prevailing situation of our country.            Not only that, what about collecting the sources? What is your attitude to unearth the black money?  What is your attitude to unearth huge money deposited in the foreign banks?   Just I recollect the speech delivered by the President in the Joint Sitting of Parliament and also the Budget Speech. It was said that the Government is willing to unearth huge money which has been deposited in the foreign banks. We are talking about Rs.10 lakh crore in our budget.  But it appeared in Delhi Press that more than Rs.75 lakh crore has already been deposited in the Swiss Bank.  So, what is your attitude?  So, it is loss of philosophy.  It is loss of priority.  It is unproductive and it has been put in a casual manner.  I am not against this proposal as we have nothing to do but to support it.  But I think the Minister will think and ponder over it.  We may talk here and we may pass this Bill here without any opposition.  This is correct. But the situation is something different outside Parliament. The toiling masses of our country are suffering today. What has been the condition of the agricultural workers? What has been the condition of the poor and marginal farmers? What is the condition of the share croppers of our country? What is the condition of the working class people in our country? What is the condition of the people belonging to the lower middle class of our country? I would only like to request the Government to address the problems being faced by these sections of people in our country. I would request the Government to make priority considerations for these people. This is not the responsibility of the Government alone but this is the responsibility of the Parliament.           With these words, I would like to conclude my speech. SHRI MOHAMMED E.T. BASHEER (PONNANI): Sir, I would like to thank you for giving me this opportunity to express my views on the Supplementary Demands for Grants (General).           Sir, I have been attentively listening to all the former speakers, especially the former Finance Minister. He was trying to blame this Government and was trying to establish a case in vain saying that the economic policy of the Government is not appropriate and that the Indian economy is in a bad shape. With due respect I would like to say that I beg to differ with him.           As far as this country is concerned, the entire world is looking to India to learn the preliminary lesson on how to tide over an economic crisis. This Government would have to be congratulated for this. Our country is becoming a centre of attraction for Foreign Direct Investment. There was a time when our country was considered to be a dumping ground for the developed nations. But things have totally changed now and today the situation is that our country is considered to be a favourite destination for Foreign Direct Investment.  As all of us are aware, the World Economic Summit was held in Delhi. Economists from all over the world came here and they considered our Prime Minister as their `guru’. His words were treated as most significant and were preliminary lessons for other countries about how to meet challenges at times of economic melt down. Similarly, this country can be proud of their financial stability. Of course, there may be some drawbacks. We cannot keep ourselves aloof from the new world order and so we will have some problems with the economic melt down. At the same time we can very well understand that we are capable of overcoming that situation. This Government is working with a mission. We are fortunate to have a Finance Minister who has declared to the world that India is nowhere near any recession. Our economy has that much of stability.           At the time when economic reforms were sought to be introduced, there were some forces which acted as a stumbling block to that process of economic reforms, but fortunately today such forces have been sidelined from the national political scenario. The position is convenient today. As far as the developmental activities are concerned, we cannot have the same set of reasons, different countries have different situations, when we analyse our situation we must understand that reforms would have to be human centric and not profit centric. Gandhiji had a wish that whenever certain things are done or implemented one has to remember the face of the most down-trodden poor Indian before him. Therefore, whenever we are making a plan we must approach the plan with such an outlook.           One of the hon. Members who preceded was speaking about NREGA. One very senior Member mentioned about how nicely it has been implemented.   There is surely an undisputed thing.  Like NREGA, there has been no other programme in our country after Independence. This is the best poverty alleviation programme which this country has ever seen. One thing is sure.  As correctly mentioned by the hon. Member, there may be some drawbacks. There may be some teething problems.  It is quite natural.  As far as giving employment is concerned, it is all right.  Payment part is also all right.  But as far as the second part is concerned, we must have a critical analysis.  Money is disbursed and employment also is given by that way.  What about a mechanism to make the scheme completely corruption free?            Similarly, quality and durability of the assets generated through NREGA may be examined properly.  As far as items of work included under NREGA are concerned, it is now unskilled.  There also we have to make progress.  So, semiskilled work and skilled work should also be brought under the purview of this scheme.  We have to examine whether all these schemes are really attaining the goal which we have cherished.            About price rise and other things, other speakers have mentioned.  I do not want to enter into the details of it.  Some schemes are still in deadlock because of lack of funds. As far as Prime Minister’s Relief Fund for cancer and heart patients is concerned, thousands of applications are pending.  Adequate allocation is not there for that fund.  We are all forwarding letters to the Prime Minister. But unfortunately, funds have not been sanctioned.  I humbly request the Government to give more allocation for this fund and make it really good for the people.           About social justice sector, there is a demand for this Ministry.  There are some drawbacks in social justice area.  We are having a lot of schemes like the Prime Minister’s 15 point programme but we have been saying that there has not been adequate allocation for that. Applications for scholarships are pending since long.  I request the Government to make maximum possible allotment to this area.           Yesterday, the Prime Minister has declared that Justice Mishra Commission Report is going to be tabled in the House.  I express my heartfelt congratulations to the Government for the Prime Minister’s declaration.  Sir, regarding proper manpower, hon. Members were talking about China.  Of course, there are many things to be learnt from different countries.  This country’s asset is skilled trained manpower.  How to use the manpower properly?  That itself is a skill and India should give top priority to this point because that is the only area where this country can develop.  If we can make proper manpower supply, this country can have better development than any other country in the world.           My next point is about the transmission loss of the schemes.  The Government of India sanctions the schemes but when they are reaching the common man, there is a lot of transmission loss especially in the implementation side at the State Government and the panchayat levels.  This transmission loss should be arrested.  Any scheme we are implementing should reach the common man without any kind of loss.           Regarding the role of NGOs, they are playing a vital role in development activities.  But I suggest that proper evaluation and monitoring should be done on the performance of the scheme entrusted to the NGOs.            With these words, I conclude.                                                     *SHRI PRASANTA KUMAR MAJUMDAR (BALURGHAT) : Hon. Chairman Sir, today we are discussing the Supplementary Demands for Grants and there is nothing much to say on this. But it is true that in the entire country, in the villages as well as in the cities, prices of essential commodities are shooting through the roof.  Prices of foodgrains have gone up by 25% and that of sugar by 45%; Prices of potato and pulses have also risen by 104% and 35%.  The way in which prices are soaring makes it extremely difficult for the common people to survive.  Arjun Sengupta Report shows that 77% of the population of the country manages only one meal a day.  Then you can well imagine their plight.  Where do we actually stand?  There are numerous mistakes in the BPL lists and even today we have not been able to prepare a correct comprehensive list.  The Public Distribution System in also very weak.  In the afternoon,  we have just completed the discussion on sugar and sugarcane.  I had told you at that time also that 20% levy sugar is siphoned off from the mill itself and PDS does not operate in this case.  The rest 80% in non-levy  sugar whose price has already risen to Rs.40 or Rs.42.  Thus the prices of such commodities are sky rocketing. * English translation of the speech originally delivered in Bengali           The Government says that it is for the ‘aam aadmi’, the common people.  But in practice, something different is visible.  Last time, we had supported the UPA Government unconditionally with the hope that there would be more economic development.  I will not say that nothing has happened.  PMGSY and Rozgar Guarantee Scheme have helped the rural population a lot.  There has been advancement.  We have to accept the fact that the Government did a good job last time and we were a party to it.           There is worldwide economic recession which is being felt in India also.  Fifteen to twenty lakh people have lost their jobs in the industrial sector. How will they survive?  What will they eat? They are suffering like anything. The Government has to come forward with stimulus packages to save them.           On one hand there is agriculture and on the other there is industry and both should work together for economic advancement of the nation.  Secondly, you all know that through PMGSY, road connectivity has been spread in all parts of the country and infrastructure has also been developed.  But due to lack of proper monitoring, the condition of road deteriorate. Raghuvansh Prasad Singh has mentioned this.  We also find that in the tribal areas, roads are not being constructed.  The tribal people live in small hamlets and not more than 200 or 250 people live together.  But the first criteria of PMGSY is the number of people; the place where more people reside will get connectivity first.  Therefore the tribal communities are deprived.  They are few in number, living under unhygenic condition in forests or backward villages.  They did not get metalled roads or other basic infrastructure.  Development is a far-cry in these areas. So these hapless people are very disappointed, very unhappy.  No Government ever think of these tribal people and SC / ST communities.           From this august House, through you sir, I would request the Government to take care of the tribal population who are away from the mainstream.  They are in large numbers.  Their deprivation is being exploited by the Maoist insurgents who are playing havoc in the areas like in Jharkhand, Madhya Pradesh.  We should keep on eye on this.  We will definitely pass this Demands for Grants but should not forget this aspect.           Thirdly, the support prices of paddy, wheat, jute, sugarcane are not available in practice.  There is JCI, FCI and even the Government can procure these crops. But nothing happens.  In West Bengal only Rs.700 was given to each farmer whereas the amount fixed was Rs.900. Therefore, I am requesting the Government to look into it.           Another issue is about the tea gardens of North Bengal.  Most of the tea estate workers have lost their jobs.  They are suffering a lot due to closure of many gardens.  The Government should take care of them too.           With these words, I thank you and conclude my speech. श्री तूफ़ानी सरोज (मछलीशहर):सभापति महोदय, आपने मुझे सप्लीमैन्टरी बजट पर बोलने का मौका दिया, इसके लिए मैं आपको धन्यवाद देता हूं। माननीय वित्त मंत्री जी ने जब सदन में बजट पेश किया था तब इन्होंने ग्रामीण विकास को सर्वोच्च प्राथमिकता दी थी। इन्होंने ग्रामीण विकास के तहत आने वाली योजनाओं में बजटीय प्रावधान में खुलकर इजाफा किया। नरेगा में 144 फीसदी की बढ़ौतरी की गई। नरेगा के संबंध में तमाम हमारे सांसद साथियों ने चिंता जाहिर की है कि इसका दुरुपयोग हो रहा है। श्री रघुवंश बाबू ने कहा कि मॉनिटरिंग कमेटी बनाई है। मॉनिटरिंग कमेटी के कितने सुझाव होते हैं, उसके बारे में लोग कितना सुनते हैं, उसके बारे में सब लोग जानते हैं। मैं उत्तर प्रदेश से चुनकर आता हूं। अभी पिछले दिनों अखबारों में आया था कि नरेगा का पैसा दूसरी मदों में ट्रंसफर कर दिया गया। जब इसकी बात यहां उठती है, यहां इसका जिक्र किया जाता है कि इसकी जांच-पड़ताल की जाए कि आप जो पैसा दे रहे हैं, उसका सदुपयोग हो रहा है या नहीं हो रहा है तो सरकार कहती है कि स्टेट गवर्नमैन्ट की भी जिम्मेदारी है, इसलिए स्टेट गवर्नमैन्ट जाने। इससे आपकी विकास करने की जो मंशा है, उसका पता चलता है। आप जिस काम के लिए आप पैसा देते हैं, वह पैसा सही जगह पर उपयोग हो रहा है कि नहीं हो रहा है।           आपने बजट में बताया कि देश में 44 हजार ऐसे गांव हैं, जहां 50 परसैन्ट से ज्यादा अनुसूचित जाति के लोग रहते हैं। इन 44 हजार में से एक हजार गांव में आपने पायलट प्रोजैक्ट योजना बनाई थी। वह पायलट प्रोजैक्ट योजना जो सौ करोड़ रुपये से बनाई गई थी, उसका कहीं अता-पता नहीं चल रहा है। लगता है कि पायलट प्रोजैक्ट योजना को लेकर पायलट आकाश में उड़ गया है और वहीं पर मंडरा रहा है। उसका कुछ पता नहीं चल रहा है, वह लैंड नहीं कर रहा है।           बीपीएल कार्ड्स के बारे में लोगों ने यहां चिंता व्यक्त की। पूरे देश में सूखा पड़ा...( व्यवधान) सूखा पड़ा तो बीपीएल कार्ड्स बनाने में तमाम अनियमितताएं बरती गईं। लेकिन मैं बताना चाहता हूं कि सूखा अमीरों के खेतों में भी रहा, मध्यम वर्ग के खेतों में भी रहा। मैं चाहूंगा कि बीपीएल कार्ड्स की नियमावली में संशोधन करके मध्यम वर्ग को भी खाद्यान्न देने की व्यवस्था की जाए।           सभापति महोदय, जीडीपी के बारे में बड़ी चर्चा हुई। जीडीपी को देश के 80 परसैन्ट लोग नहीं जानते हैं कि यह क्या है। गांव में जीडीपी क्या है, यह क्या होता है। पेपर्स में हम लोग पढ़ लेते हैं कि कभी जीडीपी आठ परसैन्ट हो गई और कभी चार परसैन्ट हो गई। इससे गांवों के गरीब, मजदूर और किसानों का क्या लेना-देना है। भले ही आपके जीडीपी की ग्रोथ नौ परसैन्ट हो जाए। लेकिन गांवों मे, हमारे पूर्वांचल में सूखा पड़ा हुआ है। गांव के किसान, गरीब और मजदूर भूखे पेट सो रहे हैं, पेट पर हाथ रखकर सो रहे हैं। ताकि जीडीपी ग्रोथ हो गई। जीडीपी ग्रोथ हो जाने से पेट में अन्न नहीं जा रहा है। ग्रोथ तब होगी जब गरीब के पेट में आलू जायेगा, गोभी जायेगी, दाल जायेगी, सब्जी जायेगी, हर पदार्थ जायेगा, तब वह जीडीपी का मतलब समझेगा। आप बार बार जीडीपी का बखान करते हैं। हमने बड़ी उन्नति कर ली है, बहुत बहस करते हैं कि हमने प्रगति कर ली है। MR. CHAIRMAN : Kindly wind up now. श्री तूफ़ानी सरोज : मुझे याद आता है कि जब हम लोग पढ़ते थे तो यही नारा लगाते थे - कांग्रेस आयी है, महंगाई लाई है। आज गांव में भी यही चर्चा हो रही है कि जब जब कांग्रेस आती है, तब तब महंगाई बढ़ती है। अब अगर यही हालात रहेगें तो निश्चित तौर पर जीडीपी से फिर आप इधर नहीं बैठे रहेंगे, उधर आपको आना पड़ेगा। यह जीडीपी ग्रोथ...( व्यवधान) SHRI J.M. AARON RASHID (THENI):  The Congress Government announced the loan waiver to agriculturists.… (Interruptions) A sum of Rs.60,000 crore agricultural loan waiver has been announced by the Congress Government.… (Interruptions) MR. CHAIRMAN:  Nothing should go on record except the speech of the hon. Member Shri Tufani Saroj. Hon. Member, you please continue. (Interruptions) … * श्री तूफ़ानी सरोज :  वैट के बारे में भी प्रदेश सरकार को लिखा है कि  मूल्य वृद्धि कर को लागू किया जाये । उनके कर राजस्व में दिसम्बर, 2008 को खत्म हुये  नौ महीने में पिछले साल  की तुलना में 19 प्रतिशत का इजाफा हुआ है।  आज हमने पेपर में पढ़ा कि जो चीनी आयात की जायेगी, उसे वैट फ्री किया जायेगा, आप क्यो वैट फ्री कर रहे हैं? एन.डी.ए. के लोगों ने भी वैट लागू किया था, इनका भी समर्थन था। लेकिन हमारे नेता  श्री मुलायम सिंह यादव ने कहा कि हम  वैट लागू करके गरीब जनता पर भार नहीं लादेंगे। आज वैट चीनी पर से हटा रहे हैं। मैं तो मांग करता हूं कि जितने भी खाद्य पदार्थ हैं,  सब पर वैट हटाया जाये। महंगाई एक अहम समस्या है। महंगाई के कारण सब परेशान हैं।...( व्यवधान) MR. CHAIRMAN:  I am putting off the mike. Please make the last point. श्री तूफ़ानी सरोज :सभापति महोदय, मैं अंत में यह कहना चाहता हूं कि एक बहुत इम्पार्टेंट विषय है जिसके कारण हमारे 300 सांसद चुनाव हार गये हैं। जब भी हम सैंट्रल हाल में बैठते हैं तो लोग कहते हैं कि सांसद निधि की वजह से हमारी हार हुई। कल एमपीलैड्स कमेटी की बैठक थी जिसमें  पढ़ने को मिला कि 12 मार्च, 2009 को  सरकार ने रिपोर्ट दी...( व्यवधान) MR. CHAIRMAN: Please do not disturb him. He is making a very important point. श्री तूफ़ानी सरोज :उसमें लिखा है कि 12 मार्च को सरकार ने जवाब दिया है कि हम असमर्थ हैं। हमारे पास धन की व्यवस्था नहीं है। सरकार ने अपनी असमर्थता जाहिर की है। सर्वोच्च न्यायालय की बात भी कही है। सर्वोच्च न्यायालय में कोई. एन.जी.ओ. गया है लेकिन सर्वोच्च न्यायालय ने यह कहीं नहीं कहा है कि सासंद निधि न बढ़ाई जाये।  जब हम लोग यहां 1998-99 में थे, तब भी वही रेट था और आज 2009 में भी वही रेट है। उस समय भी 2 करोड़ रुपया मिलता था  और आज भी वही मिलता है।  हर चीज में ग्रोथ हो रहा है। उस समय 700 रुपये में एक हजार ईंट आती थी लेकिन आज 3500 रुपये में आती है । इसी प्रकार सीमेंट की बोरी 50 रुपये थी जो आज 250 रुपये में आती है। तब छड़ 1200 रुपये था, आज 3000 रुपये है। एक लोक सभा क्षेत्र में 5-7 विधानसभायें आती हैं। ...( व्यवधान) CHAUDHARY LAL SINGH (UDHAMPUR): I have got 17. श्री तूफ़ानी सरोज : सासंद को एक विधानसभा  क्षेत्र में दो किलोमीटर सड़क बनवाने के लिये 40 लाख रुपये एक साल में मिलते हैं और जनता यह जानती है कि सांसद को विकास कार्य के लिये पैसा मिलता है। वह हमारा हिसाब-किताब और लेखा-जोखा नहीं जानती है कि  हमें कितना पैसा मिल रहा है या कितना नहीं मिल रहा है। उसका मतलब है कि काम होना चाहिये। ...( व्यवधान) MR. CHAIRMAN:  You have taken enough time. I have given you enough time. Please conclude. श्री तूफ़ानी सरोज :सुबह-सुबह हमारे मकान पर मांगने के लिये 200 लोग आ जाते हैं। अच्छा होता है जब लोगों की भीड़ अपनी मांग को लेकर जुटती है। उसमें कुछ शुगर फ्री लोग रहते हैं, कम चाय खर्च होती है। अगर सब लोग आकर चाय पीते तो  जो चीनी का भाव इस समय चल रहा है,  हम जनप्रतिनिधियो के सामने बहुत बड़ी समस्या खड़ी हो जाती। आपने मिड-डे-मील में पैसा बढ़ा दिया।...( व्यवधान) MR. CHAIRMAN: I will say “Nothing will go on record.” I have given you more time. Please conclude. श्री तूफ़ानी सरोज :   मिड-डे-मील में जो योजना चला रहे हैं, कभी क़ड़ाई में सांप मिल रहा है, कभी छिपकली मिल रही है, कभी मीनू के हिसाब से भोजन नहीं पक रहा है। इसमें तमाम तरह की बातें हैं...( व्यवधान) मैं  सरकार से मांग करता हूं कि वर्तमान समय में महंगाई की समस्या है, उसे देखते हुये सांसद निधि  दस करोड़ की जाये जिससे जो समस्यायें हैं, उनका निराकरण किया जा सके। SHRI P. KARUNAKARAN (KASARGOD): Mr. Chairman, while we discuss the Supplementary Demands for Grants, I think, the Government has to reply as to why they are not able to control price rise. The Government claims that there is better growth rate. The Government also claims that there is a negative inflationary trend. It means that there should not be any price rise. It is true that these two economic parameters are better as far as a growing economy is concerned. Even then, the Government is not able to translate this message to the people. Why? The Government has to go for a thorough introspection with regard to its procurement policy, storage policy and also its policy on the Public Distribution System.           Sir, while I participate in this discussion, I would like to place before this House some of the important issues facing the nation as well as the States. For the last few years there have been droughts and floods in various parts of the country. This resulted in a decline in the production of foodgrains and also a weakened economy. When we consider the additional expenditure in the form of Supplementary Demands for Grants, we should consider whether justice has been done by the Central Government in the last few years.           During 2007, 2008 and 2009, there was a big loss suffered by farmers of Kerala who grow general agricultural produce and those who produce cash crops. A Central Team has visited the State and estimated that the loss incurred by the State was about Rs. 5,000 to Rs. 6,000 crore. But only a nominal amount was sanctioned either under CRF or under NCCF. So, the Central Government should give a fair treatment at least to compensate the huge loss suffered by farmers.           Sir, infrastructure facilities are the pre-requisites for any type of development. Electricity is essential for all projects. The Government of Kerala has already submitted a detailed plan estimates for undertaking Rajiv Gandhi Gramin Vidyutikaran Yojana for 14 districts of Kerala. But I am sorry to say that sanction has not been given to any of the projects.           Pradhan Mantri Gram Sadak Yojana is a noble scheme initiated by the NDA Government and continued by this Government. It is a good scheme. It provides better rural connectivity to the people in the villages. While implementing this scheme, Kerala has some practical problems which the Government of Kerala has already placed before the Central Government. The norm prescribed under this scheme should be made flexible taking into consideration the special nature of each State. The norms like 8-metre width, 1:12 gradial and also the package scheme make it difficult for implementation in Kerala. So, the Central Government should consider giving some flexibility for implementing the scheme so that more works can be undertaken by the Government of Kerala.           Housing facility has become the most important requirement now-a-days for the poor people. The Government of Kerala has decided to sanction 4 lakh houses for the people belonging to the Scheduled Castes, Scheduled Tribes and other eligible persons who have no shelter or land. This scheme is known as EMS Housing Scheme. The cooperative sector has come forward to finance this sector. But at the same time, the State Government has to bear a huge financial burden. The Government of Kerala has already made a request to the Government of India for financial assistance in this regard. I would request that this may be considered by the Central Government.           Sir, the ASEAN Agreement will adversely affect the farmers both in agriculture and cash crops sector. Though some items are included in the Negative List, it would not give a permanent solution to all the farmers. So the Government should take steps to impose a better tariff structure while importing items.           Functioning of the Public Distribution System in Kerala is known to all. It is a model to other States of the country. But at the same time, the foodgrains that we are getting is really very less. There was a reduction of 82 per cent in respect of APL rice supplied to Kerala. With this it is not possible to give ration to all the sections of the people, especially to those people belonging to the APL category. So, in the time of price rise, we are starting new Fair Price Shops, needy stores, in almost all the areas.  To some extent we can get rice at Rs.14 in the Maveli store, though in the open market is Rs.28 to Rs.30 a kilo and in the open market in Kerala it is Rs.22 because of the intervention of the State Government.  So, I would request the Government to provide the actual allocation that the Government has given.           The Central Government has decided to start 6000 model schools in the country, but Kerala is not included in the list, maybe because the State has achieved better educational position.  But at the same time there are places and regions which are backward, so some of the wards have to be included.           Since the State has shown progress in the social sector, really it has become a punishment to Kerala with regard to education and health as we are not getting more funds.  At the same time we have to face the higher education issues and issues of new diseases, so the Central Government should make new parameters and provide more funds.           Kerala has a coastal line of about 600 kilometres in which lakhs of fishermen are dependent on fishing as their main livelihood. The mechanised boats and country boats use kerosene, but the Government has not made any special quota of kerosene for the poor fishermen.  The Government is really diverting this PD System itself.           Sir, the Finance Ministry has issued a circular to all the banks, nationalised and commercial banks, to give the list of depositors who have deposited up to Rs.10 lakh.  But I am sorry to say that as far as cooperative banks are concerned, they have to give the list of depositors who have deposited up to Rs.1 lakh only. As far as Kerala is concerned, cooperative sector is very strong.  As we see the nationalised and commercial banks, the cooperative banks play a very important role.  Of course, it is true that the Finance Ministry can ask for the list, but at the same time there should be uniformity in the nationalised, commercial and cooperative banks as far as submission of this list is concerned.           With these words, I conclude my speech.  डॉ. संजय जायसवाल (पश्चिम चम्पारण): सभापति महोदय, मैं आपका बेहद आभारी हूँ कि आपने मुझे सप्लीमैंट्री डिमांड्ज़ पर वक्तव्य रखने का अवसर दिया।           सभापति जी, मैं पहली बार लोक सभा का सदस्य बना हूँ। मैं बहुत देर से सुन रहा था। इतनी देर में तीन सांसदों को छोड़कर किसी ने भी सप्लीमैंट्री डिमांड्ज़ में क्या ऐक्सैस है और क्यों चाहिए, उस पर चर्चा नहीं की। अपने साथियों की परंपरा का पालन करते हुए मैं अपने आपको माननीय तूफानी सरोज जी से असोसियेट करता हूँ कि या तो हमारा सांसद फंड रीज़नेबल किया जाए जिससे हम सब अपने क्षेत्र में कार्य कर सकें, अथवा यह हटा ही दिया जाए क्योंकि एक अनार और सौ बीमार वाली बात है। हर पंचायत से हमारे पास डिमांड आती है और हम किसी की डिमांड पूरी नहीं कर पाते हैं। ...( व्यवधान) चौधरी लाल सिंह : हटाने की बात मत बोलो, नहीं तो ये तो तैयार बैठे हैं। ...( व्यवधान) डॉ. संजय जायसवाल :हर ब्लाक में हम रीज़नेबल काम कर सकें, इसके लिए सांसद फंड की व्यवस्था दें। ...( व्यवधान)           सप्लीमैंट्री डिमांड्ज़ फॉर ग्रांट्स पर मैं उम्मीद कर रहा था कि कांग्रेस से माननीय अधीर रंजन चौधरी जी कुछ सप्लीमैंट्री डिमांड्ज़ के बारे में बोलेंगे। उन्होंने मूल्यवृद्धि बोला, नरेगा बोला, पीएमजीएसवाई बोला, वर्ल्ड का रिसैशन बोला, सब कुछ बोला, लेकिन सत्ता पक्ष ने भी यह नहीं बोला कि इन्हें एक्सैस फंड क्यों चाहिए, किस चीज़ के लिए यूटिलाइज़ करेंगे। इसके लिए माननीय अधीर रंजन चौधरी जी ने कोई भी वक्तव्य नहीं दिया। पर मैं अपने आपको इसी पर सीमित रखूँगा। कांग्रेस के सांसद जब भी बजट पर चर्चा करते हैं, तो माननीय पूर्व प्रधान मंत्री स्वर्गीय राजीव गांधी का नाम जरूर लेते हैं कि वे कहते थे कि हम केन्द्र से एक रुपया भेजते हैं तो थोड़ा सा पैसा ही क्षेत्र में जा पाता है। लेकिन ऐसा क्यों होता है? बजट के पैसे का दुरुपयोग कैसे हो रहा है, यह मैं संसद के सामने रखना चाहता हूँ। सबसे दुखद बात यह है कि जो विभाग भारत सरकार के पैसे का दुरुपयोग कर रहे हैं, उन्होंने ही सप्लीमैंट्री डिमांड्ज़ फॉर ग्रांट्स दिया है।           सबसे पहले मैं स्पोर्ट्स मिनिस्ट्री के बारे में कहना चाहूँगा। माननीय एम.एस.िगल साहब राजनीति में आने से पहले जो थे, कोई भी अगर चुनाव में 25 लाख रुपये से एक रुपया भी ज्यादा खर्च करता था तो वे उसे संसद में आने के अधिकार से वंचित करने की बात करते थे। मंत्री बनने के बाद आज उनकी स्थिति यह हो गई है कि 797 करोड़ का स्पोर्ट्स बजट, जो कॉमन वेल्थ गेम्स आर्गनाइजिंग कमेटी ने अपने लिए मांगा था, उसे इन्होंने बढ़ा कर 1620 करोड़ दे दिया है। उसके बाद भी ये कह रहे हैं कि हमें 232 करोड़ और दिया जाए। 797 करोड़ को 1620 करोड़ करने वाले आर्गनाइजिंग कमेटी को पारितोषिक के रूप में 232 करोड़ दिया जा रहा है। मैं सभापति महोदय का धन्यवाद करना चाहूंगा कि इन्होंने इस बार कम से कम 50 करोड़ रुपए खिलाड़ी भी मेडल जीतें, इसके लिए रखा है, यह बहुत बड़ी उपलब्धि है। इसमें माननीय सभापति जी का भी योगदान है, यह मैं अच्छी तरह से जानता हूं।             सभापति महोदय, शहरी विकास मंत्रालय को भी कॉमन वेल्थ गेम्स के लिए 1675 करोड़ चाहिए। दिल्ली सरकार अरबों रुपए कॉमन वेल्थ गेम्स के लिए मांग चुकी है। कभी सौन्दर्यकरण, विद्युतीकरण, सीवर लाईन के निर्माण, वाटर ट्रीटमेंट और कभी दिल्ली की सुरक्षा के नाम पर पैसा मांगा जा रहा है। इस तरह से अरबों रुपया मांगा जा रहा है। मुझे कभी-कभी लगता है कि कॉमन वेल्थ गेम्स हमारे देश की राजधानी में नहीं, बल्कि बाढ़ से प्रभावित किसी गांव में हो रहा है, जहां इफ्रास्ट्रक्चर नाम की कोई चीज नहीं थी। वहां पहली बार इफ्रास्ट्रक्चर बनने जा रहा है। दिल्ली सरकार की मांगें इसी तरह की हैं। कॉमन वेल्थ गेम्स माननीय अटल जी का सपना था। हम चाहते हैं कि कॉमन वेल्थ गेम्स बड़े ही शानदार ढंग से हों, परन्तु इस कॉमन वेल्थ गेम्स में कितने लोगों की वेल्थ बढ़ रही है, इसकी भी जांच जरूर होनी चाहिए।           सभापति महोदय, अब मैं उपभोक्ता खाद्य एवं सार्वजनिक वितरण मंत्रालय पर बात करूंगा। इन्हें साढ़े तीन सौ करोड़ की अतिरिक्त सहायता चाहिए - चीनी विकास निधि और चीनी मिलों के विकास के लिए। आप किसानों को 16 रुपए किलो के हिसाब से गन्ने का पेमंट देते हैं, चीनी मिलें 40 रुपए किलो में बेच रही हैं। हिन्दुस्तान की सारी चीनी मिलें इसमें करोड़ो रुपए कमा चुकी हैं। उसके बाद भी चीनी विकास निधि और चीनी मिलों के विकास के लिए पैसा क्यों चाहिए, यह बात मेरी समझ से परे हैं। मैं एफसीआई की बात करता हूं। एफसीआई में 1600 करोड़ इन्हें अतिरिक्त चाहिए। बाहर क्या होता है, मुझे नहीं मालूम, लेकिन मेरे जिले में एफसीआई में केवल दलालों की चलती है। किसान बेचारे ट्रेक्टर लेकर गोदाम के सामने खड़े रहते हैं, उनका कोई भी नहीं जाता है और वही किसान जब दलाल को आठ सौ करोड़ रुपए में बेच देता है तो एक मिनट में उसका ट्रेक्टर गोडाउन के भीतर चला जाता है। मैंने जब इस बात को उठाया तो वहां पर 40 किलोमीटर के रेडियस में एफसीआई के आफिसरों का ट्रंसफर कर दिया गया और अपने काम की जिम्मेदारी खत्म कर दी गई। दस लाख टन पांच वर्षों में एफसीआई का अनाज सड़ा है, क्या इसके लिए किसी भी एक आदमी को छीटी से सजा भी दी गई? मेरा कहना है कि इसमें जवाबदेही तय हो।           सभापति महोदय, अभी कोलकाता बंदरगाह पर  40 हजार टन दाल सड़ गई और किसी पर कोई कार्यवाही नहीं हुई, जब कि यहां दाल की कितनी किल्लत है। यह बात किसी से छिपी नहीं है।...( व्यवधान) मैं होम मिनिस्ट्री पर बोलना चाहूंगा कि इस साल दो बार बजट पेश हो चुका है और इंटेलीजेंस ब्यूरो ने अब सप्लीमेंट्री डिमांड्स के लिए 185 करोड़ रुपए एस्टेब्लिशमेंट रिलेटेड एक्सपेंडीचर के लिए मांगा है। मेरी समझ में नहीं आ रहा है कि हमारा इंटेलीजेंस ब्यूरो कितना चुस्त एवं सतर्क है, उसकी अपनी एक साल की क्या डिमांड्स हैं, यह नहीं समझ सकता है तो वह हम सब की रक्षा कितनी इफेक्टिवली करेगा, यह सोचने की बात है। आईबी और रॉ का क्या खर्च है, यह संसद की चीज नहीं है, लेकिन मेरा माननीय गृह मंत्री जी से अनुरोध होगा कि वह जरूर ध्यान रखें कि उसमें कोई भी धांधली न हो। इसी तरह आईसीडीएस में 1080 करोड़ आप सप्लीमेंट्री में मांग रहे हैं और आंगनबाड़ी सेविकाओं को आप 50 रुपए प्रतिदिन देते हैं। अगर हम अपने यहां किसी मजदूर को दैनिक मजदूर रखें और उसे 50 रुपए दें तो आप तुंत हमें जेल में भेज देंगे। लेकिन भारत सरकार आंगनबाड़ी सेविकाओं को केवल 50 रुपए प्रतिदिन देती है, उसके लिए किस की जिम्मेदारी है, उन्हें मिनिमम वेजेज भी नहीं मिलता।...( व्यवधान) MR. CHAIRMAN : Please sit down now.  डॉ. संजय जायसवाल : सभापति महोदय, मैं अपना बाकी भाषण ले कर देता हूं। MR. CHAIRMAN: Hon. Members, the discussion on the Supplementary Demands for Grants (General) is over, and the reply of the hon. Minister will be tomorrow.

Discussion On The Supplementary Demands For Grants In Respect Of ... on 10 December, 2009

Lok Sabha Debates

PETITIONER: STERLING GENERAL INSURANCE CO. LTD. Vs. RESPONDENT: PLANTERS AIRWAYS PVT. LTD. DATE OF JUDGMENT19/12/1974 BENCH: MATHEW, KUTTYIL KURIEN BENCH: MATHEW, KUTTYIL KURIEN BHAGWATI, P.N. UNTWALIA, N.L. CITATION: 1975 AIR 415 1975 SCR (3) 136 1975 SCC (1) 603 ACT: Arbitration Act, 1940, Section 37(4)-"Undue hardship", meaning of-Extension of time for referring the dispute to arbitration-"Undue hardship", if could be given a liberal interpretation. HEADNOTE: The respondent , a common carrier of goods, had taken out three transit policies of insurance renewable every year from the appellant. The freight policy taken out in January 1969, was against risk of loss or damage to any goods or merchandise during transit. In June 1971. the respondent declared to the appellant that it had received for transit a consignment of 185 packages of general merchandise alleged to be of the total value of Rs. 1,10,000/(approx) for transportation from Calcutta to various places in Assam and Tripura and paid the requisite premium on the value of goods and the goods stood insured under the said policy. According to the respondent on the evening of 29-6-71, the consignment of 185 packages was loaded in Truck No. WGH- 8261, and the truck left Calcutta on the same day for Gauhati. It is alleged that the owner of the truck reached Barasat on the night of 29th June, 1971, there was a robbery and neither the truck, nor the driver, nor the merchandise could be traced. On 1-7-1971, the respondent sent letters to the officer incharge of Jorabagan Police Station, the Assistant Commissioner of Police, Intelligence Branch, Lall Bazar. Calcutta and the Deputy Commissioner of Police Intelligence Branch intimating them that the truck, the driver, the assistant and the merchandise could not be traced. A copy of the letter sent to the Assistant Commissioner of Police. Lall Bazar, Calcutta was sent to the appellant and it was received by the appellant on 2-7- 1971. On 1-7-1971 and 21-9-1971, the respondent lodged the claim for loss with the appellant on the basis that the loss was covered by the policy. On 3-7-1971, the appellant sent a, letter to the respondent calling upon the respondent to furnish the particulars as regards the name and address of the owner of the vehicle, the name and' address of the driver and other particulars. On 21-9-1971 the respondent informed the appellant by a letter that the information and the records asked for in the letter dated 3-7-1971 were already supplied to Mr. A. L. Chopra, the agent of the appellant on 5-7-1971 when he called upon the respondent for that, purpose. On 10-10-1971. the appellant wrote to the respondent informing that until the report of the investigation by the police was produced by the respondent, it would not be possible for the appellant to proceed further in the matter. The appellant received a copy of the investigation report by the police at Barasat on 12-5-1972. The report was to the effect that the alleged episode, of robbery was false. On this basis, the appellant sent to the respondent a letter dated 4-8-1972 stating the contents of the investigation report of the police at Barasat asking for the investigation report of Jambagan Police Lall Bazar Police. Thereafter the appellant intimated the respondent by letter dated 16-2-1973 disclaiming its liability under the freight policy as regards the loss of the consignment of 185 packages. On receipt of the letter, the respondent wrote to the appellant on 30-3-73 asking for the ground on which the appellant disclaimed its liability. The appellant sent a letter after two months on May 30, 1973, stating that it had nothing to add to what had been stated in its letter dated February 16, 1973. Thereafter, the respondent took the advice of solicitors and counsel. On 17-8-1973, the respondent filed the application before the High Court under s. 37(4) of the Act for extension of time for referring the dispute to arbitration till a date 15 days after the order of the High Court. In the application the respondent stated the reasons for the delay in filing the application in court after receiving the letter dated May 30, 1973. In answer to the application, the appellant contended that s. 37(4) of the Act had no application that the Court had no jurisdiction to extend the time and that even if the court had 137 jurisdiction, there were no valid grounds for extension. The learned Judge of the High Court passed the order extending the time to refer the dispute to arbitration within a fortnight from 14-1-1974. In this appeal by special leave, it was contended for appellant that there would be no undue hardship to the respondent if the time for preferring the claim to arbitration is not extended and, therefore, the High Court went wrong in exercising its discretion by extending the time. Rejecting the contention and dismissing the appeal, HELD ; (i) Court has to take a liberal view of the meaning of the words "undue hardship" occurring in section 37(4) of the Arbitration Act, 1940. 'Undue' must mean something which is not merited by the conduct of the claimant, or is very much disproportionate to it. [143E-F] Steamship Co. of 1912, etc. v. Anglo-American Grain Co. [1958] 2 Llyod's Rep. 341; Watney, Comba, Raid & Co. v. E. M. Dower & Co. etc. [1956] 2 Lloyd's Rep. 129, 13 1; F. E. Hookway & Co. Ltd. v. H. W. H. Hopper & Co. [1950] 2 All E.R. 842; Stanhope Steamship Co. Ltd. v. British Phosphate Commissioners [1956] 2 Lloyd's Rep. 325; and Librarian Shipping etc. v. A King & Sorts [1967] 1 All E.R. 934. referred to (ii) The respondent was having dealings with the appellant in the business of insurance from 1958 onwards and in no instance was the claim made by the respondent rejected by the appellant. The conduct of the respondent in enquiring of the appellant the grounds on which the claim was rejected was quite reasonable. It was only after the grounds of rejection were known that the respondent could have decided whether to resort to arbitration or not. If the grounds of rejection would come within the clause of exclusion of liability under the Policy, it would serve no purpose to incur the expense and hardship involved in resorting to arbitration. The appellant did not give the reason for disclaiming liability even in its letter dated 30-5-1973. We do not think that there was any lack of promptness on the part of the respondent in waiting for the reply to its letter dated 30-3-1973. In the facts and circumstances of the case it is clear that the High Court exercised its discretion properly in extending the time. The conduct of the respondent was reasonable. It took all steps it could when it knew about the alleged robbery to inform the police and the appellant. The fact that the Barasat police reported that the case was false does not necessarily mean that the respondent tried to practise any fraud on the appellant. The respondent had filed a suit against the owner of the truck in question in July 1972 for the recovery of the amount of loss. It also paid the claims arising out of the loss of goods which were transported through the truck. All these go to show the bona fides and reasonableness of the conduct of the respondent. Both the amount at stake and the reasons for delay are material in considering the question of undue hardship. It cannot be said that any material prejudice would be caused to the appellant by extending the time. There would be undue hardship if time is not extended, as the consequence of non-extension would in any event be excessive and out of proportion to the fault of the respondent, if any, in not being prompt. It also cannot be, said that the mere fact that a claim would be barred would be undue hardship. [144B-C; 14; 145A-B] JUDGMENT: V.M.K. Appeal dismissed. 1-L379SupCI/75 146 CIVIL APPELLATE JURISDICTION: Civil Appeal No. 535 of 1974. Appeal by special leave from the Judgment and order dated the 14th January, 1974 of the Calcutta High Court in Award Case No. 181/1973. S. T. Desai, B. P. Maheshwari, Sharad Manohar and Suresh Sethi, for the appellant. Somnath Chatterjee, and P. K. Mukherjee, for the respondent. The Judgment of the Court was delivered by 138 MATHEW, J.-This appeal. by special leave, is directed against an order of a learned judge of the' Calcutta High Court allowing an application filed under s. 37(4) of the Arbitration Act, 1940 (hereinafter called the Act) for extension of time to refer the matter of arbitration. The facts are these. The appellant is a company doing business in general insurance. The respondent carries on business as a common carrier of goods. The respondent had taken out three transit policies of insurance renewable every year. The policy which is relevant for the purpose of the present appeal is freight policy No. CL1/RE-P/257 taken by the respondent in January, 1969 from the appellant against risk of loss or damage to any goods or merchandise during transit. In June 1971, the respondent declared to the appellant that it had received for transit a consignment of 185 packages of general merchandise alleged to be of the total value of Rs. 1,10,000 (approx) for transportation from Calcutta to various places in Assam and Tripura and paid the requisite premium on the value of goods and the goods stood insured under the said policy. According to the respondent, on the evening of 29-6-71, the consignment of 185 packages was loaded in Truck No. WGH-8261, and the truck left Calcutta on the same day for Gauhati. It is alleged that the owner of the truck informed the respondent that after the truck reached Barasat on the night of 29th June, 1971, there was a robbery and neither the truck, nor the driver, nor the merchandise could be traced. On 1-7-1971, the respondent sent letters to the officer-incharge of Jarabagan Police Station, the Assistant Commissioner of Police, Intelligence Branch, Lall Bazar Calcutta and the Deputy Commissioner of Police, Intelligence Branch intimating them that the truck which left Calcutta on 29th June 1971 had not reached Beniagram at the scheduled time and that the truck, the driver, the assistant and the merchandise could not be traced. A copy of the letter sent to the Assistant Commissioner of Police, Lall Bazar, Calcutta was sent to the appellant and it was received by the appellant on 2-7-1971. On 1-7-1971 and 21-9-1971, the respondent lodged the claim for loss with the appellant on the basis that the loss was covered by the policy. On 3-7-1971, the appellant sent a letter to their respondent calling upon the respondent to furnish the particulars as regards the name and address of the owner of the vehicle, the name and address of the driver and other particulars. On 21-9-1971, the respondent informed the appellant by a letter that the information and the records asked for in the letter dated 3-7-1971 were already supplied to Mr. A. L. Chopra, the agent of the appellant on 5-7-1971, when he called upon the respondent for that purpose. On 10-10-1971, the appellant wrote to the respondent informing that until the report of the investigation by the police was produced by the respondent, it would not be possible for the appellant to proceed further in the matter. The appellant received a copy of the investigation report by the police at Barasat on 12-5-1972. The report was to the effect that the alleged episode of robbery was false. On this basis, the appellant sent to the respondent a letter dated 4-8-1972 stating the contents of the investigation report of the police at Barasat asking for the investigation report of Jarabagan 139 Police Lall Bazar Police-. Thereafter the, appellant intimated the respondent by letter dated 16-2-1973 disclaiming its liability under the freight policy as regards the loss of the consignment of 185 packages. On receipt of the letter, the respondent wrote to the appellant on 30-3-1973 asking for the grounds on which the appellant disclaimed its liability. The appellant sent a letter after two months on May 30, 1973, stating that it had nothing to add to what had been stated in its letter dated February 16, 1973. Thereafter, the respondent took the advice of solicitors and counsel. On 17-8-1973, the respondent filed the application before the High Court under s. 37(4) of the Act for extension of time for referring the dispute to arbitration till a date 15 days after the order of the High Court. In the application, the respondent stated the reasons for the delay in filing the application in court after receiving the letter dated May 30, 1973. In answer to the application, the appellant contended that s. 37(4) of the Act had no, application, that the court had no jurisdiction to extend the time and that even if the court had jurisdiction, there were no valid grounds for extension. The application came up for hearing before a learned Judge and lie passed the order extending the time to, refer the dispute to arbitration within a fortnight from 14-1-1974. The, question that arises for consideration is whether the High Court had power to extend the time and if it had power, whether it exercised its power properly in extending the time for preferring the claim to arbitration. That will depend upon a correct interpretation of the relevant clauses of the policy and of s. 37(4) of the Act. Clause I of the policy states that notice of any accident, loss or damage affecting the insurance shall be given to the Company at the earliest possible date and not later than 30 days from the date of the accident, loss or damage. Clause 2 of the policy provides that in the event of any loss or damage covered by the insurance shall produce and give to the Company all evidence as may be reasonably required by the Company. Clause 9 provides that if the insured shall make any claim knowing the same to be false or fraudulent as regards the amount or otherwise the insurance shall become void and all claims thereunder shall be forfeited. Clause 11 states that all differences arising out of the contract shall be referred to the decision. of an arbitrator to be appointed in writing by the parties or if they cannot agree upon a single arbitrator, to the decision of two arbitrators, one to be appointed in writing by each of the parties within one calendar month after having been required in writing so to do by either of the parties. It further provides that the making of an award by the arbitrator or arbitrators shall be a condition precedent to any right of action against the Company. Clause 12 which is the material'. clause for the purpose of this case reads : _ It was not seriously contended that s. 37(4) of the Act was not applicable to the agreement embodied in the policy in question and the High Court had no jurisdiction to extend the time. The only contention pressed on behalf of the appellant was that in the circumstances of the case, there would be no undue hardship to the respondent if the time for preferring the claim to arbitration is not extended and, therefore, the High Court went- wrong in exercising the discretion by extending the time. There are no decisions of this Court or of the High Courts concerning the relevant consideration to be taken into account in exercising the jurisdiction for extending time under S. 37(4) of the Act. Section 16(6) of the English Arbitration Act, 1934 which is practically the same as s. 27 of the English Arbitration Act of 1950 is in pari materia with s. 37(4) of the Act. Therefore, the interpretation placed by English Courts upon s. 16(6). and s. 27 of the respective ,Acts has great persuasive value. The English courts originally took a very strict and narrow view ,of the words "undue hardship". In Steamship Co. of 1912 etc. v. Indlo-American Grain Co. etc.(1) Lord Parkar, C.J. said : In Watney, Comba, Raid & Co. v. E. Al. Dower & Co. Ltd.(2) Goddard, C.J. said : 1. (1958) 2 Lloyd's Rep. 341. 2. (1956) 2 Lloyd's Rep. 129, 131. undue hadship, which is what the section requires to be found by the court before it extends the time. The section does not mean that this Court can take out of the contract the provision which will bar the claim if it is not pursued in time. They have no power to do that. The only thing they have power to do is to extend the time if undue hardship is caused. One, can visualise certain cases of undue hardship.". In F. E. Hookway & Co. Ltd. v. H. W. H. Hopper & Co.(1) where the buyers made an application for extension of time under S. 16(6) of the English Act of 1934, Denning, L.J. observed That the extent of delay in a relevant circumstances to be considered, that if the delay is not on account of the fault of the buyer, it would no doubt, be an undue hardship on him to hold the clause against him but, if the delay is his own fault, the hardship may not be undue as it may be a hardship which it is due and proper that he should bear. He further said that another relevant circumstance was whether there was evidence of any loss on any sub-contracts and claims by sub-buyers or any complaints by them and if there was evidence of such loss or claims, then the court would take a lenient view of the delay and bold that, notwithstanding it, there was undue hardship on the buyer. In Stanhope Steamship Co. Ltd. v. British Phosphate Commissioners(2), Singleton. J., in delivering the judgment said "What, then, is the meaning of "undue hardship" ? "Undue", it is said by Mr. McCrindle, means something which is not merited by the conduct of the claimant. That may be right. If the result of claimant's being perhaps a day late is so oppressive, so burdensome, as to be altogether out of proportion to the fault, I am inclined to think that one may well say that there is undue hardship. Both the amount at stake and the reasons for the delay are material considerations-" In Librarian Shipping etc. v. A King & Sons(3), the facts were these. A vessel was let on a voyage charter party in Centrocon from containing an arbitration clause under which any claim had to be made in writing and the claimant's arbitrator had to be appointed within three months of final discharge. A fire occurred on board the vessel during leading. Both the owners and the charterers had claims against each other. The time limit was to expire on June 26, 1966. The parties were negotiating and. after considerable correspondence. a meeting between both parties was arranged for June 27, 1966, with a view to settlement. The meeting did not result in a settlement. The charterers first realised that time had expired which the owners sought an extension of it by consent, nine days after the expiry. The charterers had not contributed to the delay on the part of the owners in relation to the arbitration clause. The charterers did not consent to the time being extended. The owner-, applied under s. 27 of the Arbitration Act. 1950 for an extension of time on the ground that "undue hardship" would otherwise be caused to them. Their claim 1. [1950] 2 All E.R. 842. 2. (1956) 2 Lloyd's Rep. 325. 3. [1967] 1 All E.R. 934 142 amounted to about pound 33.000. The master granted an extension of time, but on appeal the judge refused it. On further appeal the court by a majority said that if the time were not extended, undue hardship would be caused to the owners since they would be deprived of what might be a valid claim for pound 33,000 by a delay of only a few days due to excusable inadvertence, that the charterers would not in any way be prejudiced by time being extended and so the court would exercise the discretion conferred by s. 27 of the Arbitration Act, 1950, and 'Would extend the time. In the course of his judgment Lord Denning, M. R. observed that in the past the courts had been inclined to emphasize the word "undue" and to say that if a man does not read the contract and is a day or two late, it is a "hardship": but it is not an "undue hardship", because, it is his own fault but that the interpretation was narrow. He said that these time- limit clauses used to operate most unjustly on claimants for, they found their claim barred by some oversight and it was to. avoid that injustice the legislature intervened so as to enable the courts to extend the time whenever "in ,the circumstances of the case undue hardship would otherwise be caused". He also said that the word "undue" in the context simply means excessive hardship greater than the circumstances warrant and that even if a claimant has been at fault himself, it is an undue on him if the consequences are-put of proportion to his fault. He further stated that even if a claimant makes a mistake which is excusable, and is in consequence a few days out of time, then if there is no prejudice to the other side, it would be altogether too harsh to deprive him of ,all chance for ever of coming and making his claim and that is all the more so,, if the mistake is contributed or shared by the other side. He ,- then observed "It was said that this was a matter for the Judge's discretion. True enough. We have, however, said time and again that we will interfere with a Judge's discretion if satisfied that the discretion was wrongly exercised. In any case the judge was, not exercising an unfettered discretion. He felt himself fettered by the. trend of the authorities to give the words "undue hardship" a narrow meaning. I think that we should reverse that trend and give the words their ordinary meaning, as Parliament intended. It would be "undue hardship" on the owners to hold them barred by the clause." In the same case, Salmon, L.J. said that the arbitration clause put it out of the power of the court to grant any relief to a claimant who bad allowed a few days to run beyond the period specified in the clause even although the delay could have caused no conceivable harm to the other side. He said that it would be hard and unjust if a man with a perfectly good claim for thousands of pounds worth of damage for breach of contract inadvertently allowed a day or two to go by was deprived of the right to be compensated for the loss which he -bud suffered, even though the other party bad not been in any way affected by the delay and might perhaps have been guilty of a deliberate breach of contract and that it was to remedy this hardship and injustice that the legislature intervened to alter the Law. He further said 143 "This enactment was a beneficent reform, liberalising the law in an admittedly narrow sector of the commercial field. I have heard it said that when people have spent their lives in chains and the shackles are eventually struck off, they cannot believe that their claims are no longer there. They still feel bound by the shackles to which they have so long been accustomed. To my mind, that factor may explain the court's approach in some of the cases to the problem with which we are now faced. He then summed up his conclusion as follows "In considering this question the court must take all the relevant circumstances of the case into account; the degree of blameworthiness of the claimants in failing to appoint an arbitrator within the time; the amoun t at stake, the length of the. delay; Therefore, we will have to take a liberal view of the meaning of the words "undue hardship." "Undue" must mean something which is 'not merited by the conduct of the claimant, or is very much disproportionate to it. Keeping in view these principles, it has to be seen whether in the facts and circumstances of this case, there was reasonable and sufficient ground for not preferring the claim to arbitration within the time specified in clause 12 of the policy and whether there would be "undue hardship" to the respondent if time not extended. It may be recalled that it was on July 1, 1971 and September 21, 1971 that the respondent lodged its claim with the appellant to recover the loss suffered. Thereafter, various letters passed between the parties. Ultimately, on February 16, 1973, the appellant wrote the letter to the respondent stating that the claim papers submitted in connection with the claim had been scrutinized by the appellant but that it was unable to accept liability for the loss. The respondent then wrote a letter to the appellant on 30-3-1973 complaining about the uncertain language used in the letter dated February 16, 1973 and calling upon the respondent to point out specifically under which clause of exclusion of liability in the policy and the appellant disclaim the liability. The appellant kept quiet for 2 months and then on May 144 30, 1973, seat a letter stating that it had I nothing further to add to what had been stated in its letter dated February 16, 1973. The respondent was having dealings with the appellant in the business of insurance from 1958 onwards and in no instance was the claim made by the respondent rejected by the appellant. The conduct of the respondent in enquiring of the appellant the grounds on which the claim was rejected was quite reasonable. It was only after the grounds of rejection were known that the respondent could have decided whether to resort to arbitration or not. If the grounds of rejection would come within the clause of exclusion of liability under the policy, it would serve no purpose to incur the expense and hardship involved in resorting to arbitration. The appellant did not give the reason for disclaiming liability even in its letter dated 30-5-1973. We do not think that there was any lack of promptness on the part of the respondent in waiting for the reply to its letter dated 30.3.1973. And, in the first week of June, 1973, the respondent made over the papers to the solicitors viz., M/s. Banerji & Co. for the purpose of taking necessary steps for referring the dispute to arbitration in terms of the arbitration clause in the policy. On or about June 15, 1973, the respondent received the written opinion from the Solicitors wherein they stated that since the letter of the appellant disclaiming liability was vague and since the appellant gave no reason for rejection of the claim even in their letter dated 30-5-1973, the appellant might rely upon clause 12 of the policy of insurance and contend that the reference to arbitration would be beyond time. The solicitors, however, advised that in view of the delay on the part of the appellant and its failure to specify any reason for the disclaimer, the respondent might take steps for nominating an arbitrator and proceed with the reference. When the written opinion was received from the solicitors, the respondent had some doubt, because the solicitors did ',lot give a definite opinion. So, it instructed the solicitors to take the opinion of counsel. After preparing the necessary case for the opinion, the solicitors briefed counsel for opinion, on June 28, 1973. The opinion of counsel was to the effect that the respondent should apply for extension of time under S. 37(4) of the Arbitration Act and that was received by the solicitors on 16-7-1973. The respondent was informed of the opinion of counsel and it received a copy thereof on 18-7-1973. After gathering the facts from the records mentioned in the opinion of the counsel the respondent instructed the solicitors to take steps for filing a petition for extension of time. It, however took some time to gather the facts indicated in the opinion of counsel. On 25-7-1973 the respondent's solicitors sent the brief to counsel to draft the petition and the petition was received by them on 30-7- 1973. Thereafter it took sometime to prepare a statement from available records. In the facts and circumstances of this case, we think the High Court exercised its discretion properly in extending the time. The conduct of the respondent was reasonable. It took all steps it could when it knew about the alleged robbery inform the police and the appellant The fact that the Barasat police reported that the case was false does not necessarily mean that the respondent tried to prac- tise any fraud upon the appellant. The respondent had filed a suit against the owner of the truck in question in July 1972 for recovery of the amount of loss. The respondent also paid a suit against the owner of the truck in question in July 1972 for recovery of the amount of loss. The respondent also paid the claims arising out of the loss of goods which were transported through the track. All these go to show the bonafides and reasonableness of the conduct of the respondent. Both the amount at stake and the reasons for delay are material in considering the question of undue hardship. We do not think that any material prejudice would be, caused to the appellant by extending the time. There would be undue hardship if time is not extended, as the consequences of non-extension would in any event be excessive and out of proportion to the fault of the respondent, if any, in not being prompt. We do not say that the mere fact that a claim would be barred would be undue hardship. But considering the amount involved and the reasons for the delay, we think it would be undue hardship to the respondent if time is not extended. We dismiss the appeal but in the circumstances, it is necessary that further time should be given to the appellant to nominate an arbitrator. We, therefore, extend the time one month from the date of this judgment to enable the appellant to nominate its arbitrator. We also think that this is a fit case in which the parties should suffer their own costs of the application in the High Court and of the appeal here.

Author: K K Mathew

Sterling General Insurance Co. ... vs Planters Airways Pvt. Ltd on 19 December, 1974

Supreme Court of India

Gujarat High Court Case Information System Print CR.MA/1048220/2008 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 10482 of 2008 ========================================= NARENDRASINH GANUBHA VAGHELA & 1 - Applicant(s) Versus STATE OF GUJARAT - Respondent(s) ========================================= Appearance : MR MANISH J PATEL for Applicant(s) : 1 - 2. MS MANISHA SHAH, APP for Respondent(s) : 1, ========================================= CORAM : HONOURABLE MR.JUSTICE H.B.ANTANI Date : 07/08/2008 ORAL ORDER Mr MJ Patel, learned advocate for the petitioners seeks permission to withdraw this petition. The permission is granted. The petition stands rejected as withdrawn. (H.B. Antani, J.) mrpandya*     Top

Author: H.B.Antani,&Nbsp;

Narendrasinh vs State on 7 August, 2008

Gujarat High Court

JUDGMENT Sujata Manohar, J. 1. The petitioners are the Life Insurance Corporation of India while Respondents No. 1 and 2 are All India Insurance Employees' Association and All India LIC Employees' Federation, respectively. 2. The petitioners have challenged in this writ petition an Award dated 31.1.1986 of the Central Government Industrial Tribunal No. 1 Bombay in Reference No. CGIT-11 of 1983. Under an order dated 29.10.1983 the Central Government in exercise of powers under Section 10(1)(d) of the Industrial Disputes Act, 1947 referred the following dispute for adjudication to the Central Government Industrial Tribunal No. l, Bombay constituted under Section 7A of the Industrial Disputes Act. The reference was: "Whether the action of the management of Life Insurance Corporation of India, Bombay in closing the cadre of Superintendent (Admn.), Superintendent (Typing pool), Superintendent (Adrema) and Superintendent (Machine) and in denying promotional avenues to the section Heads/Higher grade assistants in all the offices of LIC of India all over India without getting the LIC of India (Promotion) Regulations, 1976 duly amended is justified ? If not, what relief are the concerned workmen entitled ?" 3. The cadre of Superintendents, Section Heads/Higher Grade Assistants are cadres of Class III employees. The cadre of Superintendent is a supervisory cadre. The cadre of Assistant Administrative Officers is also a supervisory cadre but it is in Class I. It seems that prior to 1981, Superintendents and Section Heads in Class III posts were eligible for promotion as Asst. Administrative Officers. In 1981 on account of reorganisation of work at the branch level, the petitioners decided to appoint Asst. Administrative Officers at the head of branches. Till then some of the branches had Superintendents while other branches had Section Heads as well as Asst. Administrative Officers. The petitioners decided not to make any further appointment to the posts of Superintendent and thereby to gradually close the cadre of Superintendents, appointing instead Asst. Administrative Officers. This policy was challenged by Respondents No. l and 2 resulting in the above reference. 4. The Award has upheld the contention of respondents No. l and 2 and has directed the petitioners to make promotions to the post of Superintendents up to 1st June 1985 in the manner laid down in the Award. The present petition challenges this Award. 5. The first contention of the petitioners relates to the jurisdiction of the Central Government Industrial Tribunal to entertain a dispute which will affect the functioning of the petitioners all over India. It is submitted by the petitioners that the Central Government Industrial Tribunal No. l, Bombay has only a limited territorial jurisdiction confined to Maharashtra and Gujarat and it has no jurisdiction to decide disputes which have an effect all over India. The petitioners submit that a National Tribunal ought to have been constituted for this purpose under the Industrial Disputes Act, 1947. In its absence the award which is to be implemented all over India is without jurisdiction. 6. Section 2(r) of the Industrial Disputes Act, 1947 defines 'Tribunal' as 'an Industrial Tribunal constituted under Section 7A'. Section 2(11) defines 'National Tribunal' as 'a National Industrial Tribunal constituted under Section 7B'. Section 7A provides that the appropriate Government may, by notification, constitute one or more Industrial Tribunals for the adjudication of industrial disputes relating to any matter whether specified in the Second Schedule or the Third Schedule and for performing such other things as may be assigned to them under the said Act. The Second and Third Schedules deal with the subject-matter of various disputes. There is nothing in Section 7A or the Second Schedule and the Third Schedule restricting the territorial jurisdiction of Tribunals under Section 7A. 7. Section 7B deals with National Tribunals. It provides that the Central Government may by notification constitute one or more National Industrial. Tribunals for the adjudication of industrial disputes which in the opinion of the Central Government involve question of a national importance or are of such a nature that industrial establishments situated in more than one State are likely to be interested in or affected by such disputes. 8. Section 10 which deals with reference of disputes to Industrial Tribunals provides under Sub-section. (1)(d) for reference of dispute relating to matters specified in the Second or Third Schedule to a Tribunal for adjudication as set out therein. Section 10(1a) provides that where the Central Government is of opinion that any industrial dispute involves any question of national importance or is of such a nature that industrial establishments situated in more than one State are likely to be interested in or affected by such dispute and that the dispute should be adjudicated by a National Tribunal, then the Central Government, whether or nor it is the appropriate Government may refer the dispute, whether it relates to any matter under Second Schedule or Third Schedule, to a National Tribunal for adjudication. 9. Section 10(2A) states that the order of reference shall specify the period within which such Tribunal or National Tribunal, inter alia, shall submit its award. In none of these provisions is there any limitation on the territorial jurisdiction of the Central Government Industrial Tribunal. In describing the nature of dispute which may be referred to a National Tribunal the Act does provide that if a dispute is likely to affect industries in more than one State, the dispute may be referred to a National Tribunal. But this is a matter of discretion which the Central Government has to exercise in deciding whether or not to appoint a national tribunal. The language of Section 7B and Section 10(1a) and the phrase "the Central Government may constitute" or "the Central Government may refer" used in these sections indicates that the Central Government has a discretionary power to constitute a national tribunal in disputes, which in its opinion, are of the kind referred to in these sections and if it is of the view that such dispute should be decided by a national tribunal. The Central Government, therefore, was not bound to constitute a national tribunal. What is more important and relevant, these sections do not expressly or impliedly, curtail the territorial jurisdiction of other tribunals such as a Central Government tribunal. The award, therefore, cannot be considered as beyond the territorial jurisdiction of the Central Government tribunal. 10. In this respect my attention was drawn to a decision in the case of Indian Oxygen Ltd. v. Their Workmen reported in 1969-I L.L.J. 235 where the State Government had referred certain disputes to the State Tribunal. The employer had several establishments in the State. Looking to the terms of reference the Court held that the reference was only confined to workmen in the establishment of the employer at Jam-shedpur and it would not apply to the workmen of other establishments. This judgment has no relevance to the present case. 11. In the case of Lipton Ltd. v. Their Employees reported in 1959-I LLJ 431 dispute was referred by the Delhi Administration to the Addl. Industrial Tribunal, Delhi for adjudication. One of the contentions raised before the Supreme Court was that the Industrial Tribunal had no jurisdiction to make an award in respect of employees of the Delhi Office who were employed outside the State of Delhi. The Supreme Court held that all the employees of the Delhi Office, whether they worked in Delhi or not, received their salaries from the Delhi Office and they were controlled by the Delhi Office and hence the Delhi State Government was the appropriate Government within the meaning of Section 2 of the Industrial Disputes Act, 1947 relating to dispute which arose and under Section 18 of the Act the award made by the Tribunal was binding on all employees employed in the Delhi Office. Once again this decision is of no direct relevance to the point at issue. 12. I have not been shown any authority to the effect that when the award affects employees in more than one State and when the Tribunal is properly constituted by the appropriate Government, the Tribunal will not have any jurisdiction unless it is a national tribunal constituted by the Central Government. 13. In order to consider the merits of the dispute, it is first necessary to consider the provisions of the Life Insurance Corporation Act and the Regulations framed under it. Under Section 49 of the Life Insurance Corporation Act, 1956, prior to its amendment in 1981, the Corporation, with the previous approval of the Central Government, was empowered to make regulations to provide for, inter alia, the terms and conditions of service of employees of the Corporation. These regulations were accordingly framed. The relevant regulations are Life Insurance Corporation of India (Promotion) Regulations, 1976. By virtue of Life Insurance Corporation (Amendment) Act, 1981 the Regulations framed by the Corporation with respect to the terms and conditions of service of employees were deemed to be rules made by the Central Government under the amended Section 48 of the L.I.C. Act. These Regulations were, therefore, statutory Regulations validly in force at the relevant time. Under Regulations 5 of the Life Insurance Corporation of India (Promotion) Regulations, 1976 promotions shall be effected only against vacancies in sanctioned posts. 14. In connection with promotions the Board of Life Insurance Corporation of India had met from time to time to fix the cadre strength of officers and the number of vacancies to be filled, inter alia, by promotion. My attention was drawn to a note for the Board of Directors, L.I.C. prepared by the Managing Director in August 1959 relating to proposals for fixation of cadre strength for officers. It states that the posts of Junior Officers (i.e. Asst. Administrative Officers) and Superintendents are ordinarily considered as interchangeable particularly from the point of view of fixation of cadre strength. The note goes on to say that in considering promotions the combined strength of Superintendents and Junior Officers should be taken into account. The decision regarding requirements of Superintendents and Junior Officers in each office may be left to the Staff Sub-Committee in each zone. The guiding principle would, however, be that one Superintendent or Junior Officer would be provided in each of the main departments of the Divisional Office. Where the staff in a particular department exceeds 25, one or more Superintendents may be posted on the basis of one Superintendent for every 20 staff members or so. 15. Fixation of cadre strength is important because existing vacancies will depend upon the cadre strength of the posts in which vacancies are to be determined. And promotion is made against existing vacancies. The extract from the Minutes of the Board meeting held on 24.8.1959 also shows that it was decided that when the strength in a particular department exceeds 25 and reaches the level of 32 another Superintendent or Junior Officer should be provided. 16. From time to time the Board has fixed the cadre strength of, inter alia, Superintendents and Asst. Administrative Officers on the basis of recommendations made by. the Zonal Staff Selection Committee. The Notes and Decisions in this connection show the figures relating to the number of Assistant Administrative Officers/Superintendents which were allowed for various departments. These have been relied upon by the petitioners to show that in order to determine the cadre strength, the posts of Superintendents and Asst. Administrative Officers were combined. 17. The recommendations, however, apart from showing the combined strength of two cadres, also give a break-up relating to posts of Superintendents and Asst. Administrative Officers. The directors, therefore, appear to have considered the total number of posts by combining the cadres of Asst. Administrative Officers and Superintendents. The allotment of Superintendents or Asst. Administrative Officers is then made. The manner of determining the number of available posts in these two cadres, therefore, suggests that the posts of Superintendent and Asst. Administrative Officer are inter-changeable. 18. Thus, right up to 1981 the practice appears to be to consider the proposed strength of the combined cadre of Superintendents and Asst. Administrative Officers. Thereafter the Board has decided upon the actual number of Superintendents and the actual number of Asst. Administrative Officers to fill the sanctioned posts. 19. In 1981, however, the Life Insurance Corporation decided on decentralisation of various functions to be given to the branches. It felt the need for strengthening the branches by posting Additional Officers on the administrative side. The Board, at its meeting held on 11.3.1981, approved the provision of an Addl. Administrative Officer as may be decided by the Chairman, in branches where the number of staff sanctioned in Class III was 25 or more. It also granted approval to the appointment of as many Administrative Officers as may be decided upon by the Chairman to meet the requirements of restructured branches. In effect it was decided to upgrade the working of branches and appoint there an Asst. Administrative Officer instead of a Superintendent. It was decided that the vacancies of Superintendents would not be filled in. In fact, in the statement which the petitioners filed before the Central Government Industrial Tribunal, they stated at Note (5) that the cadre of Superintendents was closed by the order of the Chairman of the Corporation in December 1980, and the posts of Superintendents have not been filled in after 1981. Wherever the posts of Superintendents have fallen vacant, appointments have been made against those vacancies in the cadre of Asst. Administrative Officers. 20. This decision of the Corporation was the subject-matter of the Reference before the Central Industrial Tribunal. It is the contention of the respondents that by virtue of this decision, changes have been effected in the statutory service conditions of the employees, particularly in relation to their promotions to the posts of Superintendents. They submit that this can only be done by amending the statutory regulations; it cannot be done by an administrative decision taken by the Chairman. Such an amendment was in effect made on 11.4.1985 by reason of a notification issued by the Government of India, Ministry of Finance, amending the Life Insurance Corporation of India Class III and Class IV Employees (Revision of Terms and Conditions of Service) Rules, 1985. This was done in exercise of powers conferred by Section 48 of the L.I.C. Act, 1956. Under Clause 5 of this notification it was provided that there shall be no fresh appointment or promotions to the cadre of Section Heads and Superintendents on or after the 1st July 1985. The respondents contend that between 1981 and April 1985 the action 'taken by the Corporation in not filling the posts of Superintendents is without any authority of law. 21. The past practice of the Life Insurance Corporation establishes two things : (1) That there were separate cadres of Superintendents and Asst. Administrative Officers. Obviously one was a Class III post and the other was a class I post. (2) But, for determination of sanctioned strength of each cadre both the cadres were combined and were to some extent considered inter-changeable depending upon administrative exigencies of the Corporation, The strength of cadre which was sanctioned as per the recommendations of the Zonal Staff Selection Committee from time to time was combined strength of both cadres but with separate allocation for Superintendents as well as Asst. Administrative Officers. 22. In view of this practice, is it open to the Chairman of the Life Insurance Corporation to give a directive that all available vacancies in the combined cadres of Superintendents and Asst. Administrative Officers shall be filled only by Assistant Administrative Officers? From the facts set out above, it is clear that this directive was not an administrative adjustment of posts between Superintendents and Asst. Administrative Officers. The decision was taken as a policy decision in view of the fact that the Corporation wanted branches to be headed by Asst. Administrative Officers only. The intention was, therefore, not to fill in any vacancy in the cadre of Superintendent with a view to eventually closing the cadre of Superintendents. This cannot be considered an administrative adjustment of cadre strength between Superintendents and Asst. Administrative Officers. The decision in effect was to close the cadre of Superintendents. In fact, this is what is stated by the petitioners themselves. 23. If this is so, then, clearly the statutory service conditions of employees of respondents No. 1 and 2 are affected by such a decision because the statutory regulations dealing with promotions provide for channels of promotion to various posts including the post of Superintendent. The Schedule to the Life Insurance Corporation of India (Promotion) Regulations, 1976 describes the categories of employees who are eligible for promotion to the post of Superintendent, These are higher grade assistants and section heads. This channel of promotion was sought to be changed. This could not have been done without amending the Regulations concerned. 24. In the case of The, Life Insurance Corporation Higher Grade Assistants Association v. Life Insurance Corporation of India reported in 1973 1 L.L.J. 87 the Madras High Court was required to consider a settlement arrived at between some Unions of L.I.C. employees and L.I.C. of India under which promotion rules were amended. The L.I.C. Higher Grade Assistants Association had not been consulted in the matter. It challenged the settlement arrived at. One of the contentions raised before the High Court was that the terms and conditions are in the nature of administrative instructions issued by the Chairman and, therefore, all the employees are necessarily within its grip. The Court held that the arrangement in question touched upon the terms and conditions of service of the employees of the Corporation. They did not have the approval of the Central Government nor were the arrangement notified in the official gazette as required under Section 49 of the L.I.C. Act. If the arrangements in fact affected the terms and conditions of service, then, such a settlement would be hit by non-compliance with the specific mandate of Section 49(1). 25. In this connection a reference may also be made to the case of S.R.S Mony v. Life Insurance Corporation of India reported in 1972 II L.L.J. 546, paragraph 7. In this case before the Kerala High Court the employees had challenged a notice issued under Section 9A of the Industrial Disputes Act proposing change of conditions of service pursuant to a settlement reached between the Corporation and some trade unions representing certain classes of employees. One of the contentions raised before the Kerala High Court was that such a change could not be effected without compliance with the provisions of Section 49 of the L.I.C. Act. The Court, however, did not directly pronounce upon this contention. It felt that it was not necessary to go into this question as the decision could be given on other grounds. 26. That case is therefore not directly relevant. In the present case, however, there is a change effected in Promotion Regulations by virtue of closing the cadre of Superintendents. Such a change requires compliance with Section 49 or amended Section 48C of the L.I.C. Act, 1956. 27. Mr. Paranjpe, learned Counsel for the petitioners, has contended that in fact the cadre of Superintendents was not closed because there were a number of Superintendents who were already appointed in the cadre whose services were not affected in any manner. He submitted that the action of the Chairman was merely an administrative adjustment between the strength of two cadres of Superintendents and Asst. Administrative Officers. This submission, however, must be rejected in the circumstances of the present case because although the cadre of Superintendents was not abolished, promotions to the cadre of Superintendents were stopped. This was admittedly done with a view to eventually close the cadre of Superintendents. There was, therefore, a change in the channel of promotion. This change. required a corresponding change in the Promotion Regulations. 28. The decision of the Life Insurance Corporation was undoubtedly a bona fide decision taken looking to the requirements of the Corporation. The Chairman took steps in order to upgrade the working of branches of Life Insurance Corporation since a decision was taken to decentralise the working of the Corporation. The Corporation, therefore, felt a bona fide need to appoint Asst. Administrative Officers to branches. But for this purpose they cannot rely entirely on administrative instructions when there are statutory regulations which govern the channels of promotions. 29. It was next submitted by the respondents that notice under Section 9-A of the Industrial Disputes Act, 1947 was not given to effect change in the conditions of service. Hence also the directions were bad in law. Section 9-A of the Industrial Disputes Act lays down that no employer, who proposes to effect any change in the conditions of service applicable to any workman in respect of any matter specified in the Fourth Schedule shall effect such change without giving to the workmen likely to be affected by such change a notice in the prescribed manner of the nature of the change proposed to be effected. Notice is required only when any change in the conditions of service relating to matters specified in the Fourth Schedule are required to be effected. In the Fourth Schedule the clause relied upon is Clause 11, which deals with 'any increase or reduction (other than casual) in the number of persons employed or to be employed in any occupation or process or department of shift, not occasioned by circumstances over which the employer has no control'. This clause has no application to the present case because there has not been any increase or reduction in the number of persons employed. What is changed is merely the channel of promotion. Therefore, the provisions of Section 9-A of the Industrial Disputes Act are not attracted. In the case of G.P. Vahal v. The Manager, Reserve Bank of India. Kanpur reported in 1983 L.I.C. 738 the Allahabad High Court held that promotion to higher posts dealt with in the Modified Scheme of promotion of the Reserve Bank does not fall in any of the entries contained in Schedule IV. Consequently notice as contemplated by Section 9-A was not necessary. 30. It has, however, been urged by respondents No. 1 and 2 that a change in the channel of promotion is a change in the conditions of service. They cited in support the decision in the case of Reserve Bank of India, Bombay v. C. T. Dighe reported in 1981(2) LLJ 292, This case pertains, inter alia, to Section 33(1)(a) of the Industrial Disputes Act, 1947. The Supreme Court held that a change in the chance of promotion pending reference was not a change in service conditions under Section 33(1)(a). This decision has no application here. 31. The next case cited was Air India Cabin Crew Association v. Air India reported in 1981 Bom. Case Rep. 646. In that case Section 9-A was held not applicable because the establishment was exempt from that section. Moreover, it was held that no notice of change was necessary because the employees were governed by rules and regulations notified by the appropriate Government. This case is of no relevance here. 32. The case of Mohd. Shujat Ali v. Union of India was also cited to show that a right of promotion or a right to be considered for promotion is a rule prescribing a condition of service. The question to be considered in the present case, however, is whether there is any change as contemplated under Section 9-A. The judgment is of no assistance in this regard. The same is the case with regard to Workmen v. Hindustan Lever Ltd. reported in A.I.R. 1985 S.C. 641, at p. 650. Changes made in the present case are not covered by any of the items in the Fourth Schedule. 33. In any case, since the conditions of service and channels of promotion are laid down by statutory regulations in the present case, they have to be changed only by amendment of these statutory regulations. This has, in, fact been done in 1985. But till the amendment of 1985 such a change could not have been effected. In these circumstances, the Award which is given by the Central Government Industrial Tribunal cannot be considered as perverse. The Tribunal has rightly held that during the period 1981 until the amendment of Regulations in 1985, promotions to the posts of Superintendents ought to have been made and the cadre ought not to have been closed merely on the instruction of the Chairman. 34. It is submitted by Mr. Paranjpe, learned Counsel for the petitioners, that in view of the amendments made in 1985, all fresh appointments and promotions to the cadre of Superintendents have been stopped from 1.7.1.985. He has submitted that, therefore, even in the existing vacancies no promotions can now be made to the cadre of Superintendents. The amendment prohibits promotions to existing vacancies. Such vacancies are those arising in the normal course of administration. They cannot cover vacancies which arose as a result of an unauthorised action of the Life Insurance Corporation and its Chairman. The Tribunal has given detail directions in relation to the posts of Superintendents which ought to have been filled between 1981 and 1985 and has given directions as to the manner in which those posts are to be deemed to have been occupied. The Tribunal has given detail directions that no such promotions can be made with effect from 1.7.1985 in view of the amendment. The Award, therefore, docs not violate in any manner the amendments which have been effected. In these circumstances I do not see any reason to interfere with the Tribunal's findings. 35. Petition is, therefore,, dismissed and the rule is discharged. 36. In the circumstances of the case there will be no order as to costs. 37. On the application of the petitioners status quo to continue for a period of four weeks.

Author: S Manohar

Life Insurance Corporation Of ... vs All India Insurance Employees' ... on 26 July, 1988

Bombay High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 5637 of 2009(Y) 1. K.K. SURENDRAN ... Petitioner Vs 1. STATE OF KERALA AND OTHERS ... Respondent For Petitioner :SRI.P.V.SURENDRANATH For Respondent : No Appearance The Hon'ble MR. Justice ANTONY DOMINIC Dated :20/02/2009 O R D E R ANTONY DOMINIC, J. ============== W.P.(C) NO. 5637 OF 2009 (Y) ==================== Dated this the 20th day of February, 2009 J U D G M E N T Petitioner submits that he is the registered owner of Omni Bus Bajaj Tempo Traveller, which was being used as a contract carriage. The permit expired and now the petitioner wants to use it as a private vehicle. For that purpose, he has made Exts.P2 and P5 applications before the 2nd respondent and orders have not been passed. It is with that grievance the writ petition is filed. 2. In view of the pendency of Exts.P2 and P5, I direct that the 2nd respondent shall pass orders on the same, as expeditiously as possible, at any rate within 6 weeks of production of a copy of this judgment. Orders shall be passed after issuing notice to the 3rd respondent. Writ petition is disposed of as above. ANTONY DOMINIC, JUDGE Rp 

K.K. Surendran vs State Of Kerala And Others on 20 February, 2009

Kerala High Court

Gujarat High Court Case Information System Print OJCA/242/2008 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL APPLICATION No. 242 of 2008 In TAX APPEAL No. 242 of 2008 ========================================================= COMMISSIONER- CENTRAL EXCISE AND CUSTOMS - Applicant(s) Versus ALEMBIC LTD. - Respondent(s) ========================================================= Appearance : MR HRIDAY BUCH for Appellant(s) : 1, MR SR DIXIT, Adv. with MR RC SAXENA, Adv. for M/S TRIVEDI & GUPTA for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE D.A.MEHTA and HON'BLE SMT. JUSTICE ABHILASHA KUMARI Date : 22/10/2008 ORAL ORDER(Per : HONOURABLE MR.JUSTICE D.A.MEHTA) In light of the order made in appeal, this Civil Application, having been rendered infructuous, is rejected accordingly. (D.A.Mehta, J.) (Smt.Abhilasha Kumari, J.) (sunil)     Top

Author: D.A.Mehta,&Nbsp;Honble Smt. Kumari,&Nbsp;

Commissioner vs Alembic on 22 October, 2008

Gujarat High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(Crl) No. 255 of 2007(S) 1. RAVEENDRAN B., ... Petitioner Vs 1. G. ASHOKAN, ... Respondent 2. THE SUB INSPECTOR OF POLICE, 3. THE COMMISSIONER OF POLICE, 4. THE DIRECTOR GENERAL OF POLICE, For Petitioner :SRI.GOPAKUMAR R.THALIYAL For Respondent :GOVERNMENT PLEADER The Hon'ble MR. Justice P.R.RAMAN The Hon'ble MR. Justice V.K.MOHANAN Dated :05/11/2007 O R D E R P.R.RAMAN & V.K.MOHANAN, JJ. ------------------------------- W.P.(Crl)NO.255 OF 2007 -------------------------------- Dated this the 5th day of November,2007 JUDGMENT Raman, J. The petitioner alleges that his son, Anil Kumar @ Ambily, was missing from 19/10/2007. On enquiry he came to know from the locality that his son fell in love with the lst respondent's daughter, Nayana, they have got married and they are residing together. However, he could not find out his son, though enquiries were made in places where he is likely to be found. A complaint made to the police is produced as Ext.P1. According to him, no effective steps are taken. 2. Pursuant to the notice issued, Anil Kumar @ Ambily as well as Nayana appeared before us. We interacted with them. Anil Kumar produced a certificate of marriage issued by the Marriage Officer under the Special Marriage Act, 1954, which shows that Anil Kumar and Nayana got married on 19/10/2007. Both of them stated that they are living together as husband and wife. We interacted with the petitioner as well. He stated that he came to know about their marriage from the public. In the light of the certificate of marriage produced and in view  -2- WP(Crl).No.255/2007 of the fact that both the petitioner's son and Nayana have attained majority and in view of their submission that they are not under the illegal custody of any body, the matter is closed. P.R.RAMAN, Judge. V.K.MOHANAN, Judge. kcv.

Raveendran B vs G. Ashokan on 5 November, 2007

Kerala High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C) No. 29685 of 2007(H) 1. BALAKRISHNAN P., AGED 45 YEARS, ... Petitioner 2. M.SURENDRAN, S/O.KUMARAN NAIR, Vs 1. THE DEPUTY DIRECTOR, LOCAL FUND AUDIT ... Respondent 2. THE SCHEDULED CASTES AND SCHEDULED 3. THE BLOCK DEVELOPMENT OFFICER, For Petitioner :SRI.P.SAMSUDIN For Respondent : No Appearance The Hon'ble MR. Justice ANTONY DOMINIC Dated :08/10/2007 O R D E R ANTONY DOMINIC, J. =============== W.P.(C) NO. 29685 OF 2007 H ==================== Dated this the 8th day of October, 2007 J U D G M E N T The claim of the petitioner is for disbursing the subsidy due to the Ghandhisadan Subsidized Hostel, Morayur. It is submitted that it is for the 3rd respondent to consider the claim. It was accordingly that the petitioner has submitted Ext.P4 representation before the 3rd respondent, which is stated to be pending before the said authority. 2. Taking into account the submissions made by both sides before me, I dispose of this writ petition directing that the 3rd respondent shall take up and consider Ext.P4, as expeditiously as possible, at any rate within six weeks of receipt of a copy of this judgment, if the said representation has been received and is pending. Writ petition is disposed of as above. ANTONY DOMINIC, JUDGE. Rp 

Balakrishnan P. vs The Deputy Director on 8 October, 2007

Kerala High Court

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 16.06.2009 CORAM THE HONOURABLE MR. JUSTICE K.K.SASIDHARAN C.R.P. No. 384 of 2009 and C.M.P.No.1 of 2009 V. Gowri Ammal .. Petitioner Versus 1. Veerasamy Reddiar 2. Perumal Reddiar .. Respondents The Civil Revision Petition has been filed under Article 227 of Constitution of India against the order dated 08.04.2008 made in I.A.No.79 of 2008 in O.S.No.276 of 2006 on the file of the District Munsif, Madurantakam. For Petitioner : M/s. M. Ramachandran For Respondents : Mr. N. Nagu Sah ORDER The unsuccessful petitioner in I.A.No.79 of 2008 in O.S.No.276 of 2006 on the file of the District Munsif Court, Madurantakam is the petitioner in this Civil Revision Petition. 2. The suit in O.S.No.276 of 2006 was preferred by the first respondent against the petitioner praying for a decree of declaration and consequential injunction in respect of the suit property. 3. In the plaint in O.S.No.276 of 2006, it was the case of the first respondent that originally the entire suit property in S.No.99/2 belonged to one Ayyappa Reddiar, s/o. Krishnappa Reddiar. The respondents are none other than the children of Krishnappa Reddiar. The said Ayyappa Reddiar had three sons namely Krishnaswamy Reddy, Veeraswami Reddy and Perumal Reddy and there was a partition in the family as evidenced by document dated 2.12.1959, in and by which the suit property was allotted to the share of the respondents. Even though the respondents have sold some of the items of property to the revision petitioner. However, the suit property was not the subject matter of such sale. During the year 2005, the revision petitioner requested the respondents to put up a small room of about 100 sq.ft in the suit property on undertaking to vacate as and when a demand to the effect was made by the respondents. Accordingly, such permission was granted. However, the revision petitioner refused to vacate the property in spite of revoking the permission by the respondents which made the first respondent to file the suit for declaration and recovery of possession. 4. The revision petitioner on appearance before the trial Court filed an application in I.A.No.79 of 2008 to reject the plaint. 5. In the affidavit filed in support of the application in IA.No.79 of 2008 it was the case of the petitioner that the suit property has been in his possession and enjoyment and the same was evident by the averments as contained in the plaint itself. According to the revision petitioner, there was no cause of action for the respondent to file a suit against her and as such the plaint has to be rejected. It was also the contention of the revision petitioner that the court fee paid was not correct and the first respondent had to pay the court fee on market value of the property. 6. The application was opposed by the first respondent by filing counter. 7. The trial Judge on a careful consideration of the matter rejected the application and aggrieved by the same the unsuccessful petitioner has filed this revision. 8. The petitioner has filed the application in I.A.No 79 of 2008 with a prayer to reject the plaint on the basis that the very prayer made in the suit to remove the superstructure clearly shows that the superstructure was built by him. According to the revision petitioner, there were no documents to substantiate the contentions raised in the plaint and as such the plaint was liable to be rejected. On a perusal of the affidavit filed in support of the Interlocutory Application, I am of the view that the averments as contained in the said affidavit is not sufficient to reject the plaint. It is for the parties to adduce evidence in support of their respective contentions and the plaint cannot be rejected at the threshold on the basis of the averments of the nature as contended in the affidavit filed by the revision petitioner. The question of payment of court fee is also an issue to be decided by the trial Court after giving opportunity to both the parties. The learned Judge has considered the issue in extenso and arrived at a correct conclusion that the application has to be rejected. I do not find any error or illegality in the said order warranting interference by this Court. 9. In the result, the Civil Revision Petition is dismissed. Consequently, connected Miscellaneous Petition is closed. However, there will be no orders as to costs. mra To The District Munsif Court, Madurantakam

V. Gowri Ammal vs Veerasamy Reddiar on 16 June, 2009

Madras High Court