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JUDGMENT Sat Pal, J. 1. This is an application filed on behalf of the plaintiffs under Section 151 CPC with permission to withdraw interest on the FDRs by way of maintenance of the plaintiffs. The case of the plaintiffs is that plaintiff No. 1 is the legally wedded wife of Late Shri Rajendra Prasad and plaintiffs No. 2 and 3 are the children born out of the wedding between Rajendra Prasad and the plaintiff No. 1. Defendant No. 1 is the mother of late Shri Rajendra Prasad and the defendant No. 2 is the daughter out of the wedding between Rajendra Prasad and one Smt. Sushila Devi. The case of the defendants is that there was legally no marriage between late Shri Rajendra Parsad and plaintiff No. 1 and as such the plaintiffs are not entitled to any relief whatsoever. 2. Mr. Saini, learned Counsel appearing on behalf of the plaintiffs has referred to a judgment of Bombay High Court reported in the case of Laxmibai Nagappa Matiwadar v. Laxmibai Nagappa Matiwadar, in support of the submissions made in the application. In this judgment, it was held by the Bombay High Court that even if the marriage between the parties is void, the children born out of such marriage are entitled to right in property of their parents. 3. I have heard the learned Counsel for the parties and I am of the view that it will be in the interest of justice that the amount of interest accrued on the FDRs mentioned in Annexure 2 annexed with the plaint should be divided between the plaintiffs on the one hand and defendants 1, 2 and Sushila Devi on the other hand. However, the share of the defendants should not be given to the defendants till an application is filed on behalf of the said persons and the same is heard and disposed of after affording proper opportunity to the plaintiffs. Accordingly, I direct that 50% of the amount of interest accrued on the aforesaid FDRs be paid to the plaintiff No. 1 for her own maintenance as well as for the maintenance of her two children who are plaintiffs No. 2 and 3 and the balance 50% of the amount of interest be remitted to the Registrar of this Court by way of bank draft and the learned Registrar is directed to keep that amount in the shape of FOR for the period of one year. With this order I. A. stands disposed of. dusty.

Author: S Pal

Shakuntala Sharma And Ors. vs Maya Devi And Ors. on 10 December, 1993

Delhi High Court

Gujarat High Court Case Information System Print CA/8119/2010 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL APPLICATION - FOR AMENDMENT No. 8119 of 2010 In SPECIAL CIVIL APPLICATION No. 1399 of 2010 ========================================================= SURESHBHAI NAUTAMLAL KUBAWAT - Petitioner(s) Versus DHIREN RASIKLAL KUBAWAT P.O.A HOLDER OF RESP NO.2 & 1 - Respondent(s) ========================================================= Appearance : MR AM MEHTA for Petitioner(s) : 1, MR SP MAJMUDAR for Respondent(s) : 1 - 2. ========================================================= CORAM : HONOURABLE MR.JUSTICE K.M.THAKER Date : 27/09/2010 ORAL ORDER Rule returnable on 4th October, 2010. Mr.S.P.Majmudar, learned advocate, waives service of rule on behalf of the respondents. To be listed amongst first 10 matters in 1st Board. (K.M.THAKER, J.) (ashish)     Top

Author: K.M.Thaker,&Nbsp;

Sureshbhai vs Dhiren on 27 September, 2010

Gujarat High Court

JUDGMENT S.U. Khan, J. 1. Hari Mohan Kichlu, landlord-petitioner in both the writ petitions filed two release applications under Section 21 of U.P. Rent Control Act (U.P. Act No. 13 of 1972) hereinafter referred to as Act, against two tenants. One application was filed against Ramesh Chandra, respondent No. 2 in the first writ petition and the other application was filed against Hari Krishna Gupta, respondent No. 2 in the second writ petition. Release applications against Ramesh Chandra and Hari Krishna Gupta were registered as P.A. Case No. 18 of 1987 and P.A. Case No. 17 of 1987 respectively on the file of Prescribed Authority/III-Addl. Civil Judge, Muzaffarnagar. The release applications were allowed on 8.8.1990. Against the said decisions Ramesh Chandra and Hari Krishna Gupta tenants filed two appeals under Section 22 of the Act being R.C. Appeal No. 46 of 1990 and R.C. Appeal No. 47 of 1990. Appeals were allowed through judgment dated 14.8.1991 by VIIIth Addl. District Judge, Muzaffarnagar, against which these writ petitions are directed. 2. The accommodations in tenancy occupation of both the tenants are adjacent to each other and are parts of the same building/Kothi. 3. In the release applications it was stated that the accommodations in dispute along with other properties fell in the share of landlord petitioner under family partition which was recognised by a compromise decree passed in O.S. No. 209 of 1985 ; that landlord was serving as Joint Director (Farms) in Animal Husbandry Department of Government of U.P., that landlord would be retiring on 31.12.1987 and after retirement he intended to settle at Muzaffarnagar and reside in the accommodation in dispute. Through amendment it was added in the release applications that landlord had retired on 31.12.1987 and vacated on 14.3.1988 the Government house, which had been given to him by Government at Lucknow. It was also pleaded that Ramesh Chandra had constructed his own house and had shifted therein. It was also pleaded that the family of the landlord consisted of himself, his wife and three sons and one of the sons had got a job in Muzaffarnagar and was of marriageable age and the other sons would also reach to marriageable age after sometimes. Ramesh Chandra admitted that he had purchased an Ahata from the brother of the landlord and made construction thereupon after spending a lot of money. Ramesh Chandra further pleaded that in the said ahata landlord/applicant Hari Mohan Kichlu was also co-sharer, hence he requested him to execute the sale deed of his share. The partition was also denied and it was asserted by the tenant that the same was sham and fictitious and had been effected only for evicting the tenant. 4. In the release applications it was stated that after getting possession of the accommodation in dispute petitioner would get the same renovated, according to his own taste and desire. On the basis of this assertion it was argued on behalf of the tenants that the release applications were filed under Section 21(1) (b) of the Act, hence fulfilment of requirement of Rule 17 was essential which was not done. In my opinion the argument was quite misconceived. The application was not under Section 21 (1) (b) of the Act. There was no allegation in the application that the tenanted accommodation was in dilapidated condition. 5. The release application had been filed by Mohan Kichlu, real brother of petitioner landlord Hari Mohan Kichlu as his attorney. Hari Mohan Kichlu had executed power of attorney in favour of his brother Mohan Kichlu. There is nothing wrong in filing release application through attorney. 6. One of the points raised before the courts below was regarding the provision under which release application should be treated to have been filed, i.e. whether Section 21 (1) (a), bona fide need, or under Section 21 (1A) on the ground of retirement from Government service and vacation of Government house after retirement. It is admitted that in the building/kothi of which both the tenanted portions are parts, landlord has got two rooms in his actual possession. The prescribed authority held that as there was no latrine, bathroom and kitchen etc. in actual possession of the landlord in the said building/kothi, hence the two rooms available to the landlord could not disentitle him from getting the tenanted accommodation released under Section 21 (1A) of the Act. The appellate court in this regard differed with the prescribed authority and held that due to availability of the said two rooms applications under Section 21 (1A) of the Act were not maintainable (the landlord's case was that in one of the two rooms he had stored his household goods and the other room was used for storing fodder for cow). The landlord had further asserted that after retirement and vacation of the Government accommodation he started residing in a tenanted house belonging to Dr. Ramesh Hari at Lucknow which was later on got vacated by the landlord Ramesh Hari and thereafter he started residing along with his son Atul Kichlu at Lucknow. The tenant pleaded that the house at Lucknow alleged to be of Atul Kichlu was in fact of landlord himself, as Atul Kichlu had no means to purchase or construct the house. Lower appellate court accepted the version of the tenant and held that landlord was not entitled to the benefit of Section 21 (1A) of the Act. 7. Regarding merit of release application under Section 21 (1) (a) of the Act, the appellate court disagreed with the prescribed authority and held that the landlord failed to prove his bona fide need and that comparative hardship also lay in favour of the tenants. The lower appellate court held that the house at Lucknow was purchased and constructed by the landlord benami in the name of his son Atul Kichlu and the transaction was hit by the provision of Benami Transaction Prohibition Act. The lower appellate court held that even if the son of the landlord was held to be owner of the house at Lucknow still as landlord was residing therein, hence his need for the house in dispute which is situate at Muzaffarnagar was not bona fide. The lower appellate court also held that the landlord was carrying on the profession of veterinary Doctor from his (or his son's) house at Lucknow, hence he did not intend to shift and to settle at Muzaffarnagar. 8. In my opinion the lower appellate court committed error of law in holding that landlord failed to establish his bona fide need. Even if the house at Lucknow is held to belong to the landlord still he has got right to settle at Muzaffarnagar, his ancestral town, after retirement. The landlord cannot be dictated by the tenant to reside along with his son and son's family. 9. Supreme Court in the authority of Sarla Ahuja v. United India Insurance Company, AIR 1999 SC 100, while interpreting Section 14 (1) (e) of Delhi Rent Control Act which provides for eviction of tenant on the ground of bona fide need of landlord has held that if a landlord has got a house in the same city then his need may not be bona fide. However, "To deprive a landlord of the benefit of the ground mentioned in Section 14 (1) (e} on account of availability of alternative residential accommodation, it is not enough that such alternative accommodation is in a far different State. Such accommodation must be available in the same city or town or at least within reasonable proximity thereof, if it is outside the limits of the city." (Para 13) 10. Regarding residence of a parent with son or daughter-in-law it has been held in the same authority in para 15 that : "15. Facts such as the cordial relationship between landlord and her daughter-in-law or that he is comfortably residing in the present building are not relevant in judging the bona fides of the claim of the landlord. Otherwise it would appear that landlord can think of residing in his other own residential building only when cracks develop in the relationship between him and his other kith and kin." 11. From the above it is quite clear that landlord fully proved his bona fide need and the application was maintainable under both the provisions, i.e., Sections 21 (1) (a) and 21 (1A). 12. The tenant expressed the apprehension that after getting the accommodation in dispute vacated, landlord would not shift therein. Sufficient safeguard in the form of right of re-entry has been provided for such contingencies under Section 24 of the Act. 13. It was stated by landlord that his family consisted of himself, his wife and three sons. It has come in evidence that one of the sons has constructed a house at Lucknow and one of the other sons is in service and posted outside Muzaffarnagar. Therefore, the family of the landlord for which need was to be considered consisted of three members. Two rooms (or one room and one kothari) are admittedly in possession of the landlord in building/kothi of which accommodations in dispute are parts. On the other hand landlord having retired from the post of Deputy Director enjoys a certain status and he requires good accommodation to live comfortably according to his status. Ramesh Chandra tenant respondent No. 2 in the first writ petition has purchased considerable accommodation [ahata] from landlord's brother and has made lot of constructions therein. 14. According to the said tenant he has constructed two big rooms which he is using as godowns and several small rooms which are also being used for purposes connected with business of ata chakki. He has not stated that these big and small rooms are incapable of being used for residential purposes. The lower appellate court was unnecessarily swayed by their actual use. Even if allegation of tenant in this regard is accepted still he can legally be asked to use some of these rooms for residential purpose in order to make room for the landlord in the tenanted accommodation in dispute. 15. The prescribed authority did not consider whether allowing the release application against only one of the tenants could satisfy the need of the landlord or not. Both the release applications having been filed simultaneously ought to have been consolidated and decided by a common judgment by the Prescribed Authority. Regarding tenant respondent No. 2 in the second writ petition, H. K. Gupta no evidence was led by landlord to show that he had any other accommodation available. 16. In view of the above, the appropriate order, which could be passed, was to release the accommodation in possession of tenant Ramesh Chandra and to reject the release application regarding the other tenant H. K. Gupta. 17. Accordingly first writ petition is allowed. 18. Order of the appellate court passed in R.C. Appeal No. 46 of 1990 dated 14.8.1991 is set aside and the order passed by prescribed authority dated 8.8.1990 in P.A. Case No. 18 of 1987 is restored. Ramesh Chandra tenant respondent No. 2 in the first writ petition is granted time till 31.3.2005 to vacate provided that within one month from today he files an undertaking before the prescribed authority to the effect that on or before 31.3.2005 he will willingly vacate and hand over the possession of the property in dispute to the landlord. 19. The second writ petition is dismissed. 20. However, I have held in an authority in Khurshida v. ADJ, 2004 (1) AWC 851 : 2004 (2) ARC 64, that writ court while granting relief to tenant under Rent Control Act, can enhance the rent to a reasonable extent. Same power can be exercised while dismissing the writ petition of the landlord because while doing so the writ court approves the protection granted to the tenant by the court/courts below against unreasonable eviction by virtue of Rent Control Act. In the instant case the tenant is in possession of the premises in dispute for a very long time. The rate of rent is either Rs. 120 (as asserted by landlord) or Rs. 60 (as asserted by the tenant). The building is situated in Muzaffarnagar an important city of western U.P. situate at a distance of only about 100 km. from Capital of India. In my opinion, therefore, tenant must pay Rs. 1,200 per month rent. Even this rent will be far less than the rent for which today the accommodation in dispute may be let out. 21. Accordingly while dismissing the second writ petition it is directed that the tenant H. K. Gupta shall pay rent to the landlord with effect from September 2004 onwards at the rate of Rs. 1,200 per month.

Author: S Khan

Hari Mohan Kichlu vs Viiith A.D.J. And Ors. on 21 September, 2004

Allahabad High Court

Gujarat High Court Case Information System Print CA/6289/2009 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL APPLICATION - FOR CONDONATION OF DELAY No. 6289 of 2009 In LETTERS PATENT APPEAL (STAMP NUMBER) No. 1260 of 2009 In SPECIAL CIVIL APPLICATION No. 13618 of 2008 ========================================= RAMESHKUMAR AMBALAL PRAJAPATI Versus STATE OF GUJARAT AND OTHERS =========================================Appearance : MR NK MAJMUDAR for the Applicant MR PRANAV DAVE, ASSTT GOVERNMENT PLEADER for the Respondents ========================================= CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE BANKIM.N.MEHTA Date : 13/01/2010 ORAL ORDER(Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) For the reasons stated in the application, delay is condoned. Rule is made absolute. (BHAGWATI PRASAD, J.) (BANKIM N. MEHTA, J.) omkar     Top

Author: Bhagwati Prasad,&Nbsp;Honourable Bankim.N.Mehta,&Nbsp;

Appearance vs Mr on 13 January, 2010

Gujarat High Court

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Het Ram vs State Of U.P. on 25 August, 2010

Allahabad High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA CR. REV. No.13 of 2011 CHHOTU CHOUDHARY ...PETITIONER Versus THE STATE OF BIHAR ...OPPOSITE PARTY ----------- 03. 23.02.2011 Heard both sides. The petitioner, who has been declared juvenile in conflict with law, is aggrieved by the appellate order dated 5/4.11.2010 passed by learned Sessions Judge, Patna in Cr. Appeal No. 216 of 2010, whereby his prayer for bail has been considered and rejected. The petitioner is facing charge under sections 302/34 IPC. Two sons of the informant have been done to death. Three persons including the petitioner have been named in the FIR. Learned counsel for the petitioner submits that there is no criminal antecedent of the petitioner and that he is in custody/remand home since 07.05.2010. It is submitted that father of the petitioner will monitor the petitioner and keep guard against any possible criminal activity of his son if released on bail. Learned APP, on the other hand, supported the impugned order. Learned appellate court while rejecting the appeal held as under: This Court from the prosecution case also finds that the petitioner was found in association with other persons who had criminal antecedents. This Court, therefore, agreeing with the view taken by the appellate court, rejects his prayer for bail. However, considering the report submitted by the probation Officer placed at Flag A and the fact that the petitioner is in custody/remand home since 07.05.2010, this Court observes that if the trial of the petitioner is not taken up and registers adequate progress within (06) six months from the date of receipt/production of a copy of this order, the petitioner shall have liberty to renew his prayer for bail in the court below itself which shall be considered and disposed of in accordance with law uninfluenced by the present order. ( Kishore K. Mandal ) hr

Chhotu Choudhary vs The State Of Bihar on 23 February, 2011

Patna High Court - Orders

In the High Court of Punjab & Haryana at Chandigarh FAO No. 1307 of 1996 (O&M) Union of India ... Appellant vs Gursachan Singh Grewal and others .... RespondentsCoram: Hon'ble Mr. Justice Rajesh Bindal Present: Mr. S. K. Sharma, Advocate, for Union of India. None for the respondents. Rajesh Bindal J. 14.12.2009 ( Rajesh Bindal) vs. Judge This appeal has been filed by the Union of India seeking reduction of compensation for the acquired land. Briefly, the facts are that land situated in village Daba, Tehsil and District Ludhiana was acquired by the Government of India for defence purpose, namely Dholewal Complex. The landowners feeling dissatisfied filed petitions under the Requisitioning and Acquisition of Immovable Property Act, 1952, for determination of compensation. The learned court below was appointed as Arbitrator, who determined the compensation payable to the landowners @ Rs. 140/- per square yard. The Union of India is in appeal against the award of the Arbitrator. Learned counsel for the appellant fairly submitted that the issue involved in the present appeal is squarely covered by the judgment of this court in Dr. Jagdish Parkash vs The Competent Authority Powers of Special Land Acquisition Collector, Jalandhar 2006 (4) RCR (Civil) 711, whereby award of the Arbitrator was upheld in the appeal by the Union of India whereas some relief was granted to the landowners. For the reasons recorded in Dr. Jagdish Parkash's case (supra), the present appeal is disposed of in the same terms.

Union Of India vs Gursachan Singh Grewal And Others on 14 December, 2009

Punjab-Haryana High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA MJC No.1862 of 2011 RAM PRASAD MISTRI, SON OF BAIJNATH MISTRI RESIDENT OF VILALGE BATASPUR P.S. CHANDAUTI, DIST. GAYA. Versus 1. THE STATE OF BIHAR THROUGH SECRETRY ENERGY DEPARTMENT, BIHAR PATNA. 2. PRABHAT KUMAR RAI, CHAIRMAN, B.S.E.B, VIDUT BHAWAN, BAILEY ROAD, PATNA. ----------- 03. 29.09.2011 In view of the statement made in the show cause, the contempt petition is disposed of. ( V.N. Sinha, J.) Rajesh/

Ram Pd. Mistri vs The State Of Bihar & Ors on 29 September, 2011

Patna High Court - Orders

.;. IN THE HIGH coum OF KARNATAKA AT BANGAL05§E' % DATED THIS THE 23*" may or AU6U$T,~'2:'€3G3:A:VV: BEFORE & THE HON'BLE msuswxce M¢HA§€V..S¥%2§NTa§?si_d.%£*GUé;§§~ k CRIMINAL 9ETI1i<3m;o.241s/'2o"gi_a; k BETWEEN: Santhesh Achary ; Aged 42 ycars _ ' S]o.E3haska1'aAcVha3:_'y' ' _ I3/at.Acha1}'a . 'V Near Lakshmi V Yarmal, Uchiiflfl 'Q ' . ._ V Udupi _ PETFFIQNER (By Sh.-etAt§f, A' ..... % s1.a};.~':=' af":x:§1 By"3ub-'in$pcc§c)r of Poiice Rum} Police Station -V .. RESPONEENT ' H " " 3 4." ' = sn Afiflamaimshna, HCGP) This Cri.P. is {fled undttr Section 482 of C11'. RC. by the advecate for the petitioner praying that this I~ion'b1c Comt ,3, may be pleased is BBGW this petzitiozcl. and set asigh?._ <3-f issuance of summons against the petiti0ner--~, :{3: the? V' 4_ of Add1.Civi1 Judge (Jr.[):{1.} mg" >JMF{:_;.. %_ ';; m::a1a_ in "A C-C.N0.4?'3f{}'?' along with FIR and petitinner is concerned. This Cri.P. cxtrming on "admiS$im'i', d%«' the Court made. the f011oWing;.-- He:-2r'§:i». on behalf of the §)6: fiti{}F1€E;V ;éu':d Government Pleader and perused VmVa?:e:".ié:3'. = A" A to: be registered against the fer the ofiences punishabie under find (iii) of thé Iiarnataka Ptzsiioe Act an thti "'al1¢ga%,i€;f1 that he has Engaged A1 to (DQ116013 money and T. «' 'iséfiumg {:hits for 3:'1_11ming Matka Jugari. \(J3 .3" 3. The contents of that conztplaint when Al was arrested, he gave the_ M petitioner as the person Except this there is 119 Gther maizjrial p0iJ:ii_i:"i1g"o1i}t. *' guilt against this petitioner. 4. It is Wei} E. _ '~5taten1§?:Iit 91' 1:116 information given by <:0--a(:.xcused is a weak {:*».r.idc1i:_:é'aI;£d..Sijt:i1"evid6:nce catizmt be the it: _ 5.. The k1e=.§;1;::TJee% _::"'c§m1se1 for the pefitisnar in support vc5sefhfi's§' relied "Ll}I}()}f1 a decision reperted 496 (Bandlamuddi &tchuta M 1' 48»; vs. State of Andhra Pradesh). 6; regard to tha principles iaid dawn by the ..ap€xz€30;urt in the judgmelit cited supra, the pz'c)<:€:€:diI1gs as this petsitiener, 1.6., A2 is concerned, are fiuashed and the proceedings slkdi pI'()C€€Ei against A}. V A<:cordiI1g1y, this criminai petiticri: quashing the proceedings {:.,his V

Author: Mohan Shantanagoudar

Santhosh Achary S/O Bhaskara ... vs State Of Karnataka By Sub ... on 28 August, 2008

Karnataka High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.28248 of 2011 Binod Chaudhary son of late Vishwanath Chaudhary, resident of Mohalla-Sahebganj, Sonar Patti (Khanua), P.S.-Chapra (Town), District-Saran at Chapra. Versus 1.The State of Bihar 2.Rita Devi wife of Binod Chaudhary, Resident of Mohalla-Shashtri Nagar, P.S.- Siwan (Town), District- Siwan ----------- Md.S. ( Ashwani Kumar Singh, J.) 2. 24.8.2011. Heard learned counsel for the petitioner and learned counsel for the State. The petitioner apprehends his arrest in connection with a case in which cognizance has been taken for the offence punishable under sections 498(A)/34 of the Indian Penal Code. It is submitted on behalf of the petitioner that admittedly marriage had taken place in May, 1997 and the complaint has been filed on 29.6.2010. It is also submitted that there is no truth behind the allegation of subjecting the complainant to cruelty for non- fulfillment of dowry. The story of demanding money after several years of marriage as dowry is highly improbable. It is further submitted that the complainant out of her own will abandoned her matrimonial home. Taking into consideration the nature of allegation as also the fact that the case arises out of a complaint let the petitioner, namely, Binod Chaudhary, in the event of his arrest or surrender before the court below within a period of four weeks from the date of receipt/communication of the order be released on bail on furnishing bail bonds of Rs.5,000/- (five thousand) with two sureties 2 of the like amount each to the satisfaction of S.D.J.M., Siwan in connection with Complaint Case No.1540 of 2010 subject to the conditions as laid down under section 438(2) of the Code of Criminal Procedure.

Binod Chaudhary vs The State Of Bihar & Anr on 24 August, 2011

Patna High Court - Orders

JUDGMENT Shaphard, J. 1. The only question argued was whether the maintenance of the suit was precluded by the provisions of Section 244 of the Civil Procedure Code by reason of the plaintiff and the defendants having been parties to a prior suit. As far as the plaintiff is concerned, there can be no doubt that, although it is in the character of purchaser at the sale in execution of her decree that he now brings the suit to secure possession of the lands sold to her, she is, nevertheless, a party to the suit in which the decree was obtained within the meaning of Section 244 of the Civil Procedure Code. The defendants, also having been defendants in the prior suit, are parties to that suit, and none the less so, because ultimately it was as against them dismissed, while as against their co-defendants, who did not appeal, the decree in the plaintiff's favour remained standing. But, although both the plaintiff and the defendants are parties to the former suit, I do not think that the question now raised is one " arising between the parties to the suit in which the decree was passed and relating to the execution, discharge or satisfaction of the decree" within the meaning of the Section. As between the plaintiff and the defendants no such question can arise, because there is no decree against the defendants to be executed, discharged or satisfied. They are not judgment-debtors of the plaintiff. No doubt the present suit is occasioned by the decree-holder's desire to give effect to his decree, and may be said to arise out of the execution of his decree. But in my opinion, regard being had to the language of the Section, a question relating to the execution of the decree presupposes a person against whom execution is sought and cannot arise as between the decree-holder and persons who, as far as concerns execution, are complete strangers. In the present case the defendants were dismissed from the prior suit on appeal. But a much stronger case might be put to illustrate the inconvenience of giving a larger operation to the Section. For instance in a suit against two defendants the plaintiff might withdraw the suit against one with or without liberty to bring a fresh suit and obtain a decree against the other. The defendant against whom the suit was withdrawn would of course be a party to the suit in which the decree was passed. But he would have no concern in the execution of the decree, and in my opinion no question relating to the execution could arise between him and the decree-holder. If it be correct to say that the object of the Section is to put a limit to litigation and prevent one suit growing out of another, it is' clear that in such a case as the one put the Section ought not to be applicable. It cannot have been intended to prohibit suits between persons as between whom no adjudication in respect of their right has as yet taken place. 2. In my opinion the District Judge was right in the conclusion at which he arrived, and therefore the appeal should be dismissed with costs. Wilkinson, J. 3. I am of the same opinion. The question is not, as the District Judge puts it, whether the present suit is a part of the execution proceedings, but whether, within the meaning of Section 244, Civil Procedure Code, the plaintiff and defendants were parties to the suit in which the decree was passed. In one sense no doubt they were so, and the defendants having been allotted their costs in appeal, are or were entitled to take out execution of the decree. But the question at issue between the parties in the present suit is not one relating to the execution, discharge or satisfaction of the decree in that suit. The defendants are not, with reference to the subject-matter of the present suit, judgment-debtors, but occupy the position of third parties, who, being in possession of the land for which the plaintiff has obtained a decree, obstruct delivery to her. If the provisions of Section 244 applied, it must be held that the plaintiff could execute her decree as against the defendant. But if the plaintiff were to take out execution proceedings against the defendants, she would be met by the plea that there is no decree to be executed, the decree so far as the defendants were concerned having been quashed. None of the cases quoted in argument apply. In Viraraghava v. Venkata I.L.R., 5 Mad., 217 the parties were parties to the suit in which the decree was passed. In Vallabhan v. Pangunni I.L.R. 12 Mad., 454 the parties were the decree-holder and the judgment-debtor, and in Muttia v. Appasami I.L.R., 13 Mad., 504 the question was one relating to the execution of the decree between the representative of the original decree-holder and one of the judgment-debtors, the decree-holder having become, as the plaintiff in this case has, the purchaser of the property. The present defendants cannot, in my opinion, be regarded as occupying any one of these positions. The second appeal fails and is dismissed with costs.

Author: Shaphard

Nagamuthu And Ors. vs Savarimuthu on 15 December, 1891

Madras High Court

Court No. - 22 Case :- CONTEMPT No. - 358 of 2009 Petitioner :- Smt. Anjum Farooqi Respondent :- Shri G.P. Kushwaha,Chief Medical Officer,Sultanpur Petitioner Counsel :- M.S. Siddiqui Respondent Counsel :- C.S.C. Hon'ble Satyendra Singh Chauhan,J. Learned Standing Counsel states that at the moment he has got no instructions as to what decision has been taken by the State Government in the matter as directed by this Court. List on 22.1.2010 to enable Standing Counsel to seek instructions in this regard. Order Date :- 8.1.2010 Rao/-

Smt. Anjum Farooqi vs Shri G.P. Kushwaha,Chief Medical ... on 8 January, 2010

Allahabad High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.31452 of 2010 SHOBHA KUMARI Versus THE STATE OF BIHAR & ANR ----------- B.Kr. ( Dharnidhar Jha, J.) 2. 25.8.2010. Having heard Sri Umakant Prasad, learned counsel appearing for the petitioner and after having perused the two impugned orders passed by the learned Magistrate and the learned Sessions Judge, I do not find any necessity to interfere with the order. The petition is dismissed as of no merit. The petitioner may raise the issues before the trial court after conclusion of the trial.

Shobha Kumari vs The State Of Bihar &Amp; Anr on 25 August, 2010

Patna High Court - Orders

[Section 38(1)] [Section 38] [Complete Act]

Central Government Act

S. No. Name of the promotee officer Date of retirement 1. Shri M. Satyanarayana Rao (92) 31.01.2002 2. Shri C.V. Seshagiri Rao (94) 30.09.2002 3. Shri K.S.N. Murthy (80) 31.10.2002 4. Shri G. Alfred (80) 30.11.2002 S. No. Name of the promotee officer Date of retirement 1. Shri P. Kishan Rao IPS (94) 31.3.2003 2. Shri R. Sitarama Rao, IPS (80) 30.8.2003 3. Shri P. Babji, IPS (80) 30.9.2003 ORDER M. Jayaraman, Member (Admn.) 1. Heard Dr. (Shri) K. Lakshmi Narasimha, learned Counsel for the applicant; Shri G. Jaya Prakash Babu, learned Senior Standing Counsel for the respondents 1 and 2; Shri B.N. Sarma, learned standing counsel for the respondents No. 3; Shri D.Y. Setti, learned special counsel for the State of Andhra Pradesh (Respondents 4 to 6) and Shri P. Bhaskar, learned Counsel for the Respondents 7, 8, 10, 12 and 17. None appeared for the remaining private respondents. 2. The present OA has been filed with the following prayer: (a) To declare the Sub-regulation (3) of Regulation No. 5 of the Indian Police Service (Appointment by Promotion) Regulation 1955 as illegal, arbitrary and violative of Articles 14, 16 and 21 of Constitution of India and consequently quash the same as such, and consequently, (b) declare that the applicant is entitled to be considered for vacancies meant for 2004 and also for future vacancies without reference to his attaining the age of 54 years, and consequently, (c) direct the respondents to consider the name of the applicant for promotion under the above Regulations for all vacancies meant for 2003, 2004 and further vacancies meant subsequently without reference to his attaining the age of 54 years, and consequently, (d) direct the respondents to appoint the applicant to the cadre of IPS under the above Regulations, and consequently, (e) Call for the records pertaining to Government of India, Ministry of Home Affairs, Notification No. 1-14/11/12/2004 IPS.I, dated 11.7.2005 pertaining to Select List of State Police Service Officers for appointment to the IPS by promotion for the years 2003 and 2004 republished in G.O.Rt No. 4403 GAD (SC.C) Department dated 11.7.2005 issued by the State of Andhra Pradesh and quash the same as illegal, arbitrary and contrary to rules. 3. The brief facts of the case are that the applicant, an ST category officer, was appointed to the post of Deputy Superintendent of Police Grade-II on 7.9.1987. Later on, he was promoted as Additional Superintendent of Police in 1997 and further as Superintendent of Police Non-cadre in 2002. At present, he is working as Superintendent of Police, CID since December 2002 onwards. The next promotion of such State Police Officers is by way of conferment of Indian Police Service. For this purpose, Union of India issues notification and then selection process starts. The applicant was eligible to be promoted as IPS officer for the year 2003. The promotion of such state officers to IPS is governed by the Indian Police Service (Appointment by Promotion) Regulations 1955 as amended from time to time. The last DPC held for selection of officers was for the year 2002. There was no DPC held during the years 2003 and 2004. The next DPC had met during 2005 between February and March 2005 for selecting the candidates for the years 2003 and 2004. For this purpose, the official respondents had taken into account four vacancies for 2003 and seven vacancies for 2004. The applicant's seniority is at Sl. No. 14. As per rules, the zone of consideration is three times the number of vacancies. Accordingly, the respondents have taken only 12 candidates (four vacancies x three times) for the year 2003 and so the applicant was not considered and for the second year viz., 2004 though they have taken 21 candidates (seven vacancies x three times), the applicant was not considered because he had attained the age of 54 years in October 2003. [His name was not considered for the next year since the candidates who have attained the age of 54 years as on 1.1.2003 would be debarred.] According to the applicant, the respondents have wrongly taken the vacancies as four and seven for the years 2003 and 2004, whereas they ought to have taken eleven vacancies for the year 2003, in which case, he would have been within the consideration zone. Accordingly, he has filed the present OA with the prayer as above. 4. The applicant has filed this OA mainly on the following grounds: (a) Calculation of vacancies meant for the year 2003 should be seven and not four. The respondents have wrongly calculated the vacancies as done by them by ignoring the mandatory provisions of law by counting the vacancies meant for 2003 as that of 2004. (b) The main plea of the applicant is that the Sub-clause (3) of Regulation 5 of Indian Police Service (Appointment by Promotion) Regulations 1955 is wholly arbitrary and unconstitutional. According to this sub-clause, persons who have attained the age of 54 years on the first day of January of the year in which the DPC meets, will not be considered for promotion. The above restriction of 54 years was substituted by the DoP&T Notification dated 5.10.1979 when the retirement age of All India Service personnel was 55 years and so there could be no relevance in restricting the age of 54 years for consideration for promotion to IPS since the present retirement age is 60 years. The restriction of the age of 54 years embarked upon for non consideration at the age of 54 years has no relevance and has no nexus with the objective sought to be achieved. The applicant's plea is that the impugned Regulation is bad in law and should be quashed. (c) The applicant's plea is that every person has a right to be considered for promotion which is a fundamental right guaranteed under Articles 14 and 16 of the Constitution of India. Exclusion at the age of 54 years for consideration for promotion is hit by these articles and the above rule is violative of the Constitution and deserves to be struck down as such. 5. The Respondents 1 and 2 viz., Union of India and the Secretary, Ministry of Home Affairs, have filed a detailed reply opposing the above contentions of the applicant. It has been stated that the present case relates to the recruitment by promotion from the State Police Service Officers to the Indian Police Service (IPS). The appointment from the State Police Service to IPS is solely governed by and made under the Indian Police Service (Appointment by Promotion) Regulations, 1955 as amended from time to time. It is envisaged that the State Government, UPSC and the Central Government would play distinct roles with the specific mandates in the process of preparation of the select list of State Police Service officers for promotion to the Indian Police Service, right from the stage of drawing the list of eligible officers by the State Government to finally making appointments to the service from the select list by the Central Government. The State Government has the exclusive role in regard to drawing of the consideration zone of the eligible State Police Service officers to be placed before the Selection Committee in terms of seniority of these officers in the State Police Service and UPSC is wholly concerned with reference to the select list prepared and approved under Regulation 7(3) of the said Regulations on the basis of the grading made by the Selection Committee with the aid of the observations of the State and the Central Government. It is the Central Government which is entirely concerned for making appointments from the select list on the recommendations of the State Government in the order in which the names of the Members of the State Police Service appeared in the select list for the time being in force during its validity period. 6. It is further stated that the State Government being the sole custodian of service records of State Police Service officers is required to furnish a proposal for convening the meeting of the selection committee along with the list of eligible State Police Service officers and their service records, integrity certificate etc., direct to the Union Public Service Commission for consideration of the eligible officers for inclusion in the select list for their subsequent appointment by promotion to the IPS. The Commission, scrutinizes the proposal/records and fixes a meeting of the selection committee. The Central Government nominates its representative on the selection committee as and when the Commission fixes the meeting. The list prepared by the selection committee is finally approved by the UPSC and forms the select list. Lastly, in terms of Regulation 9(1) of IPS (Appointment by Promotion) Regulations, 1955, appointment to the IPS of such Members of the State Police Service who are included unconditionally in the select list approved by the UPSC, is made by the Central Government on the recommendations of the State Government in the order in which their names appear in the select list for the time being in force during its validity period. 7. Coming to the specific grievance of the applicant in the subject case, the respondents 1 and 2 have stated that in the case of Andhra Pradesh, the last select list from which appointments by promotion to the IPS were made, was in the year 2002. For initiating the process of recruitment by promotion to IPS of Andhra Pradesh during 2003, it was observed that as per the information furnished by the State of Andhra Pradesh, 55 promotee IPS officers were in position in the State IPS cadre against the promotion quota of 59 as on 1.1.2003. The State Government attributed the availability of four vacancies due to retirement of four promotee IPS officers viz., S/Shri M. Satyanarayana Rao, IPS (SPS : 92 - w.e.f. 31.1.2002), C.V. Seshagiri Rao, IPS (SPS : 80 w.e.f. 30.09.2002), K.S.N. Murthy, IPS (SPS : 80 W.E.F. 31.10.2002) and G. Alfred, IPS (SPS : 80 w.e.f. 30.11.2002). Therefore, four vacancies were determined for preparation of the select list of 2003 in terms of Regulation 5(1) of the IPS (Appointment by Promotion) Regulations, 1955. However, the selection committee meeting for preparing 2003 select list against the four vacancies could not be held in view of the order dated 21.2.2003 passed by this Hon'ble Tribunal in OA Nos.1004/2002 and batch and the order dated 7.8.2003 passed by the Hon'ble Andhra Pradesh High Court in W.P. No. 6457/2003 and batch. In the above cases, this Hon'ble Tribunal had directed to review the select list already prepared for the year 2002. While confirming this Hon'ble Tribunal's order, the Hon'ble High Court had directed the official respondents not to proceed with the preparation of 2003 select list till the entire process of review of 2002 select list was completed. UPSC filed a review petition in the High Court and failed to obtain suitable order from the Hon'ble High Court. Therefore, UPSC had filed an SLP in the Hon'ble Supreme Court against the order of the Hon'ble High Court. 8. In the meanwhile, as the year 2004 commenced, in terms of the proviso to Regulation 5(1)(b) of the IPS (Appointment by Promotion) Regulations, year-wise select lists of 2003 and 2004 were to be prepared as no meeting of selection committee could be convened during 2003. It was observed that the promotion quota of IPS A.P. Cadre as on 1.1.2004 was 63 against which the State Government had reported that 52 promotee IPS officers were in position. Since out of 11 vacancies thus available, four had already been earmarked for preparation of 2003 select list, seven vacancies were determined for preparation of the selection list of 2004. Subsequently, the Hon'ble Supreme Court, vide interim order dated 9.12.2004 passed in the SLPs filed by the Commission, directed the respondents to proceed with the preparation of the select lists after 2002 and to keep the recommendations in a sealed cover to be opened before it. In pursuance of these orders, the meeting of the selection committee to prepare the year-wise select lists of 2003 and 2004 was convened by the UPSC on 4th and 5th February 2005. Thus, in the view of the respondents 1 and 2, there is no merit in the submissions made by the applicant and so the OA should be dismissed. Since the interim order dated 28.1.2005 was passed by this Hon'ble Tribunal not to declare the outcome of the select committee meeting held on 4th and 5th February 2005 for preparation of the year-wise select lists of 2004 and 2005, permission is being sought to go ahead with the above process of declaration of the out come of the meeting. 9. The 3rd respondent viz., Union Public Service Commission have also filed a detailed reply wherein they have explained the process of selection more or less on the same lines as mentioned above and generally supporting the submissions made by the respondents 1 and 2. Particularly it is stated that though the selection committee meeting for the year 2003 was scheduled to be held on 7.8.2003, in view of the specific orders of the Hon'ble High Court, the Committee decided not to proceed with the selection and accordingly it was postponed. Subsequently, however, writ petitions and review petitions were filed before the Hon'ble High Court which were all dismissed. Accordingly, UPSC filed SLP (C) No. 13467-69 of 2004 before the Hon'ble Supreme Court against the order dated 7.8.2003 of the Hon'ble High Court of Andhra Pradesh whereupon the Hon'ble Supreme Court, on 9.12.2004, passed the interim order directing the selection committee constituted by the UPSC to consider afresh the matter before it viz., dispute of the selection for the year 2002. While passing such an order, the Hon'ble Supreme Court also allowed the selections for IPS for the succeeding years i.e., 2002-2003 and 2003-2004 to go on and the cases of Shri Harikumar and Shri M. Kantha Rao will be considered for the years in which they will come up within the zone of consideration along with the other eligible officers. However, it was directed that the select list for these two years shall not be announced pending further orders of the Hon'ble Supreme Court. Accordingly, the meeting of the selection committee for preparation of the select lists for the years 2003 and 2004 for promotion to IPS of A.P. Cadre was required to be convened. By order dated 6.1.2005, The Government of Andhra Pradesh, forwarded proposals to prepare year-wise select lists of 2003 and 2004 against four and seven vacancies respectively as determined by the Government of India vide Ministry of Home Affairs letter dated 15.1.2003 and 25.3.2004 respectively. Accordingly, as per Regulation 5(2), the zone of consideration for the year 2003 was determined as twelve, and for seven vacancies for the year 2004, the zone of consideration was determined as twenty one. The applicant's name could not be included in the zone of consideration for the year 2003 because as per the inter se seniority of State Police Service officers, as provided by the State Government, other officers senior to the applicant were available for inclusion in the zone of consideration. Similarly, for the year 2004 also, the applicant was not considered eligible as he had already crossed 54 years of age as on 1.1.2004, the crucial date of eligibility for the year 2004. In the mean time, the applicant had filed the present OA in that an interim order dated 28.1.2005 was passed by the Hon'ble Tribunal directing to forward the name of the applicant to the DPC to be considered for the year 2003 and further directing the DPC to consider the case of the applicant if he is otherwise found eligible. However, it was directed that the result of the DPC minutes in relation to the applicant shall not be declared without the permission of this Hon'ble Tribunal. Accordingly, the selection committee had met on 4th and 5th February 2005 to prepare the selections of 2003 and 2004 for promotion of State Police Service officers to the IPS cadre of Andhra Pradesh. The UPSC further stated that in pursuance of the direction of the Hon'ble Tribunal, the case of the present applicant was placed before the selection committee which met on 4th and 5th February 2005. Taking into consideration the factual position, the committee opined that the applicant did not fall in the stipulated zone of consideration for the year 2003 and for the year 2004 the applicant was not eligible for consideration as he had attained the age of 54 years as on 1.1.2004. With the above submissions, the 3rd respondent have opposed the contentions of the applicant and requested for dismissal of the OA. 10. The respondents 4 to 6 have also filed a detailed reply statement opposing the contentions made by the applicant more or less on the lines stated above. They have specifically given the details as to how the vacancies arose for the relevant years. It is stated accordingly that the select list for the years 2003 and 2004 could not be prepared in the respective years due to the court litigations. However, as per the interim order dated 9.12.2004 passed in SLP(C) Nos. 13467 - 13469 of 2004 filed by the UPSC, the Hon'ble Supreme Court directed inter alia, that the selections to IPS for the years 2003 and 2004 can go on and the select lists for these two years shall not be announced till further orders of the Hon'ble Supreme Court. Accordingly, UPSC convened a meeting of the selection committee scheduled on 4th and 5th February 2004, the respondents have further stated that four vacancies had arisen due to the retirement of the following promotee officers during the year 2002: 11. As per Regulation 5(1) of the Promotion Regulations, the select list for the year 2003 has to be prepared for the above four vacancies only which were available as on 1.1.2003. In their order dated 15.1.2002, the Government of India, Ministry of Home Affairs, have determined the vacancies for preparation of the select list for the year 2003 as four. Further, three vacancies have arisen due to the retirement of the following promotee officers during the year 2003: 12. Four more vacancies have arisen due to the increase in the promotion quota from 59 to 63 consequent on the cadre review as notified vide notification dated 5.11.2003. As per Regulation 5(1) of the Promotion Regulations, the select list for the year 2004 has to be prepared for the above seven vacancies i.e., 4 + 3 vacancies, which are available as on 1.1.2004. In their letter dated 25.3.2004, the Government of India have already determined the vacancies for preparation of the select list for the year 2004 as seven. As per the integrated seniority list of the State Police Service officers published by the Government of Andhra Pradesh, the name of the applicant figures in the list of eligible officers at Sl. No. 14 i.e., below Shri PVS Ramakrishna (Sl. No. 13) and above Shri KVV Gopal Rao (Sl. No. 15). Since only three times the number of the vacancies are to be taken into consideration for the zone of consideration for the year 2003, the select list zone of consideration would be 4 x 3 = 12. Since the applicant is at Sl. No. 14 he has not come within the zone of consideration for the year 2003 select list. 13. Since the date of birth of the applicant is 22.10.1949, he has crossed 54 years of age as on 1.1.2004 i.e., the crucial date for computing the eligibility for preparation of 2004 select list. So, he could not be considered for inclusion in the 2004 select list. Accordingly, the respondent Nos.4 to 6 have opposed the contentions of the applicant that the vacancies for 2003 select list would not be seven but only four and so they have requested for dismissal of the OA. 14. No reply has been filed by the respondents 7 to 9, 11 to 17. However, the Respondent No. 10 has filed reply wherein he has, more or less, adopted the same arguments as the respondents 1 to 2 to say that computation of vacancies for which the select committee met, was done as per Regulation 5(1) of the said Regulations and accordingly the number of substantive vacancies were arrived at as on 1st of January which is the cut off date. Accordingly, as on 1.1.2003, there were only four vacancies which were to be determined by the Government of India in consultation with the State concerned and a decision was taken vide letter dated 15.1.2003 to say that the number of vacancies for 2003 was only four. Similarly, by letter dated 25.3.2004, the cadre strength was enhanced from 54 o 63 only with effect from 1.1.2004 and, therefore, there were only four vacancies as on 1.1.2003 and the contention of the applicant that there were seven vacancies available for the year 2003 was not correct. It is further stated by the respondent No. 10 that as per Regulation 5(3), the upper age limit of 54 years would apply and the applicant was not eligible for consideration for 2004 select list since as on 1.1.2004 the applicant would cross the age of 54 years. He has also submitted that this prescription of upper age limit of 54 years which has been challenged by the applicant the OA has already been the subject matter of an Appeal (Civil) No. 6234/2004 before the Hon'ble Supreme Court in the case of Government of India v. G. Limbadri Rao and Ors. wherein the Hon'ble Supreme Court had upheld the validity of the prescription of the upper age limit in the All India Service Promotion Regulations as 54 years although the upper age limit for superannuation was raised to 60 years. 15. The matter was extensively heard in several sittings. The learned Counsel for the applicant cited the following case laws with regard to interpretation of the provisos of enactment: i) Union of India v. Sanjay Kumar Jain para 11 o 13 ii) Nandakishore Ganesh Joshi v. Commissioner, Municipal Corporation of Kalyan and Dombivili and Ors. paras 16 and 19 iii) Maulavi Hussein Haji Abraham Umraji v. State of Gujarat paras 10 and 14 iv) MP Cement Manufacturers Assn v. State of MP para 15 v) 2003 11 SCC 704 Sankar Ram & Co v. Kasi Naicker Para 7 vi) Lakshminrayan R Bhattad v. State of Maharashtra Para 56 vii) Union of India v. Popular Construction Para 12 viii) Kush Saigal v. M.C. Mitter Para 32 ix) Molar Mal v. Kay Iron Works Pvt Ltd Para 15 x) CIT v. Indo Mercantile Bank Ltd. xi) CIT v. P. Krishan Warrier xii) Durga Dutt Sharma v. Navaratna Pharmaceuticals Laboratories xiii) Kedarnath Jute Mfg Co. Ltd. v. TO xiv) Ishverlal Thakorelal Almaula v. Motibhai Nagjibhai xv) CCT Board of Revenue v. Ramkishan Shrikishan Jhaver xvi) S. Sundaram Pillai v. V.R. Pattabiraman 16. The learned Counsel for the respondents 1, 2 and 3 cited the case law in the case of Vijay Singh Charak v. Union of India and Ors. to press the point that for the select list prepared for more than one year, clubbing is not permissible. 17. The learned Counsel for the 3rd respondent cited a decision of the Hon'ble Supreme Court in the case of T.N. Administrative Service Officers Association and Anr. v. Union of India and Ors. to press the point that the vacancies to be filled by promotees should be only the basis of substantive vacancies available on the first day of January of the year in which the meeting was held and not on the basis of the anticipated vacancies as per Regulation 5(1) as amended in 1977. 18. We have given our careful consideration to all the pleadings made in this OA. The points that arise for consideration in this OA are as follows: (a) Whether the calculation of vacancies for the year 2003 as four was in accordance with the Indian Police Service (Appointment by Promotion) Regulations, 1955; and (b) Whether Sub-regulation 3 of the aforesaid Regulation 5 which imposes the age limit of 54 years for consideration for promotion is illegal, arbitrary and violative of Articles 14, 16 and 21 of the Constitution of India. 19. In order to appreciate the issue on hand, it is useful to refer to Regulation 5(1), 5(2) and 5(3) of the Indian Police Service (Appointment by Promotion) Regulations 1955 which are reproduced below: 5(1) Each Committee shall ordinarily meet every year and prepare a list of such members of the State Police Service as are held by them to be suitable for promotion to the Service. The number of members of the State Police Service to be included in the list shall be determined by the Central Government in consultation with the State Government concerned, and shall not exceed the number of substantive vacancies as on the first day of January of the year in which the meeting is held, in the posts available for them under Rule 9 of the Recruitment Rules. The date and venue of the meeting of the Committee to make the selection shall be determined by the Commission; Provided that no meeting of the Committee shall be held, and no list for the year in question shall be prepared when; (a) there are no substantive vacancies as on the first day of January of the year in the posts available for the members of the State Police Service under Rule 9 of the recruitment rules, or (b) the Central Government in consultation with the State Government decides that no recruitment shall be made during the year to the substantive vacancies as on the first day of January of the year in the posts available for the members of the State Police Service under Rule 9 of the Recruitment rules; Provided further that where no meeting of the committee could be held during a year for any reason other than that provided for in the first proviso as and when the Committee meets again, the Select List shall be prepared separately for each year during which the committee could not meet as on the 31st December of each year. Explanation : In case of joint Cadres, a separate select list shall be prepared in respect of each State Police Service. 5(2) The Committee shall consider for inclusion to the said list, the case of members of the State Police Services in the order of seniority in that service of a number which is equal to three times the number referred in Sub-regulation (1). Provided that such restriction shall not apply in respect of a State where the total number of eligible officers is less than three times the maximum permissible size of the Select List and in such a case the Committee shall consider all the eligible officers; Provided further that in computing the number for inclusion in the field of consideration, the number of officers referred to in Sub-regulation (3) shall be excluded; Provided also that the Committee shall not consider the case of a member of the State Police Service unless on the first day of January of the year for which the select list is prepared he is substantive in the State Police Service and has completed not less than eight years of continuous service (whether officiating or substantive) in the post of Deputy Superintendent of Police or in any other post or posts declared equivalent thereto by the State Government. Provided also that in respect of any released Emergency Commissioned or Short Service Commissioned officers appointed to the State Police Service, eight years of continuous service as required under the preceding proviso shall be counted from the deemed date of their appointment to that service, subject to the condition that such officers hall be eligible for consideration if they have completed not less than four year of actual continuous service, on the 1st day of January of the year for which the Select List is prepared, in the post of Deputy Superintendent of Police or in any other post or posts declared equivalent thereto by the State Government. Explanation : The powers of the State Government under the third proviso to the sub-regulation shall be exercised in relation to the members of the sTte Police Service of constituent State, by the government of that State. 5(3) The Committee shall not consider the cases of the members of the State Police Service who have attained the age of 54 years on the first day of January of the year for which the select list is prepared: Provided that a member of the State Police Service whose name appears in the Select List in force immediately before the date of the meeting of the Committee and who has not been appointed to the service only because he was included provisionally in the Select List shall be considered for inclusion in the fresh list to be prepared by the Committee, even if he has in the meanwhile, attained the age of fifty four years. Provided further that a member of the State Police Service who has attained the age of fifty four years on the first day of January of the year for which the Select List is prepared shall be considered by the Committee, if he was eligible for consideration on the first day of January of the year or any of the years immediately preceding the year in which such meeting is held but could not be considered as no meeting of the Committee was held during such preceding year or years under item (b) of the proviso to Sub-regulation (1). 20. A plain reading of Regulation 5(1) above clearly shows the following: (a) The select committee should ordinarily meet every year; (b) This committee will prepare a list of members of the State Police Service officers suitable for promotion to the IPS; (c) The number of members of State Police Service to be included shall be determined by the Central Government in consultation with the State Government; (d) The number of members of State Police to be promoted shall not exceed the number of substantive vacancies as on 1st January of the year in which the select committee meeting is held; (e) The date and the venue of the meeting of the committee shall be determined by the UPSC. 21. From the above, it follows that the select list for each year should be prepared on the basis of the vacancies as on the first January of the year in which the meeting is held. As per the first proviso, no meeting shall be held and no list for the year in question shall be prepared only when there are no substantive vacancies available on the first January of the year and also where the Central Government, in consultation with the State Government, decides that no recruitment shall be made during the year. According to the second proviso, where no meeting of the Committee could be held during a year for any reason (other than those mentioned in the first proviso) as and when the Committee meets again, the select list shall be prepared separately for each year during which the committee could not meet as on 31st December of each year. (As per Regulation 5(2) the zone of consideration to be determined by the State will be three times the substantive vacancies in the order of seniority. Regulation 5(3) puts a bar for consideration for promotion where any member of the State Police Service has crossed 54 years as on 1st January of the relevant year.) 22. The learned Counsel for the applicant argued mainly on the interpretation of the second proviso to say that a proper reading of the above proviso would show that where a Committee could not meet in any previous years, the select list shall be prepared separately for each year taking into account not only the vacancies as on first January of the year but also the vacancies arising up to 31st December of that year. In other words, the learned Counsel would argue that the words "as on 31st December of each year" occurring towards the end of second proviso, would have to be given its proper meaning and thus, the select list would have to be prepared 'as on 31st December of each year' and not as on 1st January of each year. 23. We are afraid, we cannot subscribe to the above interpretation of the 2nd proviso. The words "as on 31st December of each year" are to be taken to qualify only the expression - "during which the Committee could not meet" and not to "the select list to be prepared separately for each year". 24. As seen from para 20 above and as pointed out by the respondents, the provision for determining the number of substantive vacancies for each year is contained in the main Regulation (1) itself i.e., as on 1st January of each year. Therefore, there would be no need for any other date to be given in the proviso clause. As the main Regulation has already laid down the procedure for determining the vacancies for any year i.e., substantive vacancies as on 1st January of that year, the proviso clause would not touch upon the question of determining the vacancies once again. What all the 2nd proviso says, in our opinion, is only that there shall be no clubbing and that the select list shall be prepared separately each year during which the committee did not meet. It appears to us that to be abundantly clear, the words "as on 31st December of each year", has been placed in the proviso clause. Thus, whenever reference to select list for any year is made vide 2nd proviso to Regulation 5(1), it is always as on 1st January of that year and not 31st December of that year, as argued by the learned Counsel for the applicant. The above view is also supported by the decision of the Hon'ble Supreme Court in the cited case law in the case of T.N. Administrative Service officers Association and Anr. v. Union of India and Ors. cited by the 3rd respondent vide para 17 above. 25. In view of the above and since the Government of India has already determined the vacancies for preparation of the select list for the year 2003 as four vide letter dated 15.1.2003 which they have done in pursuance of the Regulation 5(1), the number of vacancies for 2003 is correctly determined as four only. The applicant's plea that the vacancies that arose during the year 2003 should be added to this and taken together as the vacancies for the year 2003 is not acceptable for the reasons discussed above. Similarly, the Government of India, vide letter dated 5.11.2003 have determined the vacancies for the year 2004 as seven in terms of the Regulation 5(1) above i.e., four vacancies which have arisen due to increase in promotion quota from 59 to 63 and three vacancies due to the retirement of promotee officers during the year 2003. 26. None of the case laws cited by the applicant would come to his rescue. On the other hand, the case law cited by the respondents 1 to 3 in the case of Vijay Singh Charak (supra) would directly apply to the present case. In the cited case, their Lordships have held (vide para 11 of the judgment) that there cannot be clubbing of the vacancies for several years and there cannot be common select list for these years. Their observations in para 12 are reproduced below: A select list can only be prepared for a particular year and only those who are eligible in that particular year alone can be considered for selection in the select list. Even if the select list is not prepared in that year, it will relate back to that particular year. 27. In the subject case, the selection committee could not meet during the year 2003, for the reason that the Hon'ble Supreme Court had issued an interim injunction directing not to hold any section committee meeting for the years 2003 and 2004. The dispute that came before the Hon'ble Supreme Court relating to the year 2002 was resolved. That is how 2nd proviso is attached in this case. If, on the other hand, the selection committee had met in the year 2003 as per schedule, the number of vacancies would have been only four i.e., as on 1st January 2003 as correctly determined by the respondents. Thus, applying the ratio of the decision of the Hon'ble Supreme Court in the above cited case also, the select list has to relate back to the year in which the Committee ought to have met viz., 2003, in which case the vacancies as on 1st January 2003 alone could be taken and not the vacancies that arose during the year 2003. In the light of the above, the contention of the applicant in this regard has to be rejected. In the light of the above, we answer the point (a) in para 18 above in the affirmative. 28. As regards point No. 2, the applicant has argued that the Regulation 5(3) of the Indian Police Service (Appointment by Promotion) Regulations, 1955 has placed an embargo on attaining the age of 54 years as on 1st January thus shutting down the consideration of the applicant for promotion which is a fundamental right. Since this Regulation was introduced by way of an amendment when the age of superannuation of All India Service employees was 58 years and now that it has been increased to 60 years, it has got no nexus and hence it has to be declared illegal. In his view, since the feeder category is the State Government employees, fixing an embargo on the age of 54 years does not explain the nexus it seeks to achieve. Accordingly, the learned Counsel for the applicant has argued that the above provision violates Articles 14, 16 and 21 of the Constitution of India and bad in law and should be set aside. 29. Here also, we are afraid, we cannot endorse the view of the learned Counsel for the applicant. As pointed out by the learned Counsel for the Respondent No. 10, this matter also has already been decided by the Hon'ble Supreme Court, in the case of Government of India v. G. Limbadri Rao and Ors. (supra) in Civil Appeal 6234 of 2004 delivered on 22.9.2004 out of SLP(C) No. 11708 of 2002, observing thus- In other words, the short question that falls for consideration in the instant appeal is as to whether the respondent have committed any illegality in considering the case of the first respondent for non-inclusion in the proposals to be sent to the Union Public Service Commission for preparation of the select list of Non-State Civil services officers for the year 2002 for appointment to the IAS on the ground that the first respondent has attained the age of 54 years as on 1.1.2002. Referring to the proviso to Regulation 4, the Hon'ble Court observed- However, the proviso mandates that the State Government shall not consider the case of the person who has attained the age of 54 years on the first day of January of the year in which the decision is taken to propose the names for consideration of the Committee. The proviso to Regulation 4 clearly states that the State Government shall not consider the case of a person who has attained the age of 54 years on the first day of January of the year in which the decision is taken to propose the names for consideration of the Committee. In the instant case, as already noticed, the proposal was sent by the State Government in January, 2002. Therefore, on 1.1.2002, the first respondent has completed the age of 54 years. In our opinion, the first respondent is not eligible and entitled for considering his name for appointment to the post of IAS by selection. Accordingly, the Hon'ble Supreme Court set aside the order of the Hon'ble High Court of Andhra Pradesh allowing the respondent to be considered for promotion even though he had crossed the age of 54 years. In view of the above, the contention of the applicant in this regard, has to be rejected. We accordingly answer the point (b) in para 18 above in the negative. 30. In the light of the above discussions, the OA fails and has to be dismissed. The OA is accordingly dismissed. There shall be no order as to costs. 31. Now, in the instant case, it is admitted that as on 1st January, 2003 there were only four vacancies. So, according to the respondents 1 to 6, the select list for 2003 was prepared only for four vacancies as on 1.1.2003. There were three vacancies which arose due to the retirement of promotee officers during 2003. But these would have to be taken into account only for the next year as on 1st January. Of course, further four more vacancies arose due to increase of the promotion quota from 59 to 63. Thus, as on 1st January 2004, there were seven vacancies, according to the respondents. This is the point of dispute between the applicant and the respondents. The learned Counsel for the applicant, taking into account the interpretation of the 2nd proviso as above, argued that because there were no meetings held between 2003 and 2004 and when such a meeting was held in 2005, there shall be separate select lists for each year viz., 2003 and 2004 with the difference that for 2003 the vacancies not only standing as on 1.1.2003 shall be taken but also the vacancies that arose during the year 2003 i.e, as on 31st December of that year shall be taken. According to the learned Counsel for the applicant, the actual number of vacancies that should have been reckoned for the year 2003 is 4+3=7 and not only four. According to him, the vacancies for 2004 will be nil. Whereas the respondents have stated that the vacancy position has to be determined in accordance with the proviso to Regulation 5(1) and so they are bound by the number of vacancies as on 1st January of each year. Accordingly, the vacancies for 2003 will be only four and the vacancies that arose during the year 2003 would be reckoned as on 1st January 2004 and will be taken into account only for the year 2004, with the additional vacancies which will be seven for the year 2004 and not as stated by the applicant. 32. According to the first proviso, where no meeting is held during a particular year for the reasons other than those mentioned in the above proviso, that means, there being no vacancy or the Central Government decides that no recruitment shall be made, in such case, when the committee meets again, the select list shall be prepared separately for each year during which the Committee could not meet as on 31st December of each year. It is this portion of the Regulation which requires interpretation. A clear reading of the same shows that the second proviso does not lay down the procedure for determining the vacancies that are covered by the main proviso to Regulation 5(1). What is provided in the 2nd proviso is only that when the Committee meets after a gap of a period, then the select list will be prepared for each year. The words during which the committee could not meet as on 31st December of each year, will have to be read together. The learned Counsel for the applicant has argued that the words as on 31st December of each year would clarify that the select list shall be prepared separately for each year. We are afraid, such an interpretation is not correct, since the main Regulation has already laid down the procedure for determining the vacancies for any year i.e., substantive vacancies as on 1st January of that year. The proviso clause would not again touch upon the question of determining the vacancies once again. What all the 2nd proviso says is only that there shall be no clubbing and the select list shall be prepared separately each year during which the committee did not meet. To be abundantly clear, perhaps, the words as of 31st December of each year, has been placed in the proviso to make it beyond any doubt, in our opinion. In view of the above, since the Government of India has already determined the vacancies for preparation of the select list for the year 2003 as four vide letter dated 15.1.2003 which they have done in pursuance of the Regulation 5(1), the number of vacancies for 2003 is only four. The applicant's plea that the vacancies that arose during the year 2003 should be added to this and taken together as the vacancies for the year 2003 is not acceptable for the reasons mentioned above. Similarly, the Government of India, vide letter dated 5.11.2003 have determined the vacancies for the year 2004 as seven in terms of the Regulation 5(1) above i.e., four vacancies which have arisen due to increase in promotion quota from 59 to 63 and three vacancies due to the retirement of promotee officers during the year 2003. In the light of the above, we answer the point (a) in para 18 above in affirmative. None of the case laws cited by the applicant would come to his rescue. On the other hand, the case law cited by the respondents in the case of Vijay Singh Charak (supra) would apply to the present case. In the said case, their Lordships have held vide para 11 that there cannot be clubbing of the vacancies several years and there cannot be common select list for these years. Their observations in para 12 also are relevant wherein it has been observed as follows: A select list can only be prepared for a particular year and only those who are eligible in that particular year alone can be considered for selection in the select list. Even if the select list is not prepared in that year, it will relate back to that particular year. 33. Following the observations of the Supreme Court as above, we find that had the select committee met in the year 2003 and 2004 as per schedule, the number of vacancies would have been four and even the seven vacancies as now determined by the respondents, in which case also, the applicant would not have been within the zone of consideration. As pointed out by the 3rd respondent, the Hon'ble Supreme Court had issued an interim injunction in this case directing not to hold any select committee for the years 2003 and 2004. The only dispute that came before the Hon'ble Supreme Court was resolved with reference to the year 2002 and ultimately with the leave of the Court, the Committee eventually met in 2005. Thus, applying the ratio of the decision in the above said case also, the select list has to relate back to the year in which the Committee ought to have met viz., 2004, in which case the vacancies as on 1st January 2003 alone could be taken and not the vacancies that arose during the year 2003. In the light of the above, the contention of he applicant in this regard has to be rejected. 34. As regards the point No. 2, the applicant has argued that the Regulation 5(3) of the Indian Police Service (Appointment by Promotion) Regulations, 1955 has placed an embargo on attaining the age of 54 years as on 1st January thus shutting down the consideration of the applicant for promotion which is a fundamental right since this Regulation was introduced by way of an amendment when the age of superannuation of All India Service employees was 58 years and now that it has been increased to 60 years, it has got no nexus and hence it has to be declared illegal. Since the feeder category is the State Government employees, fixing an embargo on the age of 54 years does not explain the nexus it seeks to achieve. Accordingly, the learned Counsel for the applicant has argued that the above provision violates Articles 14, 16 and 21 of the Constitution of India and bad in law and should be set aside. 35. Here also, we are afraid, we cannot endorse the view of the learned Counsel for the applicant. As pointed out by the learned Counsel for the Respondent No. 10, this matter is no longer res integra as the matter has been decided by the Hon'ble Supreme Court in the case of Government of India v. G. Limbadri Rao and Ors. (supra) in Civil Appeal 6234 of 2004 delivered on 22.9.2004. The matter had arisen out of SLP(C) No. 11708 of 2002. The Hon'ble Court observed that the short question that fell for consideration was as to whether the respondents have committed any illegality in considering the case of the first respondent for non-inclusion in the proposals to be sent to the Union Public Service Commission for preparation of the select list of Non-State Civil Services officers for the year 2002 for appointment to the IAS on the ground that the 1st respondent had attained the age of 54 years as on 1.1.2002. Referring to the proviso to Regulation 4 which states that the State Government would not consider the case of a person who has attained the age of 54 years on the 1st January of the year in which a decision is taken to propose the names for the consideration of the committee, the Hon'ble Supreme Court set aside the order of the Hon'ble High Court allowing the respondent to consider even though he had crossed the age of 54 years and set-aside the impugned judgment passed by the Hon'ble High Court of Andhra Pradesh. In view of the above, we do not find any thing wrong in the Regulation 5(3) of the said Regulations which stipulates that the committee shall not consider the case of a Member of the State Police Service who has attained the age of 54 years as on 1st January of the year for which the select list is prepared. The contention of the applicant in this regard, is therefore, rejected. We accordingly answer the point (b) in para 18 above in negative. 36. In the light of the above discussions, the OA fails and has to be dismissed. The OA is accordingly dismissed. There shall be no order as to costs.

Shri M. Nago Rao S/O Late Sri Laxman vs Union Of India (Uoi) Represented ... on 17 July, 2007

Central Administrative Tribunal - Hyderabad

JUDGMENT Ravindra Singh, J. 1. This application is filed by the applicant Abhimanyu Singh alias Damphal with a prayer that he may be released on bail in case crime No. 65 of 2005 under Sections 147, 148, 149, 307, 302/34 I.P.C. P.S. Nadigaon district Jalaun. 2. According to the prosecution version, the F.I.R. of the present case has been lodged by one Mahendra Kumar Sharma at Police Station Nadi gaon on 14.6.2005 at 7.45 p.m. in respect of the occurrence which had occurred on 14.6.2005 at about 5 p.m. The distance of the police station was about 200 meters from the alleged place of occurrence. The F.I.R. was lodged against the applicant and five other co-accused persons. According to the prosecution version, the first informant, who is the father of the deceased Ashok Kumar Sharma, his brother Jitendra Kumar and his sister's son Abhivyas had gone to the market of Nadigaon for purchasing some articles, when they reached near the shop of one Farid Qadri, one Marshal Jeep came there and from that vehicle applicant and other co-accused persons came out who were armed with weapons and all the accused persons in abusive language stated that the deceased be murdered to finish his leadership. Thereafter the applicant fired at the deceased. The co-accused Tajuddin and Manvendra Singh fired at the first informant, but he did not receive any injury. Due to firing done by the applicant and other co-accused persons, the atmosphere of terror and fear was developed in the market. Consequently, the shopkeepers ran away from the shops by shutting down their doors. Thereafter all the accused persons left the place of occurrence by showing the weapons and discharging the shots. The alleged occurrence was witnessed by some persons including Bhanwar Singh and Raghvendra Singh. The deceased in injured condition was taken to the hospital at Konch by his vehicle but he died in the way. The dead body of the deceased was taken to hospital, leaving the dead body here the first informant went to the police station where he lodged the F.I.R. 3. Head Sri Satish Trivedi, Senior Advocate assisted by Sri M.C. Chaturvedi and Sri S.C. Dwivedi, learned Counsel for the applicant and the learned A.G.A. on behalf of the State of U.P. 4. It is contended by the learned Counsel for the applicant that in the present case the F.I.R. is delayed, it was lodged after great thought and consultation because the police station was hardly at a distance of 200 meter but the F.I.R. is delayed by 2.45 hours and there is no plausible explanation of delay in lodging the F.I.R. 5. It is further contended that in the present case the presence of the first informant and other witnesses mentioned in the F.I.R. was highly doubtful at the alleged place of occurrence, because, according to the F.I.R. version the deceased in injured condition was taken to the hospital at Konch in a vehicle of the first informant but the memo of death sent by the hospital to the S.H.O. P.S. Kotwali Konch district Jalaun shows that one dead body was taken to the hospital who died due to gun shot injury by Constable Ram shromani Singh and Gyan Singh of the Police Station Nadigoan. By this memo it is established that the deceased was not taken to the hospital by the first informant and the witnesses mentioned in the F.I.R. 6. According to the F.I.R. version, the co-accused Tajuddin and Manvendra Singh have fired but the first informant did not receive any injury whereas there was equal motive against the deceased and his sons also, which shows that neither the first informant nor other witnesses were present at the place of occurrence. 7. It is further contended that according to the prosecution version, all the five accused persons were armed with weapons but it is strange to note that only the applicant discharged one shot, consequently the deceased received one gun shot wound entry and its exit wound. No other injury was caused by the accused persons on the deceased. 8. It is further contended that no specific weapon was shown in the hands of the applicant and other co-accused persons in the F.I.R. and the statements of all the witnesses namely Jitendra Kumar, Bhanwar Singh and Raghvendra. They were interrogated and their statements were recorded by the Investigating Officer under Section 161 Cr.P.C. on 17.6.2005.Their statements are delayed without any plausible explanation which makes their presence doubtful. It is further contended that in the present case the statements of the constables namely Ram Shromani Singh and Gyan Singh who brought the deceased to the hospital Konch were not recorded by the Investigating Officer under Section 161 Cr.P.C. which belies whole prosecution story. 9. It is further contended that the recovery of the country made pistol at the pointing of the applicant is fake and it was planted. 10. It is further contended that in the present case an F.I.R. is anti time and the prosecution story is not corroborated by the postmortem report also. The applicant is a peace loving person but he has been falsely implicated in this case due to some political reason and he is in jail since 18.6.2005, the applicant will not temper with the evidence and he shall cooperate with the trial, in case he is released on bail. 11. It is opposed by the learned A.G.A. by submitting that in the present case there is no delay in lodging the F.I.R. because the delay has been explained in the F.I.R. as the deceased in the injured condition was immediately taken to the hospital at Konch to provide medical aid but the deceased died in the way, after leaving the dead body in the hospital the first informant went to the police station Nadigaon where he lodged the F.T.R., the distance of Konch is about 25 kms from Nadigaon where the alleged occurrence has taken place. 12. It is further submitted that in the present case the presence of the first informant and other witnesses at the alleged place of occurrence was not doubtful because the deceased after receiving the gun shot injury was immediately shifted to the hospital at Konch by his personal vehicle. The police station was near the place of occurrence, it was hardly at a distance of 200 meter and the alleged occurrence had taken place in open market at day time, which created panic in the market, the shutter of the shops were down by the shop keepers, they ran away by their shops, in such alarming situation the presence of the police personnel of the P.S. Nadigaon was highly natural and two police constables also went in the company of the first informant to the hospital at Konch where it was noted that the deceased was brought by constables Ram Shromani Singh and Gyan Singh of P.S. Nadigaon. In the record of the hospital the name of the companion are not recorded, therefore, it cannot be said that the deceased was not taken to the hospital by the first informant. According to the memo sent to P.S. Konch.t It was sent on 14.6.2005 at 6.30 p.m. which shows that the deceased was brought to the hospital before 6.30 p.m. and he has received injuries at about 5 p.m.. It is further submitted that in the F.I.R. it has been clearly mentioned that the applicant and four other co-accused persons were armed with the weapon. The word **vlygk** is used in Bundelkhand area for firearm and there is specific allegation against the applicant that he caused injury to the deceased consequently the deceased died. The inquest report of the deceased was prepared at Konch. There was no inconsistency in the inquest report also, the F.I.R. was not anti timed. The alleged occurrence had taken place in market which created panic in the market also and the alleged occurrence was witnessed by independent witnesses. It is further submitted that at the pointing out of the applicant one D.B.B.L. (Factory made) gun along with four live cartridges were recovered and one empty cartridge was in the barrel of the D.B.B.L. gun, therefore it was wrongly contended by the learned Counsel for the applicant that one country made pistol at the pointing out of the applicant was recovered, There is no delay in recording the statement of the witnesses. It was not necessary to interrogate the constables Ram Shromani Singh and Gyan Singh because they were not the eye witnesses and non interrogation of these police constables does not affect the eye witness account at all. It is further contended that the applicant is an harden criminal and he is involved in 14 Criminal cases. He is detained in jail under National Security Act also. In case he is released on bail, he will temper with the evidence and he may abscond also. The deceased was a very popular person. He was active in politics and on the day of the alleged occurrence wife of the deceased was the chair person of Nagar Panchayat Nadi gaon. He was murdered in the market and due to this murder public order was totally disturbed due to this problem the District Magistrate passed order for conducting the postmortem in the night in a heavy police security. The applicant was having strong motive to commit the murder of the applicant due to political rivalry. 13. Considering the facts and circumstances of the case and submissions made by the learned Counsel of the applicants and the State of U.P. and considering the nature of the offence, role of the applicant the criminal antecedents of the applicant, I am of the view that the applicant is not entitled for bail. At this stage it is not proper to record any finding in respect of the arguments advanced by the learned Counsel for the applicant and the learned A.G.A. Therefore, the prayer for bail is refused. 14. Accordingly this application is rejected.

Author: R Singh

Abhimanyu Singh @ Dampal, S/O ... vs State Of U.P. on 10 March, 2006

Allahabad High Court

Gujarat High Court Case Information System Print LPA/315/2011 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No. 315 of 2011 In SPECIAL CIVIL APPLICATION No. 7664 of 2008 ================================================= JIGNESHKUMAR RAMESHBHAI PATEL - Appellant(s) Versus GUJARAT STATE CO OPERATIVE MARKETING FEDERATION LIMITED & 1 - Respondent(s) ================================================= Appearance : MR AB GATESHANIYA for Appellant(s) : 1, None for Respondent(s) : 1 - 2. ================================================= CORAM : HONOURABLE MR.JUSTICE V. M. SAHAI and HONOURABLE MR.JUSTICE G.B.SHAH Date : 12/05/2011 ORAL ORDER(Per : HONOURABLE MR.JUSTICE V. M. SAHAI) NOTICE returnable on 20th July, 2011. [V M SAHAI, J.] [G B SHAH, J.] msp     Top

Author: V. M. G.B.Shah,&Nbsp;

Jigneshkumar vs Gujarat on 12 May, 2011

Gujarat High Court

ITEM NO.61 COURT NO.5 SECTION III SUPREME COURT OF INDIA RECORD OF PROCEEDINGS Petition(s) for Special Leave to Appeal (Civil) No(s).25047/2008 (From the judgment and order dated 27/11/2007 in STR No. 273/2007 of The HIGH COURT OF RAJASTHAN AT JAIPUR) COMMERCIAL TAX CHECK POST,RATANPUR Petitioner(s) VERSUS M/S.PERFECT THREAD MILLS LTD. Respondent(s) (With appln(s) for c/delay in filing SLP and office report) Date: 19/01/2009 This Petition was called on for hearing today. CORAM : HON'BLE MR. JUSTICE S.H. KAPADIA HON'BLE MR. JUSTICE AFTAB ALAM For Petitioner(s) Mr. Jatinder Kumar Bhatia,Adv. For Respondent(s) Mr. Sandeep Bajaj, Adv. Mr. P.V. Yogeswaran,Adv. UPON hearing counsel the Court made the following ORDER Delay condoned. Leave granted. The appeal is allowed with no order as to costs. (S. Thapar) (Madhu Saxena) PS to Registrar Court Master The signed order is placed on the file.  IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.344 OF 2009 (Arising out of SLP(C) No.25047 of 2008) COMMERCIAL TAX CHECK POST, RATANPUR ...APPELLANT (S) VERSUS M/S PERFECT THREAD MILLS LTD. ...RESPONDENT(S) ORDER Delay condoned. Leave granted. The issue is squarely covered by our two judgments in the case of Guljag Industries Vs. Commercial Taxes Officer reported in 2007 (7) SCC 269 and Assistant Commercial Taxes Officer Vs. M/s Bajaj Electricals Limited reported in 2008 (14) SCALE 380, in favour of the Department. Accordingly, the Civil Appeal filed by the Department stands allowed with no order as to costs. ....................J. [ S.H. KAPADIA ] New Delhi, ....................J January 19, 2009 [ AFTAB ALAM ] 

Author: ....................J.

Commercial Tax Check ... vs M/S.Perfect Thread Mills Ltd on 19 January, 2009

Supreme Court of India

ORDER Satyanarayana Raju, J. 1. This is an application under Section 460 (6) of the Companies Act (1 of 1956) for setting aside the order of the Official liquidator, dated 35th July, 1960, rejecting claim No. 34 filed by the applicant. 2. The East Coast Transport and Shipping Company, Limited, Masulipatam (hereinafter referred to as 'the Company') was incorporated under the provisions of the Indian Companies Act in or about the year 1937. The main activity of the Company consisted in conducting the business of clearing and forwarding agents for loading goods in Masulipatam port into ships, which anchor at a distance from the shore, through country craft owned by it. Among the properties acquired by the company on its formation were the rights, interests and the benefits of all existing contracts then possessed by one P.V. Rangayya of Masulipatam and his family. This family may for the sake of brevity, be referred to as the Presingu family and is now represented by one Someswara Rao, who is the applicant in this application. 3. On its formation, the company entered into an agreement with Sri P.V. Rangayya as a consequent at which his business of stevedoring was taken over by the company as a going concern. In this application, we are not concerned with the further history of the company. It is sufficient to state that on an application filed by one of its shareholders, in O.P. No. 11 of 1956 the company was wound up by an/order dated February 6, 1957. Subsequently the assets of the Company were sold in public auction and were purchased by one M.V. Sastri, who will hereafter be referred !o as the respondent. 4. Presingu Someswara Rao, a former managing Director of the Company, filed claim No. 34 before the Official Liquidator for recovery of a sum of Rs. 1,28,000/-. It was alleged by him that the company had in and by resolution No. 3 dated 20th February, 1950 elected him as its Managing Director upto March 31, 1953. That resolution reads as follows:-- "From this day upto 31-3-1953 Sri Presingu Someswara Rao was elected as Managing Director. It is resolved that a sum of Rs. 2,000/- per year be paid towards Managing Director's remuneration. At the end of each year 10% of the net profits should be paid to the Presingu family through Sri Presingu Someswara Rao." 5. That part of the resolution which directed the Company to pay each year 10 per cent of the net profits to the Presingu family through Someswara Rao virtually remained a dead letter by reason of the fact that the company had not earned any profits. 6. The annual general body meeting of the Company passed the following resolution on April, 27, 1952: "(5) Regarding the remuneration resolved to be paid to the Presingu family in para 3 of the resolution passed at the share-holder's meeting on 20-3-50, as the members of the Presingu family have been working in the company and contributing towards the property of the company the resolution to pay the aforesaid remuneration to them is again approved." 7. The claimant says that by virtue of these resolutions the Presingu family became entitled to 10 per cent of the profits and that, in fact, the resolution was implemented by the Company by the payment of certain amounts to the Presingu family. The claim now made relates to the balance of the "remuneration" which the family is entitled to for the years 1953-54 and 1954-55 as also the subsequent years 1955-56 and 1956-57. 8. It may be mentioned here that Presingu Someswara Rao, the former managing Director of the Company, submitted his resignation on June 20, 1955. Admittedly there was no demand made by him for the payment of the remuneration on the basis of the above resolution tin the present claim was made before the Official Liquidator. 9. It was contended before the Official Liquidator, that the family was entitled to this remuneration, totalling Rs. 1,00,000/- and that the net profits ought to be determined before the Income-tax payable by the company was deducted. This contention did not find favour with the Official Liquidator who held that profits should be ascertained after taking into account the income-tax liability. 10. It is contended on behalf of the respondent (auction-purchaser) that either the Board of Directors or the general body of the Company cannot in law grant or pay any remuneration to the Presingu family, But reliance is placed by the learned counsel for the applicant on Section 291 of the Indian Companies Act which reads: "(1) Subject to the provisions of this Act, the Board of Directors of a company shall be entitled to exercise all such powers, and to do all such acts and things, as the company is authorised to exercise and do. Provided that the Board shall not exercise any power or to do any act or thing which is directed or required, whether by this or any other Act or by the Memorandum of articles of the company or otherwise, to be exercised or done by the Company in general meeting. Provided further that in exercising any such power or doing any such act or thing, the Board shall be subject to the provisions contained in that behalf in this or any other Act, or in the memorandum of articles of the company, or in any regulations not inconsistent therewith and duly made thereunder, including regulations made by the Company in general meeting." 11. The basis on which the claim for remuneration is sought to be justified is that at the inception of the company the properties belonging to the Presingu family were acquired by the company, that one half of the total share capital was subscribed by the Presingu family, the other half having been subscribed by other individuals; and that ever since the formation of the company, the Managing Director was a member of the Presingu family and that the remuneration was granted in recognition of the services rendered by the members of the family. 12. In the first place, there is no precise specification of the members of the family who would be entitled to this remuneration. The expression 'presingu family' is vague and the resolution itself does not define which exactly the members of that family are. A genealogical table has been filed showing the descendants of one Presingu Duryodhanudu and it is said that the surviving members of this family are entitled to this remuneration. It may be stated at the outset that in the absence of the specification of the members of the family in the resolution itself, it would not be permissible for this Court to make an investigation and find out who the beneficiaries are to be. That apart, it does not appear that the resolution to pay remuneration to the members of the family, who have been instrumental in the formation of the company, would be justified either by the provisions of Section 291 or any other provisions of the Companies Act. Section 291, which defines the Board's powers and enume rates the restrictions on those powers, itself circumscribes the scope of the power by stating that in exercising any such powers the Board shall act subject to the provisions contained in that behalf in this or any other Act or in the Memorandum of articles of association or regulations not inconsistent therewith. 13. In Chapter II the Companies Act makes provision for compensation for loss of office to managing or whole-time Directors or Directors who were managers. Section 318 provides that compensation for loss of office is nor permissible except to the managing or whole time Directors or Directors who were managers. Section 319 provides for payment to a Director for loss of office or property. Section 320 provides for payment to a Director for loss of office, etc., in connection with the transfer of shares. Nowhere in the Companies Act do we find any provision for the payment of remuneration to persons other than those provided under the aforesaid section. I am, therefore, not prepared to hold that the members of the Presingu family are entitled to be paid any remuneration. 14. There remain two other items in respect of which the applicant made a claim, and they are items 2 and 3 which comprise sums of Rs. 16,000/- and Rs. 12,000/- respectively. It is stated that these amounts represent the profits realised by Maiden and Company of which the present claimant was the Manager and that the same had been added in the books of the Company in liquidation. These alleged entries were made during the years 1951-52 and 1952-53. During those years, the present claimant was the Managing Director of the company. The balance sheets of the company were prepared under his direction and the books of account maintained by the company were audited by the auditors of the Company. At no time did the claimant complain that there were wrong entries except in the present claim made after the lapse of several years. It was rightly pointed out by the Liquidator that the claimant had not substantiated his claim by the production of any oral or documentary evidence and that he had nor even examined himself In support of the claim. 15. In these circumstances, the rejection of the applicant's claim under the aforesaid three categories is, in my opinion, correct and needs no interference, this application is, therefore, dismissed, with the taxed costs of the auction-purchaser.

Author: S Raju

Jaldu Anantha Raghurama Arya vs East Coast Transport And Shipping ... on 28 July, 1961

Andhra High Court

Gujarat High Court Case Information System Print SCR.A/92/1993 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION No. 92 of 1993 ========================================================= STATE OF GUJARAT - Applicant(s) Versus SOMABHAI V PATEL & 1 - Respondent(s) ========================================================= Appearance : MR HLL JANI, APP for Applicant(s) : 1, MR NR SHAHANI for Applicant(s) : 1, MR RD DAVE for Respondent(s) : 1, MR MB GANDHI for Respondent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE R.P.DHOLAKIA Date : 04/07/2008 ORAL ORDER Since last several adjournments, learned counsel for the respondent No.1, Mr.R.D.Dave, is not taking any care in the matter. Today also, he requested for time through his colleague. This shows that he lost interest in the matter. In view of the above, the matter is sent back to office. (R.P.DHOLAKIA,J) radhan/     Top

Author: R.P.Dholakia,&Nbsp;

State vs Somabhai on 4 July, 2008

Gujarat High Court

Gujarat High Court Case Information System Print CAST/5604/2011 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL APPLICATION (STAMP NUMBER) No. 5604 of 2011 In SECOND APPEAL No. 150 of 1999 ========================================================= CHANCHALBEN WD/O BABABHAI - Petitioner(s) Versus HANSABEN WD/O AJITBHAI CHHOTALAL JAYSWAL & 1 - Respondent(s) ========================================================= Appearance : MS TRUSHA K PATEL for Petitioner(s) : 1, 1.2.1, 1.2.2, 1.2.3, 1.2.4, 1.2.5,1.2.6 None for Respondent(s) : 1, 1.2.1, 1.2.2, 1.2.3,1.2.4 - 2. ========================================================= CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 23/06/2011 ORAL ORDERRule returnable on 21st July, 2011. (K.S.JHAVERI,J.) pawan     Top

Author: Ks Jhaveri,

Chanchalben vs Hansaben on 23 June, 2011

Gujarat High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.23803 of 2011 ====================================================== 1. Harischandra Rai, son of Paras Rai. 2. Himanshu Rai, son of Jangbahadur Rai. 3. Asha Devi, wife of Harischandra Rai. 4. Savitri Dei, wife of Jangbahadur Rai. All are residents of Vill. Baithaniya, P.S. Majhaulia, Distt. West Champaran. .... .... Petitioner/s Versus The State of Bihar .... .... Opposite Party/s ====================================================== with Criminal Miscellaneous No.27087 of 2011 ====================================================== Navin Kumar Rai, son of Harichandra Rai Vill.-Baithaniya, P.S.- Majhauliya,Dist.-West Champaran. .... .... Petitioner/s Versus The State of Bihar .... .... Opposite Party/s ====================================================== Appearance : (In Cr.Misc. No.23803 of 2011) For the Petitioner/s : Mr. Bimlesh Kumar Pandey, Advocate For the Opposite Party/s : Mr. Umanath Mishra, A.P.P. (In Cr.Misc. No.27087 of 2011) For the Petitioner/s : Mr.Bimlesh Kumar Pandey, Advocate For the Opposite Party/s : Mrs. Pushpa Sinha No.2, A.P.P. ====================================================== CORAM: HONOURABLE MR. JUSTICE BIRENDRA PRASAD VERMA ORAL ORDER (Per: HONOURABLE MR. JUSTICE BIRENDRA PRASAD VERMA) 3 14-10-2011 Heard. The petitioners in both the cases apprehend their arrest in a criminal prosecution registered under Sections 147, 366A and 364 of the Indian Penal Code. According to the prosecution case, Patna High Court Cr.Misc. No.23803 of 2011 (3) dt.14-10-2011 2 one Angila Kumari, minor daughter of the informant, was allegedly kidnapped by the petitioners. Learned counsel for the petitioners submits that the alleged victim girl has been recovered and her statement under Section 164 Cr.P.C. was recorded on 3rd June 2011 vide Annexure-2. By referring to Annexure-2, it is submitted that the age of the victim girl has been assessed by learned Magistrate between 19-20 years and victim has claimed that she is aged about 20 years. In her statement under Section 164 Cr.P.C., she has contradicted the entire prosecution case. Allegations, as disclosed in the first information report, against all the petitioners stand falsified by the statement of the victim girl. Be that as it may, in the facts and circumstances of the case, in the event of their arrest or surrender before the learned court below within a period of four weeks from today, the above named petitioners are directed to be released on bail in connection with Majhaulia P.S. Case No.121 of 2011 on furnishing bail bonds of Rs.10,000/-(ten thousand) each with two sureties of like amount each to the satisfaction of learned Chief Judicial Magistrate, Bettiah, West Champaran subject to the conditions laid down under Section 438 (2) of the Cr.P.C. (Birendra Prasad Verma, J) Anjani /- 3

Harischandra Rai & Ors. vs The State Of Bihar on 14 October, 2011

Patna High Court - Orders

Gujarat High Court Case Information System Print SCA/664/2009 9/ 11 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 664 of 2009 To SPECIAL CIVIL APPLICATION No. 673 of 2009 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge? ========================================================= EVEREST PUBLICITY - Petitioner(s) Versus MUNICIPAL COMMISSIONER & 2 - Respondent(s) ========================================================= Appearance : MR MIHIR JOSHI, SR.ADVOCATE WITH MR. AJAY S JAGIRDAR for Petitioner(s) : 1, NOTICE SERVED BY DS for Respondent(s) : 1 - 3. MR RM CHHAYA for Respondent(s) : 1 - 3. ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 15/01/2010 ORAL JUDGMENT1. As common question of law and facts arise in this group of petitions, they are being disposed of by this common judgment. 2. In all this group of petitions under Article 226 of the Constitution of India the respective petitioners have prayed for an appropriate Writ, direction and/or order declaring action of the respondents as illegal in indulging into demolition of the hoardings of the respective petitioners, particulars of which are as per Annexure C to the petitions. 3. It is the case on behalf of the respective petitioners that they are doing business of outdoor advertising, putting hoardings in the city of Rajkot since many years and paying licence fees regularly. That they have paid licence fees lastly for the accounting year 2008 2009. It is the case on behalf of the respective petitioners that respondent Corporation without issuing any show cause notice, started large scale demolition in the City of Rajkot in the afternoon of Friday (23.01.2009) and some hoardings were demolished. Therefore, respective petitioners have approached before this Court by way of present petitions. 4. It is the case on behalf of the respective petitioners that regulations in respect of placing of the hoardings are permitted and notification was issued in 2002 and subsequently in 2004 and therefore, respective petitions have been granted licence to placement of hoardings at various sites in the city of Rajkot and thereafter have paid licence fees of Rs.300/- per Sq.Mts. for non-lit hoardings and Rs.400/- per Sq.Mtrs. for lit hoardings. Therefore, it is submitted that action of the respondents in demolishing some of the hoardings and proposed action of demolition of advertising / boards of the respective petitioners are absolutely illegal and such high handed action is bad in law, illegal. 5. Mr.Mihir Joshi, learned Senior Advocate appearing for the respective petitioners has submitted that action of the respondents pulling down hoardings lying in private premise is absolutely high handed and without issuing any notice or without giving any opportunity of hearing and without following principles of natural justice. It is submitted that same is with ulterior purpose to pressurize the advertisers who have been granted permission to put up hoardings in private properties and is trying to monopolize the advertising business of the persons who have been allotted the tender more particularly allotted to one Sambhav Media Ltd. by the respondent Corporation. Sum and substance of submissions and case of the respective petitioners in nutshell is that they have been issued licence and have paid licence fees up to 2008-2009 and still without any notice, without giving any opportunity, respondent Corporation is likely to demolish hoardings / advertising boards of the respective petitioners. 6. All these petitions are opposed by Mr.R.M.Chhaya, learned Advocate appearing for the respondent Corporation. It is submitted by Mr.Chhaya, learned Advocate for the respondent Corporation that all these petitions are required to be dismissed on the ground of suppression of material fact. It is submitted that case on behalf of the respective petitioners that proposed action is without any notice and/ or without giving any opportunity is factually incorrect. He has relied upon various correspondences between respondent Corporation and respective petitioners which are annexed with affidavit -in-reply. It is further submitted by Mr.Chhaya, learned Advocate for the respondent Corporation that as such none of the respective petitioners have applied for licence as per General Development Control Regulations (herein after referred to as 'GDCR' for short) after 2004 and time and again all the respective petitioners were called upon to see that provisions of GDCR are complied with. It is submitted that GDCR is part of development plan and all inclusive of respective petitioners are bound to comply with the provisions of GDCR and have hoardings as per provisions of GDCR more particularly clause 21 of GDCR. It is submitted that none of the respective petitioners have put up hoardings by complying with the requirement as per GDCR and therefore, action of the respondent Corporation in pulling down / demolishing hoardings are in accordance with the provisions of GDCR, which is after following due procedure i.e. after giving notice which is just and proper and not required to be interfered with. Therefore, it is requested to dismiss present Special Civil Applications with costs. 7. In reply, Mr.Mihir joshi, learned Senior Advocate appearing on behalf of the respective petitioners has relied upon affidavit-in-rejoinder and tried to explain notices which were issued in the year 2007 and it is submitted that therefore, as such there is no suppression as alleged by the learned Advocate appearing for the respondent Corporation. It is submitted that due to administrative reshuffle, due to lack of complete information, the Town Planning Department issued notice under section 245(3) of the Bombay Provincial Municipal Corporation Act (herein after referred to as 'BPMC Act') in the month of November, 2007 and same were replied by the respective individual petitioners which were with respect to individual hoardings. It is submitted that after aforesaid notices were issued in the month of November, 2007, respondent Corporation issued another notice for renewal of licence fee on 13.03.2008 for the year 2007 2008 and the petitioners had sent cheques, but respondent Corporation had not deposited the same and thereafter, demanded new cheques from the respective petitioners zone wise and in response to that, respective petitioners submitted fresh cheques in March / April 2008. It is submitted that thereafter, respondent Corporation issued another notice dated 11.08.2008 for yearly renewal of licence fees for the year 2008 -2009 which can be said to be third notice. However, thereafter considering representation of the respective petitioners that till a decision is taken by the State Government as regards the policy regulations and fees in respect of outdoor hoardings, the Corporation would continue with the prevailing position and thereafter, respective petitioners paid renewal fees for the year 2008-2009 and thereafter, no notice have been issued to the respective petitioners for demolition of hoardings. Therefore, it is requested to allow present Special Civil Applications. 8. Heard the learned Advocates for the respective parties at length. 9. At the outset it is required to be noted that when Special Civil Applications came to be filed by the respective petitioners, it was the specific case on behalf of the respective petitioners that pulling down / demolition of hoardings and/or proposed action of Corporation in pulling down / demolition of the hoardings of respective petitioners is absolutely illegal and without giving any prior notice. However, considering affidavit-in-reply filed by the respondent Corporation aforesaid is factually incorrect. Having pointed out in affidavit-in-reply with respect to the same and issuance of notices / various correspondences between the respondent Corporation and respective petitioner, respective petitioners have as such admitted in affidavit-in-rejoinder with respect to earlier notices issued in the year 2007-2008 and correspondences. However, they have tried to explain said notices. Therefore, fact remains that respective petitioners have not stated correct facts before the Court and have suppressed material fact with respect to earlier correspondences and notices issued in the year 2007-2008 and on such misrepresentation and suppression of material fact they have obtained ex-parte ad-interim relief. Thus, respective petitioners are not entitled to extraordinary discretionary relief from this Court in exercise of powers under Article 226 of the Constitution of India. Respective petitioners were supposed to and required to state correct facts. It appears that respective petitioners have not come with clean hands which disentitles them discretionary and equitable relief under Article 226 of the Constitution of India. 10. It is to be noted that sign boards and hoardings are governed and regulated under Chapter 21 of GDCR of Rajkot Urban Development Authority (herein after referred to as 'RUDA' for short), which were sanctioned as a part of final development plan vide Notification dated 20.02.2004 and the same have come in force from 06.03.2004. That RUDA has fixed the design and size of the hoardings under its Resolution No.1343. As per Chapter 21 of GDCR, only authorized sings (hoardings) paging tower and telephone towers will be permitted and anybody who wants to put up any hoardings, paging tower and/or telephone tower is required to comply with Chapter 21 of GDCR and required to apply licence and/or apply for permission as contemplated under Regulation No.21.1. It appears that none of the respective petitioners have applied for any permission / licence as contemplated under Regulation no.21.1. From various correspondence / notice referred to in affidavit-in-reply produced along with affidavit-in-reply, respective petitioners were time and again informed to comply with provisions of GDCR. However, it appears that none of the respective petitioners have complied with the same. It appears that as respective petitioners did not comply with provisions of GDCR and still continued to have hoardings contrary to provisions of GDCR, even respective petitioners were served with notice by the Assistant Town Planner, Rajkot Municipality under section 245(3) of BPMC Act and only thereafter, respondent Corporation has started pulling down / demolishing hoardings which are contrary to provisions of GDCR. It is to be noted that respective petitioners did not produce Stability Certificate at the relevant time, which respective petitioners have produced subsequently. All the aforesaid correspondences and notices were required to be referred to by the respective petitioners in the petitions which they have failed to refer to in the petitions. Even otherwise considering aforesaid facts and circumstances, more particularly, notices / correspondences produced along with affidavit-in-reply, it cannot be said that action of the respondent Corporation is in any way illegal and/or arbitrary and/or against principles of natural justice which calls for interference of this Court in exercise of powers under Article 226 of the Constitution of India. Considering aforesaid and considering the fact that hoardings which are put by the respective petitioners are not in consonance with provisions of GDCR and/or provisions of RUDA and more particularly when respective petitioners have never applied for permission as required under Chapter 21 of GDCR and when respondent Corporation has initiated proceedings for pulling down / demolishing hoardings, it cannot be said that respondent- Corporation has acted illegally and/or arbitrarily. 11. In view of above and more particularly considering the fact that respective petitioners have suppressed material fact of notices / correspondences between respondent Corporation and respective petitioners and Association and they have not come with clean hands, all these petitions deserve to be dismissed and ad-interim relief granted by this Court which respective petitioners have obtained by suppressing fact and making incorrect averments in the petitions, deserve to be vacated. Accordingly, all these petitions are dismissed with costs. Notice discharged in each of the petitions. Ad-interim relief granted stands vacated forthwith. 12. At this stage, Mr.Mihir Joshi, learned Senior Advocate appearing for the respective petitioners prayed for extension of ad-interim relief granted earlier by this Court so as to enable respective petitioners to approach higher forum, ad-interim relief granted earlier is directed to be continued till 26.03.2010. [M.R.Shah,J.] satish     Top

Author: M.R. Shah,

Everest vs Municipal on 21 October, 2011

Gujarat High Court

JUDGMENT ISMAIL J. - The Income-tax Appellate Tribunal, Madras Bench, has referred the following question for the opinion of this court under section 256(1) of the Income-tax Act, 1961 : "Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was right in law in holding that the indirect expense like interest and banking charges, managing agency remuneration, sitting fees, etc, should be considered as part of the actual cost of the assets for entitlement of depreciation and development rebate ?" The assessee is a company engaged in the manufacture of meters. It commenced production in or about October, 1963. The pervious year adopted for assessments is the year ended 31st March. During the previous years relevant to the assessment years 1962-63, 1963-64 and 1964-65, the assessee incurred expenses to the extent of Rs. 5,70,624 consisting mainly of interest and bank charges, advertisements, audit fees, filing fees, managing agency remuneration, sitting fees, rent and lighting, cost of technical know-how, etc. The company capitalised this expenditure and added it to the cost of assets in its accounts. For the purpose of assessments, it claimed depreciation on such capitalised expenditure and also development rebate in respect of such expenditure allocated to plant and machinery for the assessment years 1964-65, 1965-66 and 1966-67. The Income-tax Officer allowed the assessee's claim only to the extent of Rs. 1,33,565 paid towards cost of the technical know-how to the foreign collaborators and negatived its claim in respect of the remaining part of the expenditure on the ground that they were not directly incurred for the erection or construction of plant and machinery or buildings, holding that though the actual cost was not defined in the Act, in normal parlance, it could only mean the sum actually spent for the acquisition of the assets and not the indirect expenses and that, therefore, depreciation and development rebate were not admissible on the sum so capitalised. The assessee preferred appeals against all the three assessments. The Appellate Assistant Commissioner in those three appeals held that the assessee's claim has to be fully allowed in respect of the interest paid on borrowed amounts, but with regard to the other amounts claimed by the assessee, only 50 per cent, could be allowed. In doing so, he also disallowed the claim based on audit fees, advertisement expenses and filing fees. The result of the order of the Appellate Assistant Commissioner was that an amount of Rs. 3,07,054 representing interest payments was allowed to be capitalised towards cost of machinery. Out of the balance of Rs. 2,54,402 50 per cent. alone was allocated to the actual cost of machinery, working it out to Rs. 1,27,221. The total of these amount came to Rs. 4,34,225. Since the Income-tax Officer had already allowed Rs. 1,33,565 being the payment made for the technical know-how to the foreign collaborators, the balance of Rs. 3,00,690 was directed to be allocated to the items of depreciable assets commissioned in each year on the basis as set out in the assessment order. Against the order of the Appellate Assistant Commissioner, appeals were preferred in respect of all the three years both by the assessee as well as the department. The Income-tax Appellate Tribunal affirmed the order of the Appellate Assistant Commissioner. It is, thereafter, at the instance of the department, the Income-tax Appellate Tribunal, Madras Bench, has referred the question as mentioned above for the opinion of this court. We shall now give the various amounts claimed by the assessee to form part of the cost of its assets for the different years in question. 1962-63 1962-63 1963-64 1963-64 1964-65 1964-65   Rs. Rs. Rs. Rs. Rs. Rs. Managing agency remuneration 7,896 12,000 Rent and lighting 149 1,513 8,248 Audit fees 700 871 Law charges 1,500 5,623 Directors' sitting fees 1,600 5,000 2,100 Advertisement 2,198 535 Interest and banking charges 7,687 1,34,383 1,64,984 Filing fees 800 175 Technical staff training expenses 50,638 27,607 Depreciation on furniture 163 1,089   63,810 1,85,917 1,87,332 Less : Interest receipts Less : Interest receipts 17,721 23,659 Balance 63,810 1,68,196 1,63,673 The above figures do not include the sum of Rs. 1,33,565 paid to the foreign collaborators towards technical know-how. Consequently, the question for consideration before us is, out of these items, what are the items which can be capitalised as forming part of the cost of the assets of the company. We are leaving out the audit fees, advertisement charges and filing fees because the claim of the assessee in respect of these items was negatived by the Appellate Assistant Commissioner which was confirmed by the Income-tax Appellate Tribunal and the assessee itself had not come up to this court in respect of those items. Consequently, we are left with the three major heads, namely, interest and banking charges, technical staff training expenses and payment to foreign collaborators for the technical know-how and the other items finding a place in the extract given above. As far as the interest part is concerned, there is a direct decision of the Supreme Court on this point in Challapalli Sugars Ltd. v. Commissioner of Income-tax [1975] 98 ITR 167 (SC). In this decision, the Supreme Court approved the view of the Calcutta High Court in Commissioner of Income-tax v. Standard Vacuum Refining Co. of India Ltd. [1966] 61 ITR 799 (Cal), which view was followed by this court in Commissioner of Income-tax v. L. G. Balakrishnan & Bros. (P.) Ltd. [1974] 95 ITR 284 (Mad) and a similar view was taken by the Allahabad High Court in Commissioner of Income-tax v. J. K. Cotton Spinning & Weaving Mills Ltd. [1975] 98 ITR 153 (All). In doing so, the Supreme Court, after referring to the various principles as to the ascertainment of the actual cost of asserts as laid down in certain text books dealing with accountancy as well as certain decisions pointed out - See [1975] 98 ITR 167, 175 (SC) : "It would appear from the above that the accepted accountancy rule for determining the cost of fixed assets is to include all expenditure necessary to bring such assets into existence and to put them in working condition. In case money is borrowed by a newly started company which is in the process of constructing and erecting its plant, the interest incurred before the commencement of production on such borrowed money can be capitalised and added to the cost of the fixed assets which have been created as a result of such expenditure. The above rule of accountancy should, in our view, be adopted for determining the actual cost of the assets in the absence of any statutory definition or other indication to the contrary." There being no definition of the term "actual cost of the assets" in the Income-tax Act or the Rules made thereunder, following the above decision of the Supreme Court, it must be held that the Appellate Assistant Commissioner as well as the Income-tax Appellate Tribunal were right in allowing the claim of the assessee to the extent of Rs. 3,07,054 being the interest paid on borrowed capital for the purpose of bringing into existence the assets. The same principle will apply to the amount spent by way of training of staff as well as payment to the foreign collaborators for the technical know-how because in the extract of the judgment of the Supreme Court given above, the expenditure necessary to bring such assets into existence and to put them in working condition is referred to. In this particular case, the Appellate Assistant Commissioner has found as a fact, as regards technical staff training expenses, that the agreement between the assessee and Messrs. Denis Ferranti Meters Ltd., the collaborators for the production of meters, showed that the asessee's staff members had to be deputed for training both in the erection and the working of the machinery and also in the production intricacies. Similarly, with regard to the payment of Rs. 1,33,565 as technical know-how fees to the foreign company, the Appellate Assistant Commissioner pointed out that the agreement between the assessee and the foreign company shows that the payment related not merely to the installation of the machinery but also the supply of drawings, designs and plans and disclosure of technical and secret process for production, etc. Thus, these two payments partake the character of partly the necessary training for the erection of the machinery and acquisition of the technical know-how and partly the necessary training for running the machinery after erection and also the secret processes for production. Therefore, the Appellate Assistant Commissioner was right in apportioning 50 per cent. of these two amounts by way of additions to the actual cost of the assets disallowing the other 50 per cent. That leaves out the several other items referred to by us already, namely, (1) managing agency remuneration; (2) rent and lighting; (3) law charges; (4) directors' sitting fees; and (5) depreciation on furniture. There is no express finding either by the Appellate Assistant Commissioner or by the Appellate Tribunal that these amounts also were relatable to the acquisition of the assets or the erection of the machinery. In the absence of any such finding, the Appellate Assistant Commissioner and the Appellate Tribunal were not justified in allowing the claim of the assessee to capitalise the expenditure under those heads even to the extent of 50 per cent. Consequently, while affirming the conclusion of the Appellate Assistant Commissioner as well as the Appellate Tribunal with respect to the interest payment of Rs. 3,07,054 and technical staff training expenses of Rs. 50,638 for the year 1962-63 and Rs. 27,607 for the year 1963-64 and the payment of Rs. 1,33,565 to the foreign collaborators as technical know-how fees, we direct the Appellate Tribunal to record a specific finding in respect of the other items enumerated above as to whether they are referable or relatable to the erection of the machinery or bringing into existence of any of the assets of the company. Under these circumstances, while answering the question referred to us (we may incidentally point out that the expression "indirect expenses" occurring in the question may not be appropriate since they are the actual expenses incurred) against the revenue on principle, namely, that all expenses incurred for bringing the assets into existence and putting them in working condition can be capitalised for the claim of depreciation and development rebate, we direct the Income-tax Appellate Tribunal to deal with the items enumerated already for the purpose of finding out whether they were expenses necessary for bringing into existence any of the assets of the company or putting them in working condition, and if the finding of the Tribunal is that they or part thereof were necessary for bringing into existence of the assets or putting them in working condition, the assessee would be entitled to capitalise them also and claim depreciation and development rebate thereon. Since the assessee has substantially succeeded, it will be entitled to its costs. Counsel's fee Rs. 250.

Commissioner Of Income-Tax, ... vs Simco Meters Ltd. on 1 April, 1976

Madras High Court

Court No. - 10 Case :- CONTEMPT APPLICATION (CIVIL) No. - 3698 of 2010 Petitioner :- Shanteshwar Prasad Shukla Respondent :- Smt. Radha S. Chauhan, Secretary Food & Drug Control & Ors. Petitioner Counsel :- M.M. Sahai Hon'ble Vikram Nath,J. It is alleged that the order dated 7.5.2010 passed by this court has been violated. From a perusal of the petition, a prima facie case is made out. Issue notice to opposite parties fixing 22nd September, 2010. The opposite parties need not appear at this stage. The Counter affidavit may be filed within the aforesaid period or else charges may be framed after summoning the noticee. However, one more opportunity is granted to the opposite parties to comply with the order within a month. The office may send a copy of this order along with the notice. Order Date :- 4.8.2010 SS

Shanteshwar Prasad Shukla vs Smt. Radha S. Chauhan, Secretary ... on 4 August, 2010

Allahabad High Court

MCRC No.8277/2015 23-06-2016 Let fresh process fee be paid for issuance of notice to the respondents No.1 and 2.Notice be made returnable within two weeks. List the matter on 1310912016 . (s. c. SHARMA) JUDGE

The State Of Madhya Pradesh vs Badrilal on 23 June, 2016

Madhya Pradesh High Court

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 26/02/2010 CORAM THE HONOURABLE MR. JUSTICE R.S.RAMANATHAN W.P.(MD)No.7890 of 2009 and M.P.(MD)No.1 of 2009 C.Sengottuvel ... Petitioner Vs 1.The Principal Secretary/Commissioner of Technical Education, Directorate of Technical Education, Guindy, Chennai-600 025. 2.The Principal in-Charge, Tamil Nadu Polytechnic College, Madurai. 3.Ms.Vijaya Mareeswari, Head of Department/Electronics Department, In-charge for Electrical Department, Tamil Nadu Polytechnic College, Madurai-625 011. 4.V.Subburaj, Senior Lecturer/Electrical, Tamil Nadu Polytechnic College, Madurai-625 011. 5.The Deputy Director General NCC, National Cadet Corps Directorate, Tamil Nadu, Pondicherry & Andaman, Fort St. George, Chennai-9. ... Respondents Writ Petition has been filed under Article 226 of the Constitution of India praying for the issuance of a writ of Certiorarified Mandamus, to call for the records, dated 23.07.2009 in proceedings No.23682/B21/2009 issued by the first respondent read with the order, dated 24.07.2009 in proceeding No.2588/E1/2009 issued by the second respondent and quash the same and consequently, directing the respondents 1 and 2 to retain the petitioner in the second respondent institution. !For Petitioner ... Mr.G.R.Swaminathan ^For Respondents ... Mr.K.Balasubramanian Additional Govt. Pleader :ORDER Heard both sides. 2.The petitioner is working as Senior Lecturer in the second respondent institution and is also the captain for NCC 7th Battalion in Madurai. He was transferred by the proceedings of the 2nd respondent, dated 08.02.2008 to Central Polytechnic College, Chennai and the same was challenged by him, by filling W.P.(MD)No.4414 of 2008 before this Court on the ground that the same was made without consulting the 5th respondent. 3.According to the petitioner, as per G.O.Ms.No.239, Education and Science and Technology (V2) Department, dated 23.03.1995, the educational authorities are directed to consult the Director, NCC, while transferring the NCC part-time Officers employed in the Department from one institution to another and without consulting the 5th respondent, the order of transfer was passed and hence, it has to be quashed. This Honourable Court dismissed the said writ petition W.P.(MD)No.44414 of 2008 holding that the petitioner was transferred on promotion and it was not a case of transfer simpliciter and therefore, the aforesaid G.O. was not applicable to the petitioner. This Court also granted liberty to the petitioner to make representation to the authorities and on the basis of the representation given by the petitioner, the earlier order was modified and by order, dated 09.1.2008 he was reposted in Madurai as regular Senior Lecturer. Hence, the petitioner was employed as a regular Senior Lecturer in the Electrical and Electronic Department and continuing to function as captain of NCC 7th battalion in Madurai. It is stated by the petitioner that the 3rd respondent, who is the Head of Department of Electrical, is not qualified to hold that post and somebody has made a complaint about the same to the higher authorities and the 3rd respondent is under the impression that the persons working under her might have given such a complaint and therefore, she was having suspicion about the petitioner and other persons. The 4th respondent initially wanted to go to Chennai on transfer and he was also transferred to Chennai and now he wanted to come back to Madurai and taking advantage of the strained relationship between the 3rd respondent and the petitioner and other staff, he was able to influence the authorities to issue the order of transfer on 23.07.2009, transferring the petitioner to Government Polytechnic College at Tuticorin and got him posted in the place of the petitioner. This transfer order, transferring the petitioner to Tuticorin is challenged stating that the transfer was made in violation the G.O.Ms.No.239, dated 23.03.1995 without consulting the 5th respondent and the person, who was transferred to his post does not have any training in NCC and in the earlier writ petition, this Court has held that but for the transfer of the petitioner on promotion, the 5th respondent ought to have been consulted before the transfer and hence, the transfer is liable to be set aside. 4.The respondent filed a counter stating that the 3rd respondent made certain complaints against the petitioner and other teaching staff about the malpractices alleged to have been committed by them in the purchase of books for the students at subsidised prices, refusal to sign in the Attendance Registrar and also refusal to take part time courses in the evening and coming to the college in a drunken mood. Therefore, an inquiry Committee was appointed, consisting of Additional Director (Polytechnic) and Special Officer (Curriculum Development Centre) and the said Committee inquired into the complaints and also inquired the petitioner and other persons and after getting their explanations, submitted its report holding that all the charges levelled against the petitioner and other persons were proved. It is further stated that the impugned order was passed not with an intention to punish the petitioner, but due to administrative reasons and the petitioner was also relieved from his duty on 24.07.2009 and the petitioner was also posted in the vacant post of Senior Lecturer (Electrical and Electronics). It is further submitted that the 4th respondent was posted in the 2nd respondent institution for the vacant post of Senior Lecturer (Electrical) and not in the place the petitioner was holding, as contended by the petitioner. It is further stated that having regard to the report of the inquiry Committee and taking into consideration of the gravity of charges levelled against the petitioner, the first respondent thought it fit to transfer the petitioner and therefore, due to administrative reasons the impugned order of transfer was passed. 5.It is further stated that G.O.Ms.No.239, Education, Science and Technology (V2) Department, dated 23.3.1995 gave only guidelines and it is not necessary that the 5th respondent must be consulted before effecting transfer of the staff. The 5th respondent was requested to give training to the person, who was posted in the place of the petitioner and it is not as if the said person is not capable of acquiring the qualification and training. It is, therefore, submitted by the learned Additional Government Pleader that the transfer is only a transfer simpliciter on the basis of the administrative exigencies and it is not a punitive transfer and that cannot be challenged. 6.The petitioner filed the re-joinder affidavit stating that the inquiry report filed by the inquiry Committee would prove that it was created only for the purpose of transferring the petitioner and the persons, who conducted the enquiry had signed in the report as 17.06.2009 and in that report, they have stated that they conducted enquiry on 10.07.2009 and had the persons conducted the enquiry on 10.07.2009, how they could have submitted the report on 17.06.2009 and hence, it is a pre-planned conspiracy to transfer the petitioner. He further submitted that the counter filed by the first respondent would make it clear that it is a case of punitive transfer and he also denied the allegations made against him in the charges. 7.Mr.G.R.Swaminathan, the learned counsel appearing for the petitioner submitted that in W.P.(MD)No.4414 of 2008, it has been made clear that G.O.Ms.No.239, dated 23.03.1995 is only applicable to the petitioner and the order of transfer in violation by of the aforesaid G.O. is not proper but however held that the petitioner was transferred on promotion and it was not a case of transfer simpliciter and therefore, the G.O. was not applicable to this case. He further submitted that now the petitioner was transferred to the same post and even according to the first respondent, the transfer is a transfer simpliciter based on administrative grounds and hence, as per the judgment of this Court, in the earlier writ petition, without consulting the 5th respondent, the petitioner should not have been transferred and hence, the transfer order is liable to be set aside. 8.He further submitted that the first respondent has admitted that the petitioner was transferred on the basis of the charges levelled against him and as a result of enquiry and hence, the order of transfer is by way of punishment and hence, without giving an opportunity to the petitioner, he ought not to have been transferred and therefore, the order of transfer is bad in law. In support of his contention, the learned counsel appearing for the petitioner relied upon the unreported judgment of this court rendered in W.P.(MD)No.9171 of 2009, dated 17.11.2009, in the matter of C.Jeyammal vs. The District Revenue Officer, Kallar Reclamation, Madurai and two others and the facts of the case is similar to that facts of the case and following the judgment of the Honourable Supreme Court and our Honourable High Court, the learned Judge has held that though the order of transfer was stated to be on administrative grounds, it was passed by way of punishment and hence, without giving opportunity to the petitioner, the order of transfer should not have been passed and hence, it is liable to be set aside. He further relied upon the judgment reported in 2006 (2) CTC 468 in Sevugan.S. vs. The Chief Educational Officer, Virudhunagar District and another and submitted that when the transfer order is by way of punishment, it cannot be passed without conducting enquiry and hence, the impugned order is liable to be set aside. 9.Mr.K.Balasubramanian, the learned Additional Government Pleader submitted that in the judgment reported in JT 2009(10) in the case of Rajendra Singh etc. ect vs. State of U.P. Others, the Honourable Supreme Court has held that when the transfer was not challenged on the ground of mala-fides or otherwise against the statutory rules, the transfer order cannot be challenged and even assuming that on the basis of the charges, the petitioner was transferred that cannot be treated as a punitive transfer. He further submitted that in the earlier writ petition, this court has not held that the G.O.Ms.No.239 dated 23.03.1995, is mandatory and without consulting the 5th respondent, the petitioner cannot be transferred. He further submitted that the said G.O. is only a guideline and it is not as if the petitioner cannot be transferred as he has obtained NCC training and the said training can be acquired by any other staff and the person, who has been transferred to the post of the petitioner was directed to get the training and the 5th respondent was also requested to give such training to that person and therefore, the order of transfer cannot be challenged on that ground. He further reiterated that it is not a case of punitive transfer and it is a case of transfer on administrative reasons, with a view to protect the interest of the institution. 10.I have given my anxious consideration to the submissions made by both the counsels. 11.In this case, the points for consideration are: 1.Whether the G.O.Ms.No.239, dated 23.03.1995 is mandatory and without consulting the 5th respondent can be the petitioner transferred? 2.Whether the transfer is a transfer simpliciter on administrative grounds or a punitive transfer? 12.Point No.1. As per G.O.Ms.No.239, Education, Science and Technology (V2) Department, dated 23.03.1995, instructions were issued to the effect that the Educational Authorities may consult the Director, NCC while ordering departmental transfers of NCC part-time officers. The purpose of G.O. was made clear in para 3, wherein it has been stated that due to non-consultation with the officials of the 5th respondent, much time is wasted by giving training to the new person as it takes considerable time to select and post new Associate NCC Officers. Therefore, as a matter of convenience, the said G.O. was passed requesting the authorities to consult with the 5th respondent before effecting the transfer and those persons, who had already undergone training, the said G.O. did not say that under no circumstances, such persons cannot be transferred. 13.Further in para 4 of the said G.O. makes it clear that the Director of Technical Education is directed to consult the Deputy Director of General, NCC Directorate (TN, P & A), Madras, sufficiently in advance while ordering departmental transfers of Associate NCC Officers (NCC Part time Officers) so as to avoid any wastage of the NCC Special training acquired by those Associate, NCC Officers and in the interest of functioning of NCC troops . Therefore, it was only recommended that so as to avoid any wastage of time, they must be informed in advance, as as to give training to others persons and there is no total prohibition of transferring the persons without consulting them. Therefore, the contention of the petitioner that without consulting the 5th respondent, the order of transfer was made and it liable to be set aside cannot be accepted. 14.Further, in the earlier writ petition, this Court has not considered the scope of G.O.Ms.No.239. Therefore, the transfer order cannot be quashed on the ground that the 5th respondent was not consulted as per G.O.Ms.No.239. 15.Point No.2: The next submission of the learned counsel appearing for the petitioner is that the order of transfer is not a transfer simpliciter but a punitive transfer and it has been also admitted by the first respondent in the counter that on the basis of the charges levelled against the petitioner and having regard to the gravity of the charges, the order of transfer was made in the interest of the institution. He, therefore, contended that without conducting enquiry, the order was made and hence, it is liable to be set aside and he relied upon the judgment of this Court stated above. Therefore, we will have to find out whether the transfer is a transfer simpliciter or a punitive transfer. 16.In the impugned order, it has been stated that due to administrative reasons, the petitioner was transferred and posted as Senior Lecturer(Electrical and Electronic Engineering) in Government Polytechnic Tuticorin, in the existing vacancy. Therefore, as per the impugned order of transfer, it is only a transfer simpliciter and it cannot be stated that it is a punitive transfer. But, in the counter filed by the first respondent, it has been admitted that the 3rd respondent had levelled some charges against the petitioner and other staff about the alleged malpractices committed by them and an enquiry was conducted in to the charges levelled against the petitioner and the enquiry officials submitted the report holding that all the charges were proved against the petitioner and therefore, having regard to the gravity of the charges, the petitioner was transferred. Therefore, by the admission of the first respondent, it has been made clear that on the basis of the enquiry, charges were levelled against the petitioner and on the basis of the enquiry report, the petitioner was transferred and therefore, it may take the character of a punitive transfer. As submitted by the learned counsel appearing for the petitioner, the Honourable Supreme Court has held in various cases that punitive transfer is bad in law, when it was made without giving opportunity to the petitioner. This court has taken the similar view in the judgment reported in 2006 (2) CTC 468 in Sevugan.S. vs. The Chief Educational Officer, Virudhunagar District and another, wherein it has been held as follows:- "It is seen from the impugned order of transfer that it is passed on administrative ground, but it appears that the order was passed by way of punishment and based on the complaint against the conduct of the petitioner. If that be so, the petitioner is certainly entitled for proper opportunity to defend himself as to whether the complaints against him by the Public or by the Headmaster is proper or not by way of an enquiry. In these circumstances, this Court is of the view that the transfer order passed by way of punishment is without any opportunity to the petitioner and on the face of it, the order of transfer is illegal and the same is liable to be set aside. Accordingly, the impugned order is set aside." 17.Further, in the Division Bench of this Court, in the unreported judgment, dated 24.04.2009 in W.A.No.1138 of 2008, similar view was also taken by this court. (A.Micheal Raj vs. Director General of Police and others) held thus: "Though in the impugned order of transfer it is stated as if the transfer has been effected on administrative grounds, the same has been given a go-by in the counter affidavit filed by the respondents as stated above. As per the averments contained the counter affidavit the transfer was passed on some adverse remarks/complaints received against the appellant and also on the basis of the report sent by the Director General of Police to the Inspector General of Police, West zone, and in such circumstances we are of the considered view that the order of transfer passed against the appellant is by way of punishment and that too without giving any opportunity of hearing to the petitioner." Therefore, from the above judgments, it is seen that when the transfer order was made on the basis of the report or on the basis of the charges levelled against the petitioner, the same is punitive one when the order was made without giving opportunity and the order is liable to be set aside. But in this case, it cannot be stated that no opportunity was given to the petitioner. 18.It is seen from the report of the enquiry officials that they enquired various persons, including the petitioner and he was questioned on 10.07.2009 about the charges levelled against him and the petitioner and other persons gave answers against the charges levelled against them and on the basis of the reply given by the petitioner, the Enquiry Committee found that the petitioner and other persons have misbehaved with the 3rd respondent. Therefore, on the basis of the charges levelled against the petitioner and other persons, the petitioner was given a chance to answer to the charges levelled against him and it was found by the Enquiry Committee that the petitioner has misbehaved with the 3rd respondent. Further the committee has also found fault with the 3rd respondent and no financial irregularities have been found against the petitioner. Therefore, it is seen from the report of the Enquiry Committee that it was only a fact finding Committee and no financial irregularities were attributed towards the petitioner. Under these circumstances, the order of transfer was passed in the interest of the institution. Therefore, it cannot be stated that it is a case of punitive transfer and without giving opportunity, the order was made. 19.In this respect the judgment of the Honourable Supreme Court reported in 2004(4) SCC 245 in the case of Union of India and others vs. Janardhan Debanath and another, has to be considered. In that case also on the basis of the charges levelled against the employee and with a view to inquire the employee the employee was transferred and that order was challenged on the ground that it was a punitive in nature and the Honourable Supreme Court has held as follows: " The manner, nature and extent of exercise to be undertaken by courts/tribunals in a case to adjudge whether the use of the word "undesirable" casts a stigma or constitutes a punishment would depend upon the consequences flowing from the order and as to whether it adversely affected any service conditions- status, service prospects financially- and the same yardstick, norms or standards cannot be applied to all categories of cases. Transfers unless they involve any such adverse impact or visit the persons concerned with any penal consequences, are not required to be subjected to same type of scrutiny, approach and assessment as in the case of dismissal, discharge, reversion or termination and utmost latitude should be left with the department concerned to enforce discipline, decency and decorum in public service which are indisputably essential to maintain quality of public service and meet untoward administrative exigencies to ensure smooth functioning of the administration. The allegations made against the respondents are of serious nature and the conduct attributed is certainly unbecoming. Whether there was any misbehaviour is a question which can be gone into in a departmental proceedings. For the purpose of effecting a transfer, the question of holding an enquiry to find out whether there was misbehaviour or conduct unbecoming of an employee is unnecessary and what is needed is the prima facie satisfaction of the authorities concerned on the contemporary reports about the occurrence complained of and if the requirement, as submitted by the respondents, of holding an elaborate enquiry is to be instated upon, the very purpose of transferring an employee in public interest or exigencies of administration to enforce decorum and ensure probity would get frustrated. The question whether the respondents could be transferred to a different division is a matter for the employer to consider depending upon the administrative necessities and the extent of solution for the problems faced by the administration. It is not for the Supreme Court to direct one way or the others." Therefore, the Honourable Supreme Court has held that the order of transfer cannot be said to be punitive in nature and the holding of an enquiry need not be insisted upon for the purpose of transferring an employee in public interest and due to exigencies of administration and to enforce decorum and ensure probity a transfer order can be passed. 20.According to me, the facts of that case squarely applies to the facts of this case and hence, the transfer order cannot be termed to a transfer by way of punishment. Further, as stated supra, in this case, enquiry was conducted and the petitioner was given opportunity to explain the charges levelled against him and on the basis of the enquiry report, the order was passed in the interest of the institution and the same cannot be questioned. Therefore, the judgments relied upon by the learned counsel appearing for the petitioner cannot be applicable to the facts of this case and in these judgments, there was no enquiry and only on the basis of the charges levelled against the petitioner, the order of transfer was passed. But in this case, it is not so and enquiry was conducted and on the basis of the enquiry report, the order of transfer was passed. Hence, it is not a punitive transfer, but against the transfer due to administrative reasons and hence, the order of transfer cannot be challenged in this writ petition. 21.In the result, the writ petition deserves to be dismissed and accordingly, it is dismissed. Consequently, connected Miscellaneous Petition is closed. No costs. er To 1.The Principal Secretary/Commissioner of Technical Education, Directorate of Technical Education, Guindy, Chennai-600 025. 2.The Principal in-Charge, Tamil Nadu Polytechnic College, Madurai. 3.Ms.Vijaya Mareeswari, Head of Department/Electronics Department, In-charge for Electrical Department, Tamil Nadu Polytechnic College, Madurai-625 011. 4.V.Subburaj, Senior Lecturer/Electrical, Tamil Nadu Polytechnic College, Madurai-625 011. 5.The Government Advocate, Madurai Bench of Madras High Court, Madurai.

C.Sengottuvel vs The Principal ... on 26 February, 2010

Madras High Court

SCA/8116/2008 24/ 24 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No.8116 of 2008 For Approval and Signature: HON'BLE SMT. JUSTICE ABHILASHA KUMARI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= SUFIYABANU INAYTULLA ANSARI & 4 - Petitioner(s) Versus STATE OF GUJARAT & 1 - Respondent(s) ========================================================= Appearance : MR TEJAS M BAROT for MR DHAVAL M BAROT for Petitioners MS MINI M NAIR, AGP for Respondent(s) : 1 & 3 MR MAHENDRA K PATEL for Respondent(s) : 2, ========================================================= CORAM : HON'BLE SMT. JUSTICE ABHILASHA KUMARI Date : 27/06/2008 ORAL JUDGMENTLeave to amend the cause-title of the petition is granted. The learned counsel for the petitioners is permitted to carry out the amendment forthwith. Rule. Ms.Mini M.Nair, learned Assistant Government Pleader, waives service of notice of Rule on behalf of the respondent No.1 and newly added respondent No.3. Mr.Mahendra K.Patel, learned counsel, waives service of notice of Rule on behalf of the respondent No.2. In the facts and circumstances of the case and with the consent of the learned counsel for the parties, the matter is heard and finally disposed of, today. This petition has been filed by the petitioners, who are engaged in the business of selling meat, chicken, mutton, eggs and other meat and poultry products from their shops situated in Mehsana. It is the grievance of the petitioners that the respondent No.2 ý Mehsana Nagarpalika has sealed the premises of the petitioners and taken away their goods without following due procedure of law. The petitioners have, therefore, prayed that the respondents may be directed to remove the seals from their shops, to return their goods and to compensate them for their losses. The brief facts of the case, as emerging from a perusal of the averments made in the petition as well as the documents annexed thereto, are that the petitioners have been carrying out their small businesses of selling meat, chicken, mutton, eggs and other meat and poultry products from their shops in Mehsana for the last more than fifteen to twenty years. It is averred in the petition that they are maintaining cleanliness and hygiene in their premises and there has never been any complaint regarding the goods sold by them. The allegation of the petitioners is that the respondent No.2 has caused harassment to the petitioners since the very beginning, without any valid reason and the petitioners have applied on several occasions to the respondent No.2 to issue them licences under the Bombay Shops and Establishments Act, 1948 (ýSthe Actýý for short) but the respondents have neither issued the licences nor have decided the applications of the petitioners which are annexed as Annexure-A (collectively) to the petition. It is the case of the petitioners that so far as petitioner No.1 is concerned, he was granted a licence under the provisions of the Act in the year 1999. However, this licence was cancelled by the respondent No.2 by order dated 27.11.2000. The petitioner No.1 challenged the order dated 27.11.2000 of the respondent No.1 before the Collector, Mehsana, by filing Dispute Case No.2 of 2001. The Collector, by order dated 12.2.2001, came to the conclusion that the order of the respondent No.2 was not in conformity with the provisions of Rule 50 of the Prevention of Food Adulteration Rules, 1955 (ýSthe Rules, 1955ýý for short), and the Meat Food Products Order, 1973, and by virtue of the proviso to Rule 50 of the Rules, 1955, the businesses of selling meat and poultry products such as those of the petitioners are exempted from the requirement of licences. The Collector further proceeded to stay the order dated 27.11.2000 of the respondent No.2 and directed the said respondent to take necessary action, after taking into consideration the relevant provisions of law. A copy of the order dated 12.2.2001 passed by the Collector is annexed as Annexure-B to the petition. It transpires from a reading of the averments made in the petition that the respondent No.2 challenged the order passed by the Collector by filing Revision Application No.16 of 2001 before the Secretary, Urban Development and Urban Housing Department, Gandhinagar. Since this was not the correct forum, the revision application was returned to the respondent No.2 with the stipulation that the said revision be preferred before the Director of Municipalities. In the meanwhile, the Collector, vide order dated 15.7.2002, directed the respondent No.2 to implement his order dated 12.2.2001. A copy of this order is to be found at Annexure-D to the petition. It is the case of the petitioners that the respondent No.2 has not taken any steps to challenge the order dated 12.2.2001 passed by the Collector and, on the other hand, they are not giving effect to the same. It is further averred that the respondent No.2 has, time and again, issued notices to the petitioners to close their shops, alleging that they are carrying out their businesses without licences but, at the same time, the applications of the petitioners for the grant of licences are not being decided by them, and neither are they adhering to the stipulations contained in the proviso to Rule 50 of the Rules, 1955. It transpires from the petition that on 7.6.2008, the respondent No.2, without any notice or intimation, came to the shops of the petitioners and took away their goods, utensils, weights, etc. and sealed their premises. According to the petitioners, no Panchnama or report of the items taken from the shops of the petitioners have been given to them. Being aggrieved by the abovesaid action of the respondent No.2, the petitioners have preferred the present petition, and sought the relief mentioned hereinabove. An affidavit-in-reply has been filed by the respondent No.2 dated 22.6.2008. It has been stated in the affidavit-in-reply that the petitioners are engaged in the business of selling mutton on the main road, thereby causing hindrance to traffic and nuisance to public. It is further stated that because of the smell of mutton, public health was also seriously affected and in spite of previous notices being issued to the petitioners, they continued their businesses and, therefore, their premises have been rightly sealed by the Municipality. It is also stated in the said affidavit that the petitioners are allotted the area known as ýSChhindivadýý of Kasba area for doing their businesses of selling mutton, fish, etc. but the petitioners are not doing their businesses at Chhindivad and are instead continuing with their businesses in an area where such activities are not permitted by the respondent No.2. It is further submitted that the respondent No.2 has received a number of complaints from the local residents of the area regarding the nuisance of smell suffered by them, which is affecting the health of the complainants. It is further reiterated that the petitioners are running their businesses without any licence/ permission being granted to them and since this action is illegal and unauthorized, their shops have rightly been sealed. A rejoinder to the affidavit-in-reply has been filed by the petitioners, reiterating the averments made in the petition and denying those made in the reply. Mr.Tejas Barot, learned advocate for Mr.Dhaval M.Barot, learned counsel for the petitioners, has submitted as under: (i) That Rule 50 of the Rules, 1955, specifically exempts the sale of meat and poultry products covered under the Meat Food Products Order, 1973, from the requirement of obtaining licences. It is submitted by him that the petitioner No.1 had been granted a licence under Section 7 of the Act, in the year 1999, which was revoked by the respondent No.2 by order dated 18.2.1999, on the ground that the licence under Rule 50 of the Rules, 1955, had not been obtained. The order of revocation was challenged by the petitioner No.1 before the Collector, who, by order dated 12.2.2001, stayed the order of revocation. It is urged by the learned counsel for the petitioners that the order of the Collector dated 12.2.2001 has not been set aside by the competent forum till date. The respondent No.2 preferred a revision application before the Deputy Secretary, Urban Development and Urban Housing Department, which was returned to it with the stipulation that the same may be preferred before the Director of Municipalities, but till date, no revision against the order dated 12.2.2001 has been preferred by the respondent No.2. (ii) That the petitioners Nos.2 to 5 have made applications for the grant of licences, which is evident from Annexure-A collectively at pages 10 to 18 of the paper-book. These applications have been made as far back as in the years 1996, 2000 and 2001, but till date, the respondent No.2 is neither deciding the applications of the petitioners nor is it permitting the petitioners from carrying out their businesses in spite of the fact that as per the provisions of Rule 50 of the Rules, 1955, there is no requirement of obtaining a licence for the sale of meat and poultry products. (iii) That the notices issued from time to time by the respondent No.2 have been duly replied to and the last notice which was issued, was in the year 2007. It is submitted that this notice dated 18.4.2007 has been issued on the ground that the business carried out by the petitioners is injurious to health and the petitioners were called upon to close their shops within seven days from the receipt of the same. This notice was replied to by the petitioners by reply dated 24.4.2007. It is emphasized by the learned counsel for the petitioners that thereafter, no action was taken for one year by the respondent No.2 and all of a sudden, on 7.6.2008, the respondent No.2 has sealed the premises of the petitioners without following the due procedure of law. It is emphasized that before sealing the premises of the petitioners, no notice has been given to them and no opportunity of hearing has been provided to the petitioners. On the above grounds, it is prayed that the petition deserves to be allowed. Mr.Mahendra K.Patel, learned counsel for the respondent No.2, has submitted that: (i) The action of the respondent No.2 in sealing the premises of the petitioners has been taken under the provisions of Section 221(2) of the Gujarat Municipalities Act, 1963, since the business carried out by the petitioners is a nuisance to the neighbourhood, dangerous to life, health and property, and, therefore, the action of sealing the premises of the petitioners does not suffer from any illegality. (ii) That the petitioners do not have licences under the provisions of the Act and, therefore, since they are carrying out their businesses in an illegal and unauthorized manner, their shops have rightly been sealed by the Municipality. (iii) That even though the petitioners have made applications for the grant of licences to the Municipality, the same have not been decided by the Municipality for the reason that the petitioners are carrying out their businesses unauthorizedly and, therefore, the licences were not to be granted to the petitioners It is, therefore, submitted that the petition be rejected. I have heard Mr.Tejas Barot, learned counsel for the petitioners, Mr.Mahendra K.Patel, learned counsel for the respondent No.2 and Ms.Mini M.Nair, learned Assistant Government Pleader for the respondents No.1 and 3 and have perused the averments made in the petition and the documents annexed thereto. The principal grievance of the petitioners is that their shops have been sealed by the respondent No.2 and their goods taken away, without following the due procedure of law. In this regard, it has been submitted by the learned counsel for the respondent No.2 that the action of sealing has been taken under the provisions of Section 221(2) of the Gujarat Municipalities Act, 1963. In this background, it will be fruitful to advert to the provisions of Section 221 which pertains to regulation of certain trades, and is reproduced hereinbelow: ýS221.(1) If it be shown to the satisfaction of the executive committee that any building or place used or intended by any person to be used - (a) for boiling or storing offal, blood, bones and range, (b) for salting, curing or storing fish, (c) for storing hides, horns, or skin, (d) for tanning, (e) for the manufacture of leather or leather goods, (f) for dyeing, (g) for melting tallow or sulphur, (h) for washing or drying wool or hair, (i) for manufacturing or preparing by any process whatever, bricks, pottery or line, (j) for soap making, (k) for oil-boiling or oil extracting, (l) as a manufactory of sageo, (m) as a distillery, (n) for storing hay, straw, fodder, wool, coal or other combustible material, (o) as a manufactory of snuff, (p) for the manufacture of sale of sweetmeats, (q) as a factory, workshop or place of business in which animals are employed or intended to be employed for doing work or in which steam, water or any mechanical power is used or intended to be used, (r) as a manufactory or place of business of any other kind, from which offensive or unwholesome smells arise, or which may involve risk of fire, (s) as a hair dressing saloon or a barber's shop or a Humam Khana, is or is likely to become by reason of such use and of its situation a nuisance to neighbourhood or is so used or is so situated as to likely to be dangerous to life, health or property, the executive committee may by written notice require the owner or occupier - (i) at once to discontinue the use of or at once to desist from carrying out or allowing to be carried out the intention so to use, such building or place, or (ii) to use it in such manner or after such structural alterations as the executive committee in such notice prescribes so that it may not become or may be no longer, a nuisance or dangerous. Explanation 1 ý For the purpose of clauses (q) and (r) nuisance shall include any contamination of the atmosphere whereby a deposit of soot is caused or any mechanical noise. Explanation 2 ý Nothing in clauses (q) and (r) shall be deemed to affect any provision of the Indian Boilers Act, 1923, or shall authorize any order relating to the fixing or fencing of any engine, mill-gearing, hoist or other machinery in any factory to which the provisions of the Factories Act, 1948, are applicable. Whoever after notice has been given under sub-section (1), uses any building or place or permits it be used in such a manner as to be a nuisance to the neighbourhood or dangerous to life, health, or property, shall be punished with fine which may extend to five hundred rupees, and with further fine which may extend to seventy-five rupees for every day on which such use or permission of use is continued after the date of the first conviction. Upon a conviction being obtained under this section, the Magistrate shall, on the application of the executive committee but not otherwise, order such place to be closed and thereupon appoint persons or take other steps to prevent such place being used for any purpose mentioned in sub-section (1). Whoever uses without licence or during the suspension or after the withdrawal of a licence, any place for any purpose mentioned in sub-section (1) in any municipal borough in which bye-laws are for the time being in force prescribing the conditions on or subject to which, the circumstances in which, and the areas or localities in respect of which, licences for such use may be granted, refused, suspended or withdrawn, shall be punished with fine which may extend to one hundred rupees and with further fine which may extend to twenty rupees for every day on which such use is continued after date of first conviction.ýý A perusal of Section 221(2), under which the action of sealing has purportedly been taken by the respondent No.2, makes it clear that whoever, after issuance of notice under sub-section (1), uses any building or place or permits it to be used in a manner so as to be a nuisance to the neighbourhood, dangerous to life, health or property, shall be punished with fine which may extend to five hundred rupees, and with further fine which may extend to seventy-five rupees for every day on which such use or permission of use is continued after the date of the first conviction. Section 221(1) provides that any building or place used or intended to be used for the purposes mentioned in Sections 221(1)(a) to (s) can be directed to be discontinued by the executive committee of the Municipality by service of a notice. Section 221(2) comes into play after the stage of issuance of notice, under Section 221(1) of the Act. A perusal of the provisions of Section 221(2) of the Act makes it clear that if, after the issuance of a notice under Section 221(1), the said building or place is used in a manner so as to be a nuisance to the neighbourhood, dangerous to life, health or property, the person using that building or place in such a manner will be levied a fine which may extend to Rs.500/-, with a further fine which may extend to Rs.75/- for every day on which such use is continued, after the date of first conviction. Section 221(3) provides that upon conviction being obtained under the Section, the Magistrate shall, on an application of the Executive Committee, but not otherwise, order such place to be closed and thereupon appoint persons or take other steps to prevent such place being used for any purpose mentioned in sub-section (1) of the Act. Admittedly, the procedure under the provisions of Section 221 of the Act has not been followed by the respondent No.2. This position is not disputed by the learned counsel for the respondent No.2. No notice has been given to the petitioners under Section 221(1), no fine been levied and there is no conviction under Section 221(3) in respect of the petitioners. Further, there is no order from the Magistrate for closure of the premises. The premises of the petitioners have been sealed on 7.6.2008, without any prior notice to them and without giving them an opportunity of being heard. The notice dated 18.4.2007 whereby the petitioners were called upon to close their shops within seven days on the ground of their business being injurious to health was replied to by the petitioners by reply dated 24.4.2007. Since no action was taken for over one year, it can safely be inferred that the respondent No.2 was satisfied by the reply given by the petitioners. No fresh notice was given thereafter. There is nothing on record to show that due procedure of law was followed before the action of sealing was undertaken by the respondent No.2. During the pendency of this petition, the respondent No.2 has returned the belongings of the petitioners on 26.6.2008, pursuant to the order of this Court dated 25.6.2008. The grievance of the petitioners, so far as the seizure of their belongings is concerned, has now been redressed. The only question which remains to be decided is regarding the legality, or otherwise, of the action of the respondent No.2 in sealing the premises of the petitioners. As stated hereinabove, due procedure of law has not been followed by the respondent No.2, inasmuch as no notice has been issued to the petitioners prior to sealing their premises and they have also been denied of an opportunity of hearing. In addition thereto, the action of the respondent No.2 in sealing the premises of the petitioners which, purportedly, has been taken under the provisions of Section 221(2) of the Act, does not conform to the requirements of the said sub-section and cannot be sustained in law. The procedure as detailed in Section 221 has not been followed by the respondent No.2 and even though it is submitted by the learned counsel for the respondent No.2 that the premises have been sealed under the provisions of Section 221(2), the requirements of Section 221, in its entirety have been totally ignored by the respondent No.2. In my considered view, therefore, the action of the respondent No.2 in sealing the premises of the petitioners, is not sustainable in law. At this stage, it would also be pertinent to refer to Rule 50 of the Rules, 1955, which is reproduced hereinbelow: ýS50. Conditions for licence ý (1) No person shall manufacture, sell, stock, distribute or exhibit for sale any article of food, including prepared food or ready to serve food or irradiated food except under a licence: Provided that the fruit products covered under the Fruit Products Order, 1955, solvent extracted oil, deoiled meal and edible flour covered under the Solvent Extracted Oil, De-oiled Meal and Edible Flour (Control) Order, 1967, vanaspati covered under the Vegetable Oil Products (Regulation) Order, 1998, and meat and poultry products covered under the Meat Food Products Order, 1973, shall be exempted from the above rule: Provided further that a producer of milk, who sells milk only to a milk cooperative society which is a member of milk co-operative Union engaged in reconstitution of milk or manufacture of milk products, shall be exempted from this sub-rule: Provided also that no person shall manufacture, sell, stock, distribute or exhibit for sale any article of food which has been subjected to the treatment of irradiation, except under a licence from Deptt. Of Atomic Energy (Control of Irradiation of Food), under the Atomic Energy Act, 1962 (Act 33 of 1962)....ýý A perusal of the contents of Rule 50 read with the first proviso, makes it clear that the requirement of obtaining a licence to manufacture, sell, stock, distribute or exhibit for sale any article of food, in respect of meat and poultry products covered under the Meat Food Products Order, 1973, is exempted. It is on the basis of this Rule that the Collector has stayed the revocation of the licence of the petitioner No.1 vide order dated 12.2.2001. The decision of the Collector has not been challenged by the respondent No.2 and in spite of the letter of the Collector dated 15.7.2002 to the Chief Officer of the respondent No.2 ý Municipality, to give effect to his order and take action in accordance with law, the respondent No.2 has not taken any action for granting licences to the petitioner No.1 or the other petitioners. On one hand, the respondent No.2 is raising the contention that the petitioners are carrying on their businesses without licences and on the other hand, the said respondent is sitting tight upon the applications of the petitioners for the grant of licences, for the past so many years. In effect, the respondent No.2, is itself creating a situation in which the petitioners are carrying on their businesses without licences. Neither are the licences being granted to the petitioners and nor are they being refused. Similarly, neither is the order of the Collector being given effect to and nor has it been challenged by the respondent No.2 before the competent forum. In the above situation, the order of the Collector dated 12.2.2001 is binding upon the respondent No.2. Not only are the applications of the petitioners not being decided, but a submission is being advanced that the applications are not being decided, because the licences are not to be granted. I am unable to understand how such a submission can be made, since it is only after decision of the applications, in accordance with law, that the result of the decision can be known, and the same cannot be presumed or pre-judged before decision. In the light of the above discussion, the submissions made by the learned counsel for the respondent No.2 do not inspire the confidence of this Court, and cannot be accepted. An averment has been made in the affidavit-in-reply filed by the respondent No.2 that the petitioners are allotted the area known as Chhindivad, for doing their businesses of selling meat, fish, eggs, etc. However, there is nothing on record to make good this averment. No orders of allotment have been produced along with the affidavit-in-reply, to show that the petitioners have been allotted land at Chhindivad. In the light of the facts and circumstances discussed hereinabove, and in view of the relevant provision of law, I am of the considered view that the action of the respondent No.2 in sealing the shops of the petitioners is not sustainable in law and has been taken without resorting to the due procedure of law and without following the principles of natural justice. The petition, therefore, deserves to be allowed, in part. Accordingly, it is partly allowed. The respondent No.2 is directed to open the seals on the shops of the petitioners, forthwith. The petitioners are permitted to carry on their businesses from their shops, subject to their maintaining hygienic conditions and ensuring that no nuisance is caused to the public at large. It is open to the respondent No.2 to take a decision, in accordance with law, on the applications for the grant of licences of the petitioners. The petition is disposed of in the above terms. Rule is made absolute, to the above extent. There shall be no orders as to costs. Direct Service is permitted. (Smt.Abhilasha Kumari, J.) (sunil)

Sufiyabanu vs State on 27 June, 2008

Gujarat High Court

CENTRAL INFORMATION COMMISSION Club Building (Near Post Office) Old JNU Campus, New Delhi - 110067 Tel: +91-11-26161796 Decision No. CIC/SG/C/2010/001222/10504 Complaint No. CIC/SG/C/2010/001222 Complainant : Mr. Amar Singh, H. No. E-39, Gali No. 26, D Khajun Wala Road, Moald Bund Vistar Badarpur, New Delhi- 66. Respondent : Public Information Officer, O/o Dy. Commissioner, Central Zone, Municipal Corporation of Delhi, Lajpat Nagar-II, New Delhi. Facts arising from the Complaint: Mr. Amar Singh had filed a RTI application with the PIO, MCD (Central Zone), Delhi on 14/08/2010 asking for certain information. However on not having received the information within the mandated time, the Complainant filed a complaint under Section 18 of the RTI Act with the Commission. On this basis, the Commission issued a notice to the PIO, MCD (Central Zone), Delhi on 12/10/2010 with a direction to provide the information to the Complainant and further sought an explanation for not furnishing the information within the mandated time. The Commission has neither received a copy of the information sent to the Complainant, nor has it received any explanation from the PIO for not supplying the information to the Complainant. Therefore, the only presumption that can be made is that the PIO has deliberately and without any reasonable cause refused to give information as per the provisions of the RTI Act. Failure on the part of the PIO to respond to the Commission's notice shows that there is no reasonable cause for the refusal of information. Decision: The Complaint is allowed. In view of the aforesaid, the PIO is hereby directed to provide the complete information in regard to the RTI Application dated 14/08/2010 to the Complainant before 02/01/2011 with a copy to the Commission. From the facts before the Commission, it appears that you have not provided the requisite information within the mandated time and has failed to comply with the provisions of the RTI Act. The delay and inaction on the PIO's part in providing the information amounts to willful disobedience of the Commission's direction as well and also raises a reasonable doubt that the denial of information may be mala-fide. The PIO is hereby directed to present himself before the Commission on 13/01/2011 at 03:00 pm along with his written submissions to show cause why penalty should not be imposed and disciplinary action be recommended against him under Section 20 (1) and (2) of the RTI Act. Further, the PIO may serve this notice to such person(s) who are responsible for this delay in providing the information, and may direct them to be present before the Commission along with the PIO on the aforesaid scheduled date and time. If the information has already been supplied to the complainant, bring a copy of the same to the Commission with your written submissions, and also proof of seeking assistance from other person(s), if any. Notice of this decision be given free of cost to the parties. Any information in compliance with this order will be provided free of cost as per section 7(6) of RTI, Act, 2005. Shailesh Gandhi Information Commissioner 20 December 2010 Encl: RTI Application dated 14/08/2010. (In any correspondence on this decision, mention the complete decision number.)(SC)

Mr.Amar Singh vs Mcd, Gnct Delhi on 20 December, 2010

Central Information Commission

Court No. - 35 Case :- WRIT - C No. - 38677 of 2010 Petitioner :- Ram Lakhan And Others Respondent :- State Of U.P. & Ors. Petitioner Counsel :- S. Pratap Singh Respondent Counsel :- C.S.C. Hon'ble Vineet Saran,J. Hon'ble Ran Vijai Singh,J. The case of the petitioners is that their land is being encroached for construction of road. It does not relate to any acquisition of land under the Land Acquisition Act and as such this Bench would not have jurisdiction to entertain this writ petition. Put up as a fresh case day-after-tomorrow dated 9.7.2010 before the appropriate Bench. Order Date :- 7.7.2010 p.s.

Ram Lakhan And Others vs State Of U.P. & Ors. on 7 July, 2010

Allahabad High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5939 of 2010 KUMARI RUPAM Versus THE STATE OF BIHAR & ORS ----------- Arvind/ ( J. N. Singh, J.) 2 07.12.2010 Learned counsel for the respondents prays for and is granted one week time to file counter affidavit in the case. Put up after one week.

Kumari Rupam vs The State Of Bihar &Amp; Ors on 7 December, 2010

Patna High Court - Orders

JUDGMENT 1. These two Rules are directed against a conviction of the petitioners under Section 188, Indian Penal Code. They were convicted on two trials; but the appeals against the conviction were beard jointly by the learned District Magistrate of Dinajpore. The convictions, were based on the disobedience of an order under Section 144, Criminal Procedure Code, which was passed by the Sub-Divisional Magistrate of Thakurgaon forbidding the people in general especially the proprietor of Nitbazar hat contiguous to Lahiri hat which was owned by a different proprietor to hold the Nitbazar hat on Mondays and Fridays, At the hearing of the appeals, it was urged that there was no necessity of an order under Section 144 of the Code of Criminal Procedure. The question of the legality of the order does not appear to have been properly considered by the lower Appellate Court. That Court appears to have held that the order must be held to have been legally passed because an application to the High Court against that order failed. But the application was rejected by this Court on the ground that at the time it was made the period of the order had elapsed and it was staled when the order was pasted that the question of the legality of the order could be raised at the trial of the petitioners should they be prosecuted under Section 188, Indian Penal Code. We, therefore, direct that the orders passed by the Appellate Court in there two cases be set aside and the appeals be re-heard. We thick it desirable, as requested by the petitioner's Vakil, that the appeals should be re-heard not by the District Magistrate but by the Sessions Judge; and we order accordingly.

Jiaratdin Mohammed And Ors. vs Emperor on 15 September, 1921

Calcutta High Court

JUDGMENT V.A. Mohta J. 1. Under section 256(1) of the Income-tax Act, 1961 ("the Act"), the Income-tax Appellate Tribunal has referred the following questions at the instance of the Revenue : "(1) Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in holding that the false ceilings and other accessories costing Rs. 2,65,240 were part of the 'fittings' and consequently in directing the Income-tax Officer to grant depreciation allowance thereon at 15 per cent. as against 2 1/2 per cent. allowed by the Income-tax Officer ? (2) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in law in holding that the chairs installed in the auditorium should be treated as 'plant' and in directing the Income-tax Officer to grant development rebate thereon for the assessment year 1973-74 ?" 2. The assessee owns twin cinema theatres "Badal" and "Bijili", in the metropolitan city of Bombay. The business of exhibiting films to the public is carried on there. The theatres are modern, fitted with false ceilings and other accessories to meet the acoustic requirements, costing Rs. 2.65 lakhs. The assessee claimed depreciation under section 32 of the Act at the rate of 15 per cent., on the basis that they were part of the fittings in the theatres. The Income-tax Officer treated them as decorative fixtures and fittings and as a part of the building and granted depreciation only at the rate of 2 1/2. The Appellate Assistant Commissioner confirmed the said order. But, the Tribunal upheld the stand of the assessee. 3. In the auditorium are fixed cozy chairs for the viewers costing Rs. 1,99,898. The assessee claimed development rebate under section 33 on the basis that those chairs were "plant" as contemplated under the provisions. The Income-tax Officer rejected the claim. The Appellate Assistant Commissioner confirmed the order of the Income-tax Officer. The Tribunal, however, upholding the stand of the assessee, granted development rebate as claimed. 4. It seems to us that having regard to the purpose for which the fixtures were fitted, they must be treated as a part of the "fittings" and not part of the building and, hence, the correct rate of allowable depreciation would be 15 per cent. as granted by the Tribunal. It also seems to us that the chairs for the auditorium are "plant" and not a part of the building. The word "plant" is not defined under section 43(3) of the Act. Considering its inclusive nature and the whole context, it has been given wide and liberal meaning by consistent judicial pronouncements made from time to time. The functional test has been held to be the ideal test for interpreting the said word. Cinema theatres have to comply with several laws and regulations including about sitting arrangement for the viewers. The chairs in the auditorium are essentially functional in nature, being an integral part of the exhibition of films. Even a building or a part thereof can constitute "plant" depending upon the function of the subject-matter in the whole context. The acid test is whether it constitutes an apparatus or a tool of the assessee or whether it is merely a space to carry on the business. 5. In this connection, useful reference may be made to the decision of the Supreme Court in the case of CIT v. Taj Mahal Hotel [1971] 82 ITR 44, wherein, sanitary and pipe-line fittings in a hotel were treated as "plant" by applying the functional test. The Karnataka High Court, in the case of Santosh Enterprises v. CIT [1993] 200 ITR 353, has also taken a view that chairs in the auditorium of a cinema theatre are "plant". We are in respectful concurrence with the said view. 6. Under the circumstances, both the questions are answered in the affirmative and in favour of the assessee. 7. There will be no order as to costs.

Author: V Mohta

Commissioner Of Income-Tax vs N.L. Mehta Cinema Enterprises ... on 15 March, 1993

Bombay High Court

[Complete Act]

Central Government Act

IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.20338 of 2010 DEEPAK PASWAN SON OF RAM PRASAD PASWAN, RESIDENT OF GANDHI TOLA ( Baghmara) P.S. Manihari, District Katihar --Petitioner. Versus STATE OF BIHAR---- Opp. Party. ----------- For the petitioner : Mr. Binod Kumar, Advocate. For the State : Mr. Abha Singh, A.P.P. 2/ 16.06.2010 Heard the parties. In a criminal prosecution for offences under sections 406, 420, 409, 467 and some other allied offences of the Indian Penal Code, the petitioner and few other persons are named in the F.I.R. as accused. From perusal of the F.I.R. vide Annexure-1 it appears that the main allegation of committing irregularity for grant of benefits under Indira Awas Scheme is against Mukhiya and the Panchayat Secretary. The petitioner is said to be the husband of a Ward Member and he is alleged to have acted on their behalf for collecting certain money from the beneficiaries. It is submitted that as a matter of fact the petitioner was not responsible for allotment of benefits under the Indira Awas Scheme and as such at best he can be termed as a middleman. It is further submitted that co- accused Rupesh Paswan, with almost similar and identical allegation, has been granted bail by a Bench of this Court by order dated 08.05.2009 passed in Cr. Misc. No. 8755 of -2- 2009, Annexure-4. The petitioner is stated to be in judicial custody since 22.04.2010. In the aforesaid facts and circumstances, let the above named petitioner be enlarged on bail on furnishing bail bond of Rs. 10,000/- with two sureties of the like amount each to the satisfaction of Chief Judicial Magistrate, Katihar in connection with Manihari P.S. Case No. 99 of 2008. ( Birendra Prasad Verma, J ) BTiwary/

Deepak Paswan vs State Of Bihar on 16 June, 2010

Patna High Court - Orders

,: ;sALis;.D01§'1«'1L;r;1< %% A 3 D ASST REGISTRAR IN THE HIGH COURT OF ' ~ DATED THIS THE isr DAY % % . VA THE HON'BLI3 MR. DAAm WRIT pE'r:rm N9 % 2003 (CS 4?" 9). BETWEEN: . 1 SR! 3/0 :3IDl3t1PPA.AWATI AGE 56 AGREL R/Q_'BlLAGfA:f1fQ BILAGI DIST DBAc3Am~?OT~%5-87 10 1 D _ PETITIONERS. (By Sri Y R Jo<}1,*ADv, A1511: = % fl -4 DILAGzDP}s'I'TANA SAHAKARI BANK LTD BILAGI ' HA.§JING1T5 OFFICE/REGISTERED OFFICE ATABILAGI-'J£3Y3I'I'S SECRETARY/GENERAL MANAGEF: _EliLAGI PATTANA SAHAKARI BANK LTD L V D;<Am;a.D1LAu1 _'D1LA.c?é1 PATTANA SAHAKARI BANK LTD '~~'i:5£E,AG£ ' " CO---OPERATIVE SOCIETY AND RECOVERY ()l4'l*'ICER JAMKHANDI 4 SIDDAPPA S/O GADIGEPPA AWATI AGE 74 YEARS 1 _ use AGRIL " R/0 BILAGI 5 SIDDALINGAPPA % L s/0 SIDDAPPA AWATI AGED mom so%YEARs%%% occ AGRILR/0BIs.AG1 ' DIST BAGALKOT ~ = & A 6 I-IUSANAPPA 3/0'GAD£GEPfPA MALLENNAVAR AGED ABO{'fF'38:YEARS " ' R/0 H9NNYAL'TQ_B1i'»AGi 7 BA1.CHAN})RPx. _ A' 3 W/0 xSP=NGAPPfi D3531 AGED A_BC!UT_ 50 (sec; BUS£Ni2ISS % v_.»;:g/Q'3QNNA*.... ..... - _ 'Now A"P.BII.AGITQ BILAGI A DJMBAGALKOT-587101 RESPONDENTS.Mr. (3. (ma fi..G.A. is permitted to tile memo of ' '4--'r"'R Judge the sale proclwtiml docs s J _ my sn<G.%:r3HAN;3RAsHEKARA1AH, AGA FOR R3; § * k ksm§'.v.%PAT1L, ADV. FOR R1; -SR1 rev. HIREMATH, ADV. FOR R7; % SR1" 'RAVEENDRA BSANKANATFI, ADV. FOR R4 TO R6.) » , THIS W.P. FILED UNDER ARTICLES 226 AND 227 OF THE CONSTFFUTION, PRAYING TO QUASH THE ANNEXS. DT5. 4.12.2008 ISSUED BY R2 WITH REGARD TO S.NO.91/2A MEASURING AREA 5 ACRE AND 91/QB, MEASURING 3.17 ACRES SITUATED AT BILAGI VILLAGE, IN FAVOUR OF AUDITION PURCHASOR - R7. DIRECT 121,2 AND 3 AI.L(}°'i"'vTifw!:Ié';":: PROPERTY TO THE PE'I'1'l'I!i)NERg IN. .SY«_NO;91}!.2A;._ MEASURING AREA 5 ACRES :f*ANI3._ ".S1{ONB¢'l':g.]2B, MEASURING 3-1'7 ACRES Sl'I'UA'i'ED_ AT BILAGI VILLA{}E THIS PETITION c0MI1§G 0154 f?OR:,_AAPl§LEIJMINARY HEASRING IN 'B' (312021? '.;f'I-II_B*I)AY',A.THE COURT MADE THE FOLLOWING: I I . The counsel appcming for the, ::;A:i:3 prociamation is not in wmbrfinty (II) and (g) of the (3o~opeI'ativc Societies 4VAsI;'hezI'iits that no clear 30 days name' is t1Ié"'sa.id..pz'oclamati0n to bring the property to Patil, learned counsel appearing fan" the fimt V A submits that the pctit:ionm' has sufibmd m V. a'§I;i'a1'd and that has attained fimality. He further sumits . u that the petitioner is the signatory to the loan" documents. He further submits that the sale proclanaaflon is in accordance with law, in as much as, 30 days2§.._é:lc:_ae..v{ is." given. 3. It is not in dispute the had borrowed certain amo1,:ni;_ of j' the bank. He mortgaged in favour of the bank. was renewed and the of the documents relatingi'Vto'_Vthe It is no doubt true that the. the correctness of those documents, 'if; according to him, he has not tirie 'sa;_ne.' however, such a plea cannot be simple reason that when a dispute was V 70 of the Co--opcratNc' Societnlcs Act ' " iarbitrator, the petitioner was a party, in m much A 'htrovas rcespondent-3 in the said . Indeed, ':'_4'{:lr:er§docume11ts which the petitioner disputes were also the "Subject matter of the dispute. Hence, it is not open for the petitioner now to contmld that the sigxatures on the wk! documents are fabricated. 4. In so far as non-compliance Met" ((2) (d) and (g) is concerned, itiis respondents have issued R15. A perusai of clearly disclose that the T . was issued on 26.12.2007 witttthe Thus, there is a clear the property to sale. Hence, counsel ' for the petttiener fioclamatimx is in violation of Rule 33(2) V[d)_Vaz1cixV'(g= Rum cannot. be accepted and is . to be 'trejetitetl at1"ci*'aQc9;'di11gly it is rejected. 5. " . It to my notice tlrat the petitioner has a in 0.3. No. 12/03 for declaration and for t reliefs. The said suit is still pending. Having V' to the fact that the petitioner has end the cm!' he ean work out his remedy before the civil court. But, however, so far as present proceedings are , since both the contentions urged by the petitioner regarding non-compliance of mandatory provisions of rule 3812) (d) axgd Sd/-13., (g) faii, I am of the View that the <_;ucs_t;iontif rejected. Application for ' :E2!)t.. §SLE'ViVB fix' ccmsidcration. Regiected; V '.

Author: Ajit J Gunjal

Sri Mallappa S/O Siddappa Awati vs Bilagi Pattana Sahakari Bank Ltd ... on 1 April, 2008

Karnataka High Court

JUDGMENT K.S. Paripoornan, J. 1. At the instance of an assessee to income-tax, the Income-tax Appellate Tribunal has referred the following question of law for the decision of this court: "Whether, the Tribunal was right in finding that 'the unregistered written agreement dated January 26, 1973, is a sale itself and that, therefore, the capital asset was transferred on January 26, 1973, for a specific price of Rs. 6,25,000' and was the Tribunal right in finding that 'the capital gain is to be assessed on that basis' ?" 2. We are concerned with the assessment year 1973-74. The respondent is the Revenue, The assessee herein is the owner of an estate, along with her father-in-law. By a deed dated January 26, 1973, the owners of the estate, the assessee and her father-in-law, sold the trees in the estate to one S.K. Abdul Wahab. The question arose as to whether the deed dated January 26, 1973, is only an agreement to sell or a sale itself. The assessing authority held that the deed represented a sale of specific assets (trees in a specified area). The Appellate Assistant Commissioner reversed the said decision. The Income-tax Appellate Tribunal, following its earlier decision in I. T. A. No. 241-293/Coch of 1976-77 dated December 18, 1978, held that there was a sale of the specific trees standing in the specified area in the schedule and capital gains exigible to tax arose during the relevant accounting period relevant to the assessment year 1973-74. The order of the Appellate Tribunal, dated December 18, 1978 in I. T. R. Nos. 241-293/ Coch. of 1976-77 was the one rendered in the case of the other co-owner, the father-in-law of the assessee. At the instance of the other co-owner, a question of law, similar to the one formulated herein, was referred to this court in I. T. R. No. 107 of 1987 (M.D. Joseph v. CIT [1990] 187 ITR 112). By a separate judgment delivered today, we have held therein that the unregistered written agreement dated January 26, 1973, is a sale itself. We have declined to answer the other limb of the question in view of the order of remit made by the Appellate Tribunal dated December 18, 1978. Our reasoning and conclusion in I. T. R. No. 107 of 1987 (M.D. Joseph v. CIT [1990] 187 ITR 112) squarely applies to this case as well. 3. In the light of our decision in I. T. R. No. 107 of 1987 (M.D. Joseph v. CIT [1990] 187 ITR 112 (supra)), we hold that the Appellate Tribunal was justified in rinding that the unregistered written agreement dated January 26, 1973, is a sale itself. We answer this aspect of the question in the affirmative, against the assessee and in favour of the Revenue. 4. We decline to answer the other limbs of the question. Our decision in I. T. R. No. 107 of 1987 (M. D. Joseph v. CIT [1990] 187 ITR 112) will apply with equal force herein also regarding those aspects. We make this position clear. 5. The reference is answered against the assessee and in favour of the Revenue. 6. A copy of this judgment under the seal of this court and the signature of the Registrar will be sent to the Income-tax Appellate Tribunal, Cochin Bench.

Author: K Paripoornan

Elizabeth Joseph vs Commissioner Of Income-Tax on 27 June, 1990

Kerala High Court

CASE NO.: Appeal (crl.) 1672 of 1996 PETITIONER: KESHUB MAHINDRA RESPONDENT: STATE OF M.P, DATE OF JUDGMENT: 13/09/1996 BENCH: AM. AHMADI, CJI & S.B. MAJMUDAR JUDGMENT: JUDGMENT 1996 Supp.(6) SCR 287 The Judgment of the Court was delivered by S.B. MAJMUDAR, J. Leave granted in all these Special Leave Petitions. In these appeals the concerned appellant-accused have brought in challenge the order dated 8th April 1993 passed by the Court of 9th Additional Sessions Judge, Bhopal in Sessions Trial No. 257 of 1992 whereby the learned Sessions Judge framed charges against the appellants in appeals arising out of S.L.P. (Crl.) Nos. 3900 of 1995, 3901 of 1995 and 3953 of 1995 under Sections 304 Part II, 326, 324 and 429 read with Section 35 of the Indian Penal Code (for short 'IPC ') and framed charges under Sections 304 Part II; 326, 324 and 309 against the appellants in appeal arising out of S.L.P. (Crl.) No. 3932 of 1995. They had also challenged the orders of the High Court of Madhya Pradesh at Jabalpur in Criminal Revision Application Nos. 237/93,238/93, 312/93 and 311/93 whereby these charges were sustained. Appeal arising out of S.L.P. (Crl.) No. 3900 of 1995 is moved by Shri Keshub Mahindra who is accused No. 2 before the Sessions Court. Appeal arising out of S.L.P. (Crl.) No. 3901 of 1995 is moved by Shri V.P. Gokhale who is accused No. 3 in the same case. Appeal arising out of S.L.P. (Crl.) No. 3953 of 1995 is moved by Kishore Kamdar who is accused No. 4 in the said case while the last appeal arising out of S.L.P. (Crl.) No. 3932 of 1995 is moved by six accused being Shri J. Mukund accused No. 5, Dr. R.B. Roy Choudhary accused No. 6, Shri S.P. Chaud-hary accused No, 7, Shri K.V. Setty accused No. 8, Shri S.I. Qureshi accused No. 9 and Union Carbide India Limited ('UCTL' for short) accused No. 12 in the same case pending before the Sessions Court at Bhopal. The concerned appellants had moved the High Court of Madhya Pradesh at Jabalpur under Sections 397 and 482 of the Code of Criminal Procedure .(Cr. P.C.) for quashing the aforesaid charges. With a view to highlighting the grievances of the appellants a few relevant facts deserve to be noted at the outset. Introdactory Facts A grim tragedy of unprecedented nature occurred at Bhopal on the night intervening 2nd December 1984 and 3rd December 1984 wherein between 0030 hours and 0045 hours a highly dangerous and toxic gas called MIC escaped from tank No. E610 from the Bhopal factory belonging to accused No. 12 UCIL. As a result of this leakage 3828 human beings lost their lives while permanent injuries were caused to 18922 human beings, temporary disablement was suffered by 7172 human beings, temporary disablement caused by permanent injury was suffered by 1313 persons while permanent partial disablement was suffered by 2680 persons, While 40 human beings suffered from permanent total disablement and the death toll of animals amounted to 2544. This ghastly tragedy has come to be known as 'Bhopal Gas Tragedy'. After the gas leakage Criminal Case No. 1104 of 1984 was registered at the Police Station Hanumanganj, Bhopal on 3rd December 1984 by the Station House Officer sou motu. This case was registered under Section 304-A, IPC. In the said case 12 accused were indicted. Accused NO. 1 was Shri Warren Anderson who was the Chairman of Union Carbide- Corporation. The said concern was also indicted as accused No. 10, Accused No. 2 Keshub Mahindra was the Chairman of UCIL which in its turn Was shown as accused No. 12. Accused No. 3 V.P. Gokhale was shown as an accused in his capacity as Managing Director of UCIL. Kishore Kamdar who was the Vice President and Incharge of A.P. Division of UCIL was shown as accused No. 4. Shri J. Mukund the Works Manager of the Bhopal Plant was joined as accused No. 5. Dr. R.B. Roy Choudhary who was Assistant Works Manager, A.P. Division, UCIL at Bhopal was joined as accused No. 6. Accused No, 7. was Shri S.P. Choud-hary, Production Manager of the Bhopal Plant. Shri K.V. Shetty, Plant Superintendent of the said Bhopal plant was accused No. 8, Shri S.I. Qureshi was shown as accused No. 9: He was Production Assistant at the said Bhopal plant. Out of the above accused persons accused Nos..5, 6, 7, 8 and 9 were stationed at Bhopal and were incharge of the Bhopal Plant itself. On the registration of the aforesaid Crime Case the Station House Officer, Bhopal, arrested five employees of the factory, namely, accused Nos. 5 to 9 and they were kept in police custody. Accused Nos. 1, 2 and 3 were arrested on 7th December 1984. Out of them accused No. 1 Shri Warren Anderson was released on bail the same day. On 6th of December 1984 the case was handed over to the CBI On completion of investigation the chargesheet was presented by the CBI in the Court of CJM, Bhopal on 1st December 1987, In the present proceedings we are not concerned with the question of compensation payable to the gas-disaster victims at Bhopal and the various steps taken by the Government of India in this connection. We, therefore, do not dilate on these aspects. Suffice it is to state that by earlier orders of this Court dated 14th February 1989 and 15th February 1989 all criminal proceedings relating to arid arising out of the Bhopal Gas Disaster were quashed by this Court. As a result the proceedings in the present case which were then pending in the Committal Court stood terminated. How-ever the said order was reviewed by this Court on 3rd October 1991 and the above criminal proceedings were restored. After their restoration the case was committed to the Court of Sessions. Commitment was made by order dated 30lh April 1992. On the case being committed to the Court of Sessions it was registered as Sessions Trial Case No. 237 of 1992 as aforesaid. It appears that trial of the criminal case against accused No. 1 Warren Anderson, accused no. 10 UCC and accused No. 11 Union Car-bide (Eastern) Inc., Hongkong had to be segregated and split up as the concerned accused were absconding. The trial proceeded against remain-ing accused Nos, 2 to 9 and 12. In the light of the supporting material produced by the prosecution before the Sessions Court along with the chargesheet and its contents the Sessions Court was requested by the prosecution to frame appropriate charges against the concerned accused against whom the trial had to proceed. After hearing the prosecution as well as the learned counsel for the concerned accused the learned 9th Additional Sessions Judge, Bhopal passed order dated 8th April 1993 framing charges against the concerned accused. As these charges have been seriously brought into challenge it would be apposite to reproduce the charges as framed by the learned Trial Judge against the concerned accused. So far as accused No, 2 Keshub Mahindra is concerned four charges were framed against him as under : "Firstly : That on or about the night intervening 2nd and 3rd December, 1984 at Bhopal, the Capital of M.P. co-accused persons S/Shri Kishore Kamdar/J, Mukund/R.B. Roy Choudhary/S.B. Choudhary/K.V. Setty and S.I. Qureshi committed culpable homicide not amounting to murder by causing death of 3828 or more human beings by allowing the highly toxic gas known by the name of MIC to escape from tank No. 6l0 of A.P. Division plant of UCIL knowing that it was likely to cause deaths and you sharing this common knowlege with them did not do anything to avoid the said escape of gas thus you thereby committed on each courts an offence punishable under Sec. 304 (II) R/W Sec. 35 of the IPC and within the cognizance of the Court of Session. Secondly : That on the above date and at the above place, above co-accused persons by allowing to escape from the above tank the corrosive substance known by the name of MIC gas, knowing that it was likely to cause grevious hurts, thus voluntarily (as defined U/S 39 IPC) caused grevious hurts to 21694 or more human beings and you sharing this common knowledge with them did not do anything to avoid the said escape of gas thus you thereby com- mitted on each count an offence punishable under section 326 R/W Sec. 35 IPC and within the cognizance of the Court of Sessions. Thirdly: That on the above date and at the above "place, co-accused persons by allowing to escape from the above tank the corrosive :substance known by the name of MIC gas knowing that it was likely to cause hurts, thus voluntarily (at defined Under Sec. 39 IPC) caused hurts to 8485 or more human beings and you sharing this common knowledge with them did not do anything to avoid the said escape of gas, thus you thereby committed on each count an offence punishable U/S 324 R/W See. 35 IPC and within the cognizance of the Court of Sessions. Fourthly: That on the above date and at the above place the above accused persons by allowing MIC gas to escape from the above tank knowing that it was likely to cause death of animals, com-mitted mischief by killing thereby 2544 or more animals of various descriptions each valuing more than Rs. 50 and you sharing this common knowledge with them did not do anything to avoid the said escape of gas, thus you thereby committed on each count an offence punishable U/S 429 R/W Sec. 35 IPC and within the cognizance of the Court of Sessions." Charges framed against accused No. 3 V.P Gokhale were identical with the charges framed against accused No. 2. Charges framed against accused No, 4 Kishore Kamdar ran as under: "Firstly : That on or about the night intervening 2nd and 3rd December, 1984 at Bhopal, the Capital of M.P, co-accused persons S/Shri Kishore Kamdar/J. Mukund/R.B. Roy Choudhary/S.P. Choudhary/K.V, Shetty and S.I. Qureshi committed culpable homicide not amounting to murder by causing death of 3828 or more human beings by allowing the highly toxic gas known by the name of MIC to escape from tank No, 610 of A.P. Division Plant of UCIL knowing that this common knowledge with them did not do any thing to avoid escape of gas thus you thereby committed on each count an offence punishable U/S 304(II) R/W Sec. 35 of the I.P.C. and within the cognizance of the court of Sessions. Secondly : That on the above date and at the above place, above co-accused persons by allowing to escape from the above tank the corrosive substance known by the name of MIC gas, knowing that it was likely to cause grevious hurts, thus voluntarily (as defined U/S 39 IPC) caused grevious hurts to 21694 or more human beings and you sharing this common knowledge with them did not do anything to avoid the said escape of gas, thus you thereby committed on each count an offence punishable U/S 326 R/W Sec, 35 IPC and within the cognizance of the Court of Sessions, Thirdly : That on the above date and at the above place, above co-accused persons by allowing to escape from the above tank the corrosive substance known by the name of MIC gas, knowing that it was likely to cause hurts, thus voluntarily (as defined U/S. 39 IPC) caused hurts to 8485 or more human beings and you sharing this common knowledge with them did not do anything to avoid the said escape of gas, thus you thereby committed on each count an offence punishable U/S. 324 R/W Sec. 35 IPC and within the cognizance of the Court of Sessions. Fourthly ::That on the above date and at the above place, the above co- accused persons by allowing MIC gas to escape from the above tank knowing that it was likely to cause death of animals, com-mitted mischief by killing thereby 2544 or more animals of various descriptions each valuing more than Rs. 50 and you sharing this common knowledge with them did not do any thing to avoid the said escape of gas, thus you thereby committed on each count art offence punishable U/S. 429 R/W Sec. 35 IPC and within the cognizance of the Court of Sessions." Charges framed against accused No 5 J, Mukund were as under ; "Firstly : That you on or about the night intervening 2nd and 3rd December, 1984 at Bhopal, the capital of M.P. committed culpable homicide not amounting to murder by causing death of 3828 or more human beings by allowing the highly toxic gas known by the name of MIC to escape from tank No. 610 of A:P. Division Plant of UCIL, knowing that it was likely to cause deaths and you thereby committed on each count an offence punishable U/S 304(II) I.P.C. and within the cognizance of the court of Sessions. Secondly : That you on the above date and at the above place by allowing to escape from tank No. 610 of the A.P. Division Plant of UCIL, a corrosive substance known by the name of MIC gas, knowing that it was likely to cause grevious hurts, thus voluntarily (as defined U/S, 39 IPC) caused grevious hurts to 21694 or more human beings and, thereby committed on each count an offence punishable U/S. 326 IPC and within the cognizance of the Court of Sessions. Thirdly: That on the above date and at the above place by allowing to escape from tank No. 610 of .A.P. Division Plant of UCIL, a corrosive substance known by the name of MIC gas, knowing that it was likely to cause hurts, thus voluntarily (as defined U/S. 39 IPC) caused hurts to 8485 or more human beings and thereby committed on each count an offence punishable U/S. 324 I.P.C. and within the cognizance of the Court of Sessions, Fourthly; That on the above date and at the place by allowing to escape from tank No. 610 of the A.P. Division Plant of UCIL, knowing that it was likely to cause death of animals, committed mischief by killing thereby 2544 or more animals of various descrip-tions each valuing more than Rs. 50 and thereby committed on each count an offence punishable U/S. 429 IPC and within the cognizance of the Court of Sessions."Identical charges were framed against accused No. 6 R.B. Roy Choudhary, accused No. 7 S.P. Choudhary, accused No. 8 K,V, Shetty and accused No. 9 S.1. Qureshi while UCIL, Calcutta accused No, 12 had to face the following charges : "Firstly : That on or about the night intervening 2nd and 3rd December, 1984 at Bhopal, the Capital of M.P. co-accused persons S/Shri Kishore Kamdar/J. Mukund/R.B. Roy Choudhary/S.P. Choudhary/K.V, Shetty and S.1 Qureshi committed culpable homicide not amounting to murder by causing death of 3828 or more human beings by allowing the highly toxic gas known by the name of MIC to escape from tank No. 610 of A.P, Division Plant of UCIL knowing that it was likely to cause deaths and you sharing this common knowledge with them did not do any thing to avoid the said escape of gas thus you thereby committed on each count an offence punishable U/S 304(II) R/W Sec. 35 of the I.P.C. and within the cognizance of the court of Sessions. Secondly : That on the above date and at the above place, above co-accused persons by allowing to escape from the above tank the corrosive substance known by the name or MIC gas, knowing that it was likely to cause grevious hurts, thus voluntarily (as defined U/S 39 IPC) caused grevious hurts to 21694 or more human beings and you sharing this common knowledge with them did not do anything to avoid the said escape of gas, thus you thereby com- mitted on each count an offence punishable U/S. 326 R/W See, 35 IPC and within the cognizance of Court of Sessions. Thirdly : That on the above date and at the above place, above co-accused persons by allowing to escape from the above tank the corrosive substance known by the name of MIC gas, knowing that it was likely to cause hurts, thus voluntarily (as defined U/S. 39 IPC) caused hurts to 8485 or more human beings and you sharing this common knowledge with them did not do anything to avoid the said escape of gas, thus you thereby committed on each count an offence punishable U/S. 324 R/W Sec. 35 IPC and within the cognizance of the Court of Sessions. Fourthly : That on the above date and at the above place, the above co- accused persons by allowing MIC gas to escape from the above tank knowing that it was likely to cause death of animals, com-mitted mischief by killing thereby 2544 or more animals of various descriptions each valuing more than Rs. 50 and you sharing this common knowledge with them did not do any thing to avoid the said escape of gas, thus you thereby committed on each count an offence punishable U/S. 429 R/W Sec. 35 IPC and within the cognizance of the Court of Sessions." All these accused being aggrieved by the aforesaid charges framed by the learned Sessions Judge approached the High Court of Madhya Pradesh at Jabalpur in Criminal Revision Applications moved under Sec-tions 397 and 482 of the Cr. P.C. as noted earlier: The High Court of Madhya Pradesh by common judgment in three Criminal Revising Applications Nos. 237/93, 238/93 and 312/93 moved by accused Nos. 2, 3 and 4 respectively, was pleased to dismiss the same by upholding the charges framed against these accused. Similarly Criminal Revision Application No. 311/93 moved by accused No. 5 J. Mukund, accused No. 6 R.B, Roy Choudhary, accused No. 7 S.P. Choudhary, accused No. 8 K.V. Shetty, accused No. 9 S.I. Qureshi and accused No. 12 UCIL was also dismissed by a separate order of even date. It is under these circumstances that the concerned accused are in appeal before us on special leave. Learned senior counsel Shri Asok Desai appearing for accused No. 2 Keshub Mahindra, learned senior counsel Shri Nariman, appearing for accused No. 3 V.P. Gokhale and learned senior counsel Shri Rajendra Singh, appearing for the remaining accused vehemently contended that taking the case of the prosecution at the highest as reflected by the contents of the chargesheet and the supporting material it could not be even prima facie said that the concerned accused were guilty of offence of culpable homicide not amounting to murder as envisaged by Section 304 Part II, IPC with which they are charged. That there was no question of the concerned accused having done any act on that fateful night at Bhopal which was done with the knowledge that they were likely by such act to cause death and consequently they could not have been charged on the material produced by the prosecution before the Trial Court at this stage of the trial for the offence of culpable homicide not amounting to murder. It was also submitted that on the same reasoning they could not have been charged for offence under Section 326 IPC for voluntarily causing grievous hurt or for that matter for the offence under Section 324 for voluntarily causing hurt by dangerous means. It was also contended that on the same parity of reasoning no case is made out against the concerned accused under Section 429 IPC for having committed mischief by killing, poisoning or maiming any animals. It was also submitted that so far as accused Nos, 2, 3 and 4 were concerned they were stationed at Bombay and they were not concerned with the day to day working of the Plant at Bhopal. Conse-quently there was no question of framing any charge against them for the aforesaid offences read with Section 35 of IPG as there was no evidence whatsoever for even alleging against these accused that they had any criminal knowledge in connection with the misshap that occurred on that fateful night at Bhopal. It was also contended by the aforesaid learned senior counsel that even lesser charge under Section 304-A, IPC also could riot have been framed on this material as nothing was alleged by the prosecution at this stage about any proximate act of the negligence on the part of the concerned accused which had resulted into this accidental tragedy. That if at all it was an unfortunate accident which had taken heavy toll of human lives and cattle wealth, however., none of the accused could be held criminally liable for the said accident. It was, therefore, contended that the charges as framed against the concerned accused are required to be quashed and the High Court had erred in not exercising its jurisdiction in that behalf. On the other hand learned Additional Solicitor General Shri Altaf Ahmed submitted that there was ample material produced by the prosecu-tion in support of the chargesheet which clearly indicated that all the concerned accused shared common criminal knowledge about the potential danger of escape of the lethal gas MIC both on account of defective plant which was operated under their control and supervision at Bhopal and also on account of the operational shortcomings detected by the Expert Com-mittee which had gone into the causes of this unfortunate accident, namely, Vardarajan Committee which was constituted by the Government of India for that purpose. That the report of the Scientific and Industrial Research team had clearly indicated the Causes of this tragedy and the defects found in the running of the Plant at the relevant time. That this material indicated that all the accused were properly charged for the offences alleged against them and that the court at this stage was not concerned with tie truth or falsity of the allegations with which the prosecution has charged them. That at this stage only enquiry into the prima facie nature of the allegations supporting these charges has to be made and if there is any material to prima facie indicate that (he concerned accused were liable to be prosecuted for the charges with which they are indicated the trial is required to .be permitted to proceed further and should hot be nipped in the bud as the appellants would like to have it. In support of the respective contentions learned senior counsel for the appellants as well as learned Additional Solicitor General relied upon various decisions of this Court to which we will make a reference at appropriate stage in latter part of this judgment. Before we deal with the nature of the material produced by the prosecution before the Trial Court for framing the charges against the Concerned accused it will be necessary to keep in view the limited nature of the jurisdiction available to the court for deciding whether the charges framed are legally sustainable on the basis of the material available at this stage. Section 227 of the Cr. P.C. lays down that, 'if, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing'. On the other hand as enjoined by Section 228, if after such con- sideration and hearing as aforesaid the Judge is of opinion that there is ground for presuming that the accused has committed an offence, then subject to the procedure laid down by sub-sections (a) and (b) of the said Section the charge shall be framed in writing against the accused. In the case of Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijja & Ors. AIR (1990) SC 1962, one of us A.M. Ahmadl, J. (as His Lordship then was) speaking for the Division Bench of this Court in this connection observed as under : "It seems well settled that at the Ss. 227-228 stage i.e., stage of framing the charge, the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The Court may for this limited purpose sift the evidence as it cannot be expected even at that initial stage to accept all that prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case." It is also well settled that while exercising jurisdiction under Section 482 Cr. P.C. when the High Court is called upon to quash the charge pursuant to which proceedings at the stage of trial are pending, and even when the High Court is called upon to quash proceedings pursuant to complaint, only a prima facie appraisal of the allegations made in the complaint and the material in Support thereof has to be done and the Court has jurisdic-tion to go into the merits of the allegations as that stage would come when the trial proceeds. In this connection we may usefully refer to a judgment rendered by a Bench of three learned Judges of this Court in the case of State of U.P, v, O.P, Sharma, (1996) 2 SCALE 356. Relying on earlier decisions of this Court the Bench in the aforesaid case made the following pertinent observations in paragraphs 11 and 12 of the Report : "The question then is : whether the High Court is right in its exercise of inherent power under Section 482 Cr. P.C.? This Court in State of Himachal 'Pradesh v .Pirthi Chand & Anr.,(Crl. A. 1752 of 1995) decided on November 30, 1995 held as Under : 'It is thus settled law that the exercise of inherent power of the High Court is an exceptional one Great care should be taken by the High Court before embarking to scrutinise the FIR/charge-sheet/complaint. In deciding whether the case is rarest of rare eases to scuttle the prosecution in its inception, it first has to get into the grip of the matter whether the allegations constitute the offence. It must be remembered that FIR is only an initiation to move the machinery and to investigate into cognisable offence. After the investigation is conducted and the charge-sheet is laid the prosecution produces the statements of the witnesses recorded under Section 161 of the Code in support of the charge-sheet. At that stage it is not the function of the court to weigh the pros and cons of the prosecution case or to consider necessity of strict compliance of the provisions which are considered mandatory and its effect of non-compliance. It would be done after the trial is concluded. The Court has to prima facie consider from the averments in the charge-sheet and the statements of witnesses on the record in support thereof whether court could take Cognizance of the offence, On that evidence and proceed further with the trial. If it reaches a conclusion that no cognisable offence is made out no further act could be done except to quash the charge sheet. But only in exceptional cases, i.e. in rarest of rare cases of malla fide initiation of the proceedings to Wreak private vengeance process of criminal is availed of in laying a complaint or FIR itself does not disclose at all any cognisable offence - the court may embark upon the consideration thereof and exer-cise the power. In Stale of Bihar v. Rajendra Agrawalla, ;(:CrI A.- No, 66 of 1996) decided on January 18, 1996, this Court observed as under: 'It has been held by this Court in several cases that the inherent power of the court under Section 482 of the Code of Criminal Procedure should be very sparingly and cautious-ly used only when the court comes to the conclusion that there would be manifest injustice or there would be abuse of the process of the court if such power is not exercised. So far as the order of cognizance by a Magistrate is concerned, the inherent power can be exercised when the allegations in the First Information Report Or the complaint together with the Other materials collected during investigation taken at their face value, do not constitute the offence alleged. At that stage it is not open for the court either to shift the evidence Or appreciate the evidence and come to the conclusion that no prima facie case is made out.'" Keeping in view the aforesaid well settled limited jurisdiction regarding the permissible scrutiny of the prosecution case as revealed from the char- gesheet and the material supporting the same for framing charges against the present accused we will now proceed to examine the available material on record of the case which has resulted into the framing of the impugned charges against the appellant-accused. Material in Support of the prosecution case In the first place we may glance through the relevant recitals in the chargesheet presented by the agency before the court which has resulted into the framing of the impugned charges. The said chargesheet is found at page 1 of the compilation in appeal arising out of S.L.P. (Crl.) No. 3900/95. As noted earlier the chargesheet indicts 12 accused out of which the present: 9 appellants in these four appeals are accused Nos. 2 to 9 and 12 respectively. In column 5 of the chargesheet are found listed main findings of the investigating agency in connection with this unfortunate tragedy. The relevant recitals therein read as under : "Union Carbide India Ltd., the majority share holding in which is held by U.C.C. USA, was running a factory at Bhopal for the manufacture of pesticides. The main chemical from which the pesticide Sevin was manufactured was Methyl Isocynate (CII3N = C-O) which was also being manufactured in the same factory and was being stored in underground tanks. The factory is presently not functioning. 2, On the night of 2nd/3rd December, 1984 from about 0034 to 0045 hrs, (on 3rd December, 1984) onwards, MIC started to escape from tank No. 610 in the factory in large quantities causing the death of thousands of human beings and animals .... and injuring also the health of many thousands of human beings and animals. t 3. Crime No. 1104/84 was registered at Police Station, Hanuman-ganj, Bhopal, on 3rd December, 1984, by the S.H.O., Shri Surinder Singh Thakur. Inspector who observed people dying around the factory of Union Carbide India Ltd. Bhopal (UCIL) due to escape of some gas from the factory. He registered the case Suo moto under Section 304A IPC. There Was no information available at that stage from anyone in the factory. Based on enquiries made by him daring the course of the day, five employees of the factory (A5 to A9) were arrested and kept in police custody. Accused No. 1 Shri Warren Anderson was arrested alongwith accused No. 2 & 3 on 7th December, 1984. Shri Warren Anderson was released on bail the same day by the I.O. After completing the required legal formalities, C.B.I. (D.P.S.E.) registered a case on 6th December, 1984 as RC-3/84-CIU(I) U/S 304A IPC and received the records of the case from the local police on 9th December, 1984 alongwith A2, A3 and A5 to A9 in police custody from the Madhya Pradesh Police. 4. Investigation has revealed that the Union Carbide Corporation is a company with headquarters in U.S.A. having affiliate and subsidiary companies throughout the world. There subsidiaries were supervised by four regional offices which were controlled by UCC, USA. UCIL is a subsidiary of UCC, USA. Union Carbide Eastern Inc. with its office in Hongkong is the regional office of UCC, USA which controlled UCIL, India besides others, UCC, USA get incorporated in India on 20th June, 1934, a Company known as the Eveready Company (India) Ltd, under the Indian Companies Act (Act VII) of 1913 with the Registrar of Joint Stock Companies, Bengal, The Name of the Company Was further changed w. e. f, 24th December. 1959 into Union Carbide India Ltd. Under the Indian Companies, 1956. The UCC was a majority shareholder (50:9%) in UCIL, UCC was nominating its own Direc-tors to the Board of Directors of the UCIL and was exercising strict financial, administrative and technical control on the Union Carbide India Limited. Thus, all major decisions were taken under the orders of the Union Carbide Corporation to America. The evidence collected during the investigation proves that UCC was in total control of all the activities of UCIL. 5. The investigation of this case was dependent on highly scientific and technical evaluation of the events which led to the escape of MIC gas from the UCIL plant at Bhopal. The Government of India therefore constituted, immediately after the incident, a team headed by Dr. S. Varadarjan, then D.G./C.S.I.R. to study all the scientific and technical aspects and submit their report. Dr. M. Sriram, Chief Research and Development Manager, Hindustan Organic Chemicals, Rasayani, District Ralgad (Maharashtra), was member as well as the co-ordinator of the Scientific Team. Dr. Varadarajan submitted the report in December, 1985. A further back up report was submitted by the C.S.I.R. in May, 1987. These reports furnish, inter alia, the causes that led to the incident. 6. Investigation has revealed that UCIL started importing Sevin from the UCC, USA in December, 1960. They were marketing this Sevin after adding dilutants etc. Subsequently, they decided to manufacture Sevin in their plant at Bhopal itself and accordingly created necessary facilities for production of Sevin MIC as the basic raw material. To start with, they were importing MIC in 200 litres capacity stainless steel drums from the UCC Plant in West Virginia, USA, Subsequently UCC and UCIL decided to manufac- ture MIC in their factory at Bhopal itself 7. At that stage on 13th November, 1973, UCC and UCIL entered into an agreement entitled Foreign Collaboration Agreement according to which the best manufacturing information then available from or to Union Carbide had to be provided for the factory in India. This necessitated UCC supplying the design, know how and safety measures for the production, storage and use of MIC which ought to have been an improvement on the factory of UCG at West Virginia based on the experience gained there. Investigation has however disclosed that: the factory at Bhopal was deficient in many safety aspects. The design, know-how and safety measures were provided by the Union Carbide Corporation, USA and the erec-tion and commissioning of the plant was done under the strict control of the experts of UCC. The Indians in this plant Were only working under their directions. 8. After an initial period of profits, the UCIL factory was running in loss. The loss for the first 10 months of 1984 amounted to Rs. 5,03,39,000. Due to this, U.C.E, Hongkong directed UCIL vide their letter dated 26 October, 1984 that the factory at Bhopal should be closed down and sold to any available buyer. As no buyer became available in India, UCE,, Hongkong directed UCIL to prepare an estimate for dismantling the factory and shipping it to Indonesia or Brazil where they probably had some buyers. These estimates were completed towards the end of November, 1984, 9. The investigation conducted by the C.B.I., the report of the scientific team established by Government of India and in par-ticular the literature and manuals etc. regarding MIC of Union Carbide Corporation itself prove that MIC is reactive, toxic, volatile and flammable. It is A highly hazardous and lethal material by all means of contact and is a poison. Skin contact with MIC can cause severe burns. MIC can also seriously injure the eyes even in its concentrations. Exposure to MIC is extremely irritating and would cause chest pain, coughing, choking and even pulmonary edema. On thermal composition, MIC would produce hydrogen cyanide, nitrogen oxide, carbon monoxide and/or carbon dioxide. 10. MIC has to be stored and handled in stainless steel of types 304 or 316, namely, good quality stainless steel. Using any other material could be dangerous. In particular, iron or steel, aluminium, zinc or galvanized iron, copper or tin or their alloys could not be used for purposes of storage, transfer/transmission of MIC, This would mean that even the pipes and valves carrying MIC had also got to be of the prescribed stainless steel In other words, at no stage should MIC be allowed to come into contact with any of the metals mentioned above. 11. The tanks storing MIC have to be, for reasons of safety, twice the volume of the MIC to be stored. It was also advised by UCC itself that an empty tank should also be kept available at all times for transferring MIC from its storage tank to the stand by tank on occasions of emergency. MIC has to be stored in the tanks under pressure by using nitrogen which does not react with MIC- The temperature of the tank with MIC has to be maintained below 15 degree Celsius and preferably at about 0 degree Celsius. The storage system and the transfer lines have to be free of any contaminants as even trace quantities of contaminants are sufficient to initiate reaction which could become runaway reaction. On reaction set-ting in, there could be dangerous and rapid trimerization. The induction period could vary from several hours to several days. The heat generated could cause reaction of explosive violence. In particular, water reacts exothermically to produce heat and carbon dioxide. Consequently, the pressure in the tank will rise rapidly if MIC is contaminated with water. The reaction may begin slowly, especially if there is no agitation, but it will become violent. UCC itself states that with bulk systems contamination is more likely than with tightly sealed drums. All these properties of MIC show that despite all the safety precautions that could be taken, storage of large quantities of MIC in big tanks was fraught with consider-able risk. 12. Investigation has disclosed that at the time when the incident took place there were thee partially buried tanks in the factory at Bhopal. These were numbered E 610. E 611 and E 619. MIC was being stored generally in the tanks E 610 and E 611. E 619 was supposed to be the stand by tank. In the normal running of the factory, MIC from E 610 and E 611 was being transferred (o the Sevin plant through stainless steel pipe lines. MIC is kept under pressure by nitrogen which is supplied by a carbon steel header common to all the storage tanks. There is a strainer in the nitrogen line. Subsequent to the strainer the pipe is of carbon steel and leads to make up control valve (DMV) which also has a body of carbon steel These carbon steel parts could get exposed to ( MIC vapours and get corroded, providing a source of contaminant which could enter the MIC storage tank and cause dangerous reactions in the MIC, During the normal working of the factory, MIC fumes and other gases that escape pass first through a pipe line called Process Vent Header (PVH) of 2" diameter. The escaping gases were carried by the PVH line to a Vent Gas Scrubber (VGS) containing alkali solution which would neutralize the escaping gases and release them into the atmosphere- Another escape line of such gases that was provided from the tanks was the Relief Valve Vent Header (RVVH) of 4"diameter. Normal pressure of the MIC tank is shown by a pressure indicator. When the pressure in the tank exceeded 40 psig, a rupture disc (RD) leading to a safety relief Valve (SRV) had to break and the said SRV in the RWH line open automatically to allow the escaping gas to travel through the RWH line to the VGS for neutralization; 13. Investigation has shown that the PVH and RWH pipe lines as well as the valves therein were of carbon steel. Besides, on account of design defect these lines also allowed back flow of the alkali solution from the VGS to travel upto the MIC tanks. 14. A very essential requirement was that the MIC tanks in the factory had to be kept under pressure of the order of 1 Kg./cm2g by using nitrogen, a gas that does not react with MIC. However, MIC in tank No. 610 was stored under nearly atmospheric pressure from 22nd October, 1984 and attempts to pressurize it on 30th November and 1st December, 1984 failed. The design of the plant ought not have allowed such a contingency to happen at all. The tank being under nearly atmospheric pressure, free passage was available for the entry of back flow of the solution from the. VGS into the tank. According to the report of Dr, Varadarajan Com-mittee, about 500 Kgs. water with contaminants could enter tank 610 through RVVH/PVH lines. The water that entered RVVH at the time of water flushing along with backed up alkali solution from the VGS already present could find its way into the tank 610 through the RVVH/PVH lines via the blow down DMV or through the SRV and RD. 15. The first indication of any reaction in the tanks comes through the pressure and temperature indicators. The thermowell and temperature transmitting lines were out of order throughout and ho temperature was being recorded for quite sometime. Pressure was also being recorded at the end of each shift of 8 hours duration instead every 2 hours as was being done earlier. 16. 17. On 2nd December, 1984 before 10.45 PM no deviation was noticed in the pressure of tank No. 610. Soon thereafter, in the night shift, some operators noticed leakage of water and gases and gases from the MIC structure and they informed the Control Room. The Control Room operator saw that the pressure had suddenlly gone up in tank: No. 610. Some staff in the lllrd shift including S/Shri R.K. Kamparia, C.N. Sen and Saumen Dey check- ed the pressure indicator on the tank E 610 and found that the pressure had gone out of range. The factory staff tried to control the situation but they failed. Even tank E 619 which had to be kept empty for emergency transfers was found to contain MIC and therefore when the reaction started, transfer thereto from tank 610 was not possible. The staff on duty immediately informed senior officials of UCIL at Bhopal about the escape of MIC. During all these developments and even thereafter the Union Carbide offi-cials at Bhopal did not give any information to the residents or any local authority about the serious dangers to which the people were exposed and regarding Which the said officials had full knowledge, On the other hand, what was initially mentioned was ammonia gas had escaped." Thereafter are listed the findings of the Scientific Team made by Dr.Vardarajan indicating the causes that had resulted in the toxic gas leakage causing its heavy toll. In para 20 of the chargesheet the following findings of the investigation conducted by the C.B.I, have been noted : "20 The investigation conducted by the C.B.I has proved the following aspects : (i) MIC is a highly dangerous and toxic poison. (ii) Storing huge quantity Of 'MIC in large tanks was undesirable and dangerous as the capacity and actual production in the Sevin plant did not require such a huge quantity to be stored. Only adequate quantity of MIC should have been stored, that too in small separate stainless steel drums. (iii) The VGS that had been provided in the design was capable of neutralising Only 13 tonnes of MIC per hour and proved to be totally inadequate to neutralise the large quantities of MIC that escaped from tank. No. E 610. When the two tanks (610 and 611) themselves had been designed for storing a total of about 90 tonnes of MIC, proportionately large capacity VGS should have been furnished in the design and erected rather than VGS that was actually provided. (iv) Due to the design defect, there was back flow of alkali solution from the VGS to the tanks which had been drained in the past by the staff of UCIL. Infact, even after the incident, such draining was done from the PVH and RVVH lines. (v) Whereas the MIC tanks had to be constantly kept under pressure using nitrogen, the design permitted the MIC tanks not being under pressure in certain contingencies. (vi) The refrigeration system that had been provided was inadequate and inefficient. No alternate stand by system was provided, (vii) Neither the UCC nor the UCIL took any steps to apprise the local administration authorities or the local public about the consequences of exposure of MIC or the gases produced by its reaction and the medical steps to be taken immediately. 21. Apart from these design defects, the further lapses that were committed were :. (a) Invariable storing MIC in the tanks which was much more than the 50% capacity of the tanks which had been prescribed, (b) Not taking any adequate remedial action to prevent back flow of solution from VGS into the RVVH and PVH lines. This alkali solution/water, therefore used to be drained. (c) Not maintaining the temperature of the MIC tanks at the preferred temperature of 0 degree celsius but at ambient tempera-tures which were much higher, (d) Putting a slip blind in the PVH line and connecting the PVH line with a jumper line to the RVVH line. (e) Not taking any immediate remedial action when tank No. E 610 did not maintain pressure from 22nd October, 1984 onwards, :(f) When the gas escaped in such large quantities, not setting out an immediate alarm to warn the public and publicise the medical treatment that had to be given immediately;" It was also recited that if these lapses had not occurred, still the incident Would have taken place due to the basic defects in the design supplied by the UCC whose experts supervised the erection and commissioning of the plant itself. The lapses only helped to aggravate the consequences of the incident. Thereafter referring to the indications obtainable from the evidence collected during the investigation regarding the knowledge of the accused about the defective functioning of the plant the following 'pertinent recitals are found in paragraph 23 and 24 of the Chargesheet : "23. The evidence Collected during the investigation proves that the accused persons had the knowledge that by the various acts of commission and omission in the design and running of the MIC based plant, death and injury of various degrees could be caused to a large number of human beings and animals. All the accused persons joined in such acts of omission and commission with such common knowledge. This resulted in the incident on the night of 2nd/3rd December, 1984 which caused the death immediately and till date of about 2850 human beings and about 3000 animals. The number of affected persons is more than 5,00,000. The ailments damaged respirator tract function, gastro intestinal functions, mas-cular weakness, forgetfulness etc. 24. The investigation has established that S/Shri Warren Anderson, then Chairman, Union Carbide Corporation, USA: Keshub Mahindra, then Chairman, UCIL Bombay; Vijay Gokhle, then Managing Director and presently Chairman- cum-Managing Direc-tor, UCIL, Bombay, Kishore Kamdar, then Vice President In-charge, A.P. Division, UCIL, Bombay; J. Mukund, then Works Manager, A.P. Division, UCIL, Bhopal, Dr. R.B. Roy Choudhary, then Asstt. Works Manager, A.P. Division, UCIL, Bhopal, S.P, Choudhary, then Production Manager, A.P, Division, UCIL, Bhopal; K.V. Setty, Plant Superintendent, A.P. Division, Bhopal; S.I, Qureshi, Production Assistant, A.P. Division, UCIL, Bhopal; the Union Carbide Corporation. U.S.A.; Union Carbide Eastern Inc. Hongkong and Union Carbide India Limited, Calcutta have committed offences punishable Under Sections 304, 326, 324, 429 IPC r/w Section 35 IPC" Along with this chargesheet a detailed abstract was filed supported by documentary evidence to show how the conclusions reached by the investigating agency were supported by this documentary evidence. In this abstract it was recited that in that plant there were no facilities for collecting MIC produced separately in each shift and the material is directly laid into the storage tanks without batchwise analysis. It was also found that there are no On-line analysers. Similarly, nitrogen from a neigh-bouring factory is fed directly into the storage tanks, without full inter-mediate storage and quality determination. Carbon steel sections are used in the connectors to the storage tanks. Copper tubes are used in connectors to the level instruments of the tank, The system of instruments for alarm to indicate sudden increase in temperature are not suited to the conditions of operation. Only a single refrigeration system for cooling of MIC in two tanks was installed and it had not been operated for some considerable time. MIC has the combination of properties of very high reactivity with minimum contaminants, ready volatility to become gas and very high in-halation toxicity. The installed facilities provided for disposal of unstable liquid MIC in alkali or for the neutralisation of gaseous emissions from violent reaction, on examination are found to be not capable of meeting the objectives of such disposal in a very short time of two hours. The abstract also recited that the ingress of about 500 kg, of water alone, was not the sole cause of the escape of a huge quantity of toxic gas. hi this connection the following averments found in the abstract were relied upon by the prosecution.: "The ingress of about 500 kg. of water alone, without metallic contaminants, would have led to a reaction with three to four tonnes: of MIC and gradual rise in temperature to 70 degree celsius, below the boiling point of MIC at the safety valve pressure. The very rapid explosive rise in temperature and pressure in the tank 610, implies conditions for a run-away trimerisation reaction al-ready existed. Ingress of water and reaction with MIC would generate carbondioxide evolution and cause mixing. The storage tank conditions would then equal those in a well mixed reactor, Supplied with heat. Once initiated, the trimerisation reaction had features of auto- catalytic and auto- thermal reactions and temperatures increased rapidly to 250 degree celsius. The relief valve design could not permit free flow of large quantities of gases at the level at which they were generated and therefore further reactions continued. The presence of sodium at levels of 50 to 90 ppm in the samples from residues of tank 610 indicates ingress of some alkali, possibly derived from the Vent Gas Scrubber Accumulator. It is known that the tank 610 could not be pressured with nitrogen at any time after 22 October, 1984. The contents of tank 6l0 were virtually at atmospheric pressure from that date providing opportunities for entry of metal contaminants. From a perusal of the reports of the events of the night of 2/3 December, 1984, it appears during the cleaning of choked fillers with water in the Relief Valve Vent Header, such water perhaps mixed with alkali from Vent Gas Scrubber Accumulator, could have entered the non pressurised tank and may have carried some metallic contaminants from the carbon steel portions of header pipelines. The rapid rise in temperature necessitates onset of metal catalysed polymerisation and could not result from water alone. The presence of choloroform has no influence whatsoever in initiating or accelerat-ing the run-away reactions. The quantum of leakage is related not to the quantum of water but to the amount of MIC stored in a single container. If 42 tonnes of MIC had been stored in 210 stainless steel drums instead of a single tank, leakage by reactions or spillage would be no more than one fifth of tonne." Reliance was also placed on the brochure for showing that for manufacture of Sevin, a very volatile and dangerous raw material, MIC had to be stored in large quantities and that raw material was not properly kept under cooling conditions and if coming in contact with water or any other pollutant had a tendency to create extremely toxic gas which once it escapes would necessarily create disaster to the human beings and even cattle which come in its contact. It has to be stated in fairness to learned senior counsel for the appellants that they also did hot challenge the fact that MIC was a very highly volatile and dangerous material which had to be properly kept so that it may not spell disaster once it gets converted into poisonous gas and if such gas escapes from the factory. However their only contention was whether there was any prima facie evidence to show that the appellants or any one of them was in any way responsible for this unfortunate accident, which in their view was an act of God for which no human being was responsible. The learned Addl. Solicitor General Shri Altaf Ahmed has also invited our attention to document D-159 a brochure of UCC, USA which stated that if MIC is contaminated with water it may become violent. He also invited our attention to D-195 which is a circular giving company information about definitions of 'subsidiary and associate companies'. This was relied upon to show that UCIL was a subsidiary company of UCC, USA. Additional D-9 was relied upon which was a copy of the application for grant of industrial licence for manufacture of MIC based pesticides with foreign collaboration of UCC, USA, to show that UCL authorities were well aware regarding the hazardous nature of MIC which they were handling in collaboration with UCC, USA and the safety measures which were required to be undertaken. Letter D-191 dated 26.10.1984 written by R. Nagarajan of UCEI to Shri K.S. Kamdar was relied upon to show that Shri Kamdar was requested to give feasibility report for dismantling of the MIC Plant, Bhopal and the shipment thereof abroad and the cost estimate involved in such an undertaking. Reply of Shri Kamdar at '.D-19 dated 29,11.1984 was also relied upon to show the cost estimate prepared for dismantling and shipping of the Sevin/MIC Unit from Bhopal. These documents were relied upon to indicate that by the closing months of 1984 this plant had become useless and had to be scrapped and shifted and that showed lack of interest of the management and those operating the plant in the safe working of the plant which was no longer profit making and was almost a dead burden to them and this had resulted, according to the prosecution, in illegal omission on their part in taking necessary safety measures for containing the hazardous MIC within the confines of factory premises. D-216 was a statement showing loss to MlC Unit from 1981 to 1984 which showed huge financial loss suffered by the company in running the said plant. Thereafter the learned Additional Solicitor General placed strong reliance on document D-205 which was Operational Safety Survey Report conducted by team of experts of UCC. This document showed that a number of deficiencies in the maintenance of MIC Unit were pointed out by experts as early as in 1982; The said report is styled as Operational Safety Survey Co, MIC and SEVIN Units Union Carbide India Limited, Bhopal Plant, It is dated 28th July 1982, The covering letter addressed to Shri J. Mukund accused No. 5, the then Works Manager of the Bhopal Plant recites that the team was very impressed with the quality of operating and work procedures developed over the past few years. However it sought to bring to the attention of the addressee in connection with the equipment and mechanical deficiencies described in the report and suggested that continued efforts in the area of procedures, training and enforcement were necessary for contributing substantially to the on-going safety efforts at the Bhopal Plant. It was indicated that there were potentials for release of toxic materials in the phosgene/MIC unit and storage areas, either due to equipment failure, operating problems or maintenance problems. There were potentials for contaminations, overpressure, or overfilling of the SEVIN MIC feed tank. At M.2.L were noted several conditions for opera-tion of the unit that presented serious potential for sizeable releases of toxic materials. They were listed us under ; "(a) Leakage of phosgene and choloroform from the PSS feed and quench feed Filter head assemblies. (b) Breakage of small lines or connections, either because of inadequate line Strength, installation of long unsupported nipples, or corrosion. Examples cited included quench pump drain and vent connections, HCI Scrubber pump drains, and MRS and pyrolyzer tails pump drains and vents. (It should be noted that several of these lines were originally schedule 10 nickel piping, and have been replaced, for the most part.) (c) Possible failure of the pyrolyzer calandria vapor line due to erosion/corrosion. (d) Mechanical pump seal failures, caused by improper seal design (on the Glit pumps, for instance) or inadequate control of replacement materials. (e) Release of material at unexpected places due to improper evacuation jet operation or open evacuation drops." Regarding the operation of MIC Feed Tank at Sevin which was the basic source of the Bhopal Gas tragedy the Expert Committee Report indicated the dismal situation then existing even in 1982 in paragraph M.4.2. of the Report as under : "(a) It appears that it would be possible to contaminate the tank with material from the vent gas scrubber. Although the ar-rangement of lines connecting the tank and vent scrubber appears to be adequate to prevent back flow of liquid, it appears possible to back reactive quantities of water vapors and other gases from the scrubber to the feed tank when it is depressurized. (b) Location of the tank inside a room and lack of water spray protection facilities create a situation where a toxic and flammable vapor cloud could be formed and confined without provision for knockdown or dispersal. There is mechanical ventilation in the room, but the same circumstances that could result in a leak or overfill (power failure, for instance) could result in the ventilation being inoperative. Also, it appears that a sizeable spill would not be readily dispersed by the system. (c) There is some question about the adequacy of the tank relief valve to relieve a runaway reaction or fire exposure, par-ticularly since the tank has been enlarged (d) Manual control of filling of the tank, with no instrumentation backup, creates a possibility of accidental overfilling;" Even that apart after the Bhopal Gas tragedy as stated earlier a scientific team of experts headed by Dr. Vardarajan inspected the plant on spot and tried to find out the reasons for this tragedy. At page 81 of the Report after listing various defects in the working of the plant especially with reference to storage tank and the instrumentation and control system the committee in paragraph 4.3 of the Report which is D-164 on the record of the Trial Court observed as under : "MIC is kept under a pressure of nitrogen which is supplied by a carbon steel header common to all the storage tanks: There is a strainer in the nitrogen line. Subsequent to the strainer the pipe is of carbon steel and leads to make-up DMV which also has as body of carbon steel. Similarly, the blowdown DMV is also of carbon steel body. These carbon steel parts may be exposed to MIG vapours and get corroded, providing a source of contaminant which can enter the MIC storage tank." . * At paragraph 4.4 dealing with 'Instrumentation and Control System' it was observed in the Report of the Vardarajan Committee as under : "4.4. Instrumentation and Control System : The pressure in the MIC tank increases rapidly if MIC is con-taminated with water. There is no high pressure alarm to alert the operator about the build-up of pressure. There is a graphite rupture disc between the tank and the safety valve. This graphite rupture disc may break because of pressure surges even under normal conditions. There is no provision for an alarm to bring such a breakage of rupture disc to the attention of the operator. For the storage of a lethal chemical such as MIC, two instru-ments in parallel (one for control/indication and another for alarm) are normally provided. No such provision is made. For example, quite often the level readings have not been recorded. reportedly because the level system used to be out of order very often due to choking problems. In fact; after the event, since the only level monitoring system provided for tank 611 was not functioning, it was not possible to ascertain the exact quantity of MIC in that tank. An additional level measuring system would have helped in such a situation. Ingress of contaminants or water can start a reaction with MIC which begin slowly and produce a rise in temperature of the tank contents. However, the range of the temperature transmitter provided was only-25 degree celsius to PLUS 25 degree celsius, with a high alarm setting at PLUS 11 degree celsius. The contents of the tank were being stored at ambient temperature, which varies approximately from PLUS 15 degree celsius to PLUS 40 degree Celsius at BhopaL The temperature of MIC in the storage tanks for most part of the year was higher than the high temperature alaram setting. i.e. PLUS 11 degree celsius. Indeed the temperature of material in the tank was higher than the maximum of the range of the temperature transmitter, i.e. PLUS 25 decree celsius. hi such circumstances the actual temperature was not known and the transmitter was of do value. Further provision of "rate of rise in temperature" alarm would have invited the operator's attention to the start of such a reaction. No such provision was made:" In connection with refrigeration the Committee observed in paragraph 4.5 of the Report as under : 4.5 Refrigeration ; There is only one common compressor and chiller system for all the three MIC storage tanks. For such a hazardous material as MIC, where maintaining it at a low temperature is considered very important, a spare compressor and chiller system would have ensured proper chilling even when the main compressor and chiller system is under repairs- or maintenance. This provision of spare compressor and chiller has not been made." At paragraphs of the Report is found an analysis of the events which led to the disaster out of the gas escape on that fateful night and the summary of the conclusion is found in the last sub-paragraph of para 5. It reads as under : "In retrospect, it appears the factors that led to the toxic gas leakage and its heavy toll existed in the unique properties of very high reactivity, volatility and inhalation toxicity of MIC. The need-less storage of large quantities of the material in very large size containers for inordinately long periods as welt as insufficient caution in design, in choice of materials of construction and in provision of measuring and alarm instruments, together with the inadequate controls on systems of storage and on quality of stored materials as well as lack of necessary facilities for quick effective disposal of material exhibiting instability, led to the accident. These factors contributed to guidelines and practices in operations and maintenance. Thus the combination of conditions for the accident were inherent and extant. A small input of integrated scientific analysis of the chemistry, design and controls relevant to the manufacture would have had an enormously beneficial influence in altering this combination of conditions, arid in avoiding or lessening considerably the extent of damage of December, 1984 at Bhopal." In addition to the aforesaid documentary evidenc the learned Additional Solicitor General also relied upon D-157 being Memorandum of Associa-tion and Articles of Association of M/s Ever Ready Company (India) Private Limited subsequently changed to M/s Union Carbide India Limited showing accused No. 2 Keshub Mahindra as the Chairman. Various annual reports were pressed in service to show how accused No. 2 Keshub Mahindra presided over the meetings and how accused No. 3, V.P. Gok-hale worked as whole-time Director. This was relied upon to show that these accused even though stationed at Bombay shared the criminal knowledge of the other personnel of the company who were actually handling the Bhopal plant being accused Nos. 5 to 9. It was submitted relying on aforesaid material and also the statements of Arjun Singh, Mohan Singh and Ram Lal and other statements of persons working in the plant which were recorded during investigation that all the accused had Criminal knowledge regarding the defective working of the plant at Bhopal and as the Plant was to be dismantled and shifted out of India the powers that monitored the plant were no longer interested in its safe keeping and by their illegal omissions to take appropriate steps for safe working of the plant and for the safe keeping of such dangerous material like MIC which they were handling at Bhopal, they were rightly charged for the concerned offences by the learned Trial Judge and that the High Court was right in refusing to interfere with the framing of these charges. In this connection it Was pointed that as the material showed no transfer of MIC from the strorage tanks to the production 1 in e could take place since November 22, 1984 due to the defective system. Still no remedial measures were taken. That the report of Vardarajan Committee showed that a relief valve vent header and process valve header were joined together by putting a -'U' type flexible hose jumber line. Therefore, according to him, this resulted in back flow of alkalin solution from the VGS to the storage tanks leading to a chain of reactions. It was next submitted that despite the recommendations in the report of the operational Safety Survey conducted at Bhopal Plant by experts from United States during May 1982 and despite various deficiencies of serious and minor nature being pointed out no remedial steps were taken. Even during the Safety Survey leakages from MIC plant area had been noticed. Deficiency in safety valve and absence of fixed water sprayers in the MIC Plant area had been particularly pointed out. Thus the gas had leaked from the storage tank due to a chain chemical reaction. That the material led before the Trial Court at the stage of framing of charge clearly indicated that there was possibility of ingress of water and other con-taminants from the RVVH or during cleaning of the valve due to rupturing the disc valve which had resulted into this grim tragedy. It was next contended that the material led by the prosecution at this stage at least prima facie showed that all the accused were fully responsible for the conduct of the plant and they shared the criminal knowledge about the acts of commission and omission on the part of those of the accused who were actually handling the plant and supervising its working on that fateful night at Bhopal. That accused R. Choudhary, J. Mukund, S.P. Choudhary, K.V, Shelly and S.I. Qureshi who were actively associated with the working of the plant at Bhopal were directly concerned with the incident as they were in full knowledge of the deficiencies in the plant. Similarly accused Keshub, Mahindra, V.P. Gokhale and Kishore Kamdar too had full knowledge of the defects in the plant at Bhopal and therefore, they also shared the criminal liability based on criminal knowledge about the acts of commission and omission in connection with the operation of the said plant at Bhopal. That alt the accused had full knowledge of the hazardous nature of the MIC manufactured as an intermediate product in Bhopal plant, defects in the design of the plant lack of safety Measures, but -still they had taken to precautionary steps to avoid this unfortunate accident. Learned senior counsel for the appellant-accused on the other hand submitted that even if taking the material available on record at this stage on its face value the short question is whether any charge could have been framed against the accused under Section 304 Part II, IPC with or without the aid of Section 35, IPC and even for that matter any charges could have been framed under Sections 326, 324 or 429 with or without the aid of Section 35 of IPC. We may at once state that both the learned Sessions Judge as well as the High Court have taken the view on the aforesaid material that a prima facie case has been made out by the prosecution requiring accused to face the aforesaid charges and (he trial of the accused on these charges cannot be cut short or nipped in the bud in the light of the aforesaid material which has to be accepted as prima facie true and reliable at this preliminary stage of framing of charges. It, therefore, become necessary for us now to address ourselves on this moot question. As noted earlier the main charge framed against all these accused is under Section 304 Part II, IPC. So far as accused No's. 2, 3, 4 and 12 are concerned they are also charged with offences under Sections 326,324, IPC and 429 IPC read with Section 35 IPC while accused 5 to 9 are. charged substantially with these offences also. We shall first deal with the charges framed against the concerned accused under the main provisions of Section 304 Part II, IPC. A look at Section 304 Part II shows that the concerned accused can be charged under that provision for Sri offence of culpable homicide not amounting to murder and when being so charged if it is alleged that the act to the concerned accused is done with the knowledge that it is likely to cause death but without any intention to cause death or to cause such bodily injury as is likely to cause death the charge offences would fall under Section 304 Part II. However before any charge under Section 304 Part II can be framed, the material on record must at least prima facie show that the accused is guilty of culpable homicide and the act allegedly committed by him must amount to culpable homicide. However, if the material relied upon for framing such a charge against the concerned accused falls short of even prima facie indicating that the accused appeared to be guilty of an offence of culpable homicide Section 304 Part I or Part II would get put of the picture. In this connection we have to keep in view Section 299 of the Indian Penal Code which defines culpable homicide. It lays down that, 'whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide'. Consequently the material relied upon by the prosecution for framing a charge under Section 304 Part II must at least prima fade indicate that the accused had done an act which had caused death with at least such a knowledge that he was by such act likely to cause death. The entire material which the prosecution relied upon before the Trial Court for framing the charge and to which we have made a detailed reference earlier, in our view, cannot support such a charge unless it indicates prim a facie that on that fateful night when the plant was run at Bhopal it was run by the concerned accused with the knowledge that such running of the plant was likely to cause deaths of human beings. It cannot be disputed that mere act of running a plant as per the permission granted by the authorities would not be a criminal act. Even assuming that it was a defective plant and it was dealing with a very toxic and hazardous substance like MIC the mere act of storing such a material by the accused in tank Mo: 610 could not even prima facie suggest that the concerned accused thereby had knowledge that they were likely to cause death of human beings. In fairness to prosecution it was not suggested and could not be suggested that the accused had an intention to kill any human being while operating the plant. Similarly on the aforesaid material placed on record it could not be even prima facie suggested by the prosecution that any of the accused had a knowledge that by operating the plant on that fateful night whereat such dangerous and highly volatile substance like MIC was stored they had the knowledge that by this very act itself they were likely to cause death of any human being. Consequently in our view taking the entire material as aforesaid on its face value and assuming it to represent correct factual position in connection with the operation of the plant at Bhopal on that fateful night it could not be said that the said material even prima facie called for framing of a charge against the concerned accused under Section 304 Part II, IPC on the spacious plea the said act of the accused amounted to culpable homicide only because the operation of the plant on that night ultimately resulted in deaths of number of human beings and cattle. It is also pertinent to note that when the complaint was originally filed suo motu by the police authorities at Bhopal and the criminal case was registered at the police station Hanumanganj, Bhopal as case No, 1104/84 it was registered under Section 304-A of the IPC. We will come to that provision a little later. Suffice it to say at this stage that on the entire material produced by the prosecution in support of the charge it could not be said even prima facie that it made the accused liable to face the charge under Section 304 Part II. In this connection we may refer to a decision of the Calcutta High Court to which our attention was drawn by learned senior counsel Shri Rajendra Singh for the appellants; In the case of Adam Ali Taluqdar and Ors. v. King-Emperor, AIR (1927) Calcutta 324 a Division Bench of the Calcutta High Court made the following pertinent observa-tions while interpreting Section 304 Part II-read with Section 34 [PC : "Although to constitute an offence under S. 304, Part 2, there must be no intention of causing death or such injury as the offender knew was likely to cause death, there must still be a common intention to do an act with the knowledge that it is likely to cause death though without the intention of causing death. Each pf the assailants may know that the act, they are jointly doing, is one that is likely to cause death but have no intention of causing death, yet they may certainly have the common intention to do that act and therefore S. 34 can apply to a case Under S. 304, Part 2;" Once we reach the conclusion that the material produced by the prosecu-tion before the Trial Court at the stage of framing of charges did not even prima fade connect the accused with any act done with the knowledge that by that act itself deaths of human beings would be caused the accused could not be even charged for culpable homicide and consequently there would be no question of attracting Section 304 Part II against the con. cerned accused on such material. When on the material produced by the prosecution no charge could be framed against any of the accused under Section 304 Part II there would remain no occasion to press in service the applicability of Section 35, (PC in support of such a charge for those accused who were not actually concerned with the running of the plant at Bhopal, namely, accused Nos, 2,3, 4 and 12. We may now turn to the charges framed against the concerned accused- appellant under Sections 324 and 326 of the IPC. Section 324 deals with 'voluntarily causing hurt by dangerous weapons Or means' while Section 326 deals with 'voluntarily causing grievous hurt by dangerous weapons or means". Both these sections for their application require material against the accused on the basis of which it could be said that the accused had voluntarily caused such hurt or grievous hurt, as the case may be. Section 321 defines 'voluntarily causing hurt' and provides that, 'whoever does any act with the intention of thereby causing hurt to any person, or with the knowledge that he is likely thereby to cause hurt to any person, and does thereby cause hurt to any person, is said "voluntarily to cause hurt". Similarly Section 322 deals with 'voluntarily causing grievous hurt' and lays down that, 'whoever voluntarily causes hurt, if the hurt which he intends to cause or knows himself to be likely to cause is grievous hurt, and if the hurt which he causes is grievous hurt, is said "voluntarily to cause grievous hurt". For applicability of these Sections the material relied upon by the prosecution in support of such charges must show that the con-cerned accused had committed the act complained of at least with the knowledge that by- such act he was likely to cause hurt or grievous hurt to the victim, We have already indicated hereinabove that the material pressed in service by the prosecution for framing such charges against the accused falls short of indicating that the act of running the plant on that fateful night at Bhopal which in its turn involved storing and utilising highly dangerous and volatile substance like MIC in their storage tank No. 610 could not even prima facie be said to have been done with the knowledge that by such act itself simple hurt or grievous hurt was likely to be caused to anyone. Consequently on such material even charge under Sections 324 and 326, IPC could not have been framed against the concerned accused. Once this conclusion is reached there would also remain no occasion to press in service against the absentee accused Nos, 2, 3, 4 as well as 12 Section 35 IPC which the prosecution sought to press in service along with substantive Sections 324 and 326 IPC. In fact on the material as placed by the prosecution in support of these charges if a charge under Section 304 Part II cannot be framed then on the parity of reasoning no charge under Sections 324 and 326 could also be framed. That takes us to Section 429, IPC which deals with 'mischief by killing or maiming cattle, etc., of any value or any animal of the value of fifty rupees'. For application of this Section the material must indicate that the concerned accused had com- mitted mischief in the first place. The term 'mischief is defined by Section 425 IPC. It lays down that, 'whoever, with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, or in the situation thereof as destroys or diminishes its value or utility, or affects it injuriously, commits "mischief"- Before the said Section is pressed in service the material relied upon by the prosecution must indicate even prima facie that the concerned accused by running the plant at Bhopal on that fateful night had knowledge that by running such plant they were likely to cause wrongful loss or damage to the public or to any person. It is difficult to appreciate how said provision can be pressed in service on the basis of the material referred to hereinabove which does not whisper or even prima facie indicate how by running such a plant wherein highly dangerous and volatile substance like MIC was stored in tank No. 610 the accused had the knowledge that by that act alone they were likely to destroy anybody 's property or cause wrongful loss or damage to any person. Once the applicability of Section 425, IPC dealing with 'mischief is ruled out on such material there would remain no occasion to invoke Section 429 which for its applicability requires the prosecution to show in the first instance any material against the concerned accused indicating the commission of mischief by the accused. In our view, therefore, on the material pressed in service by the prosecution for framing charges against the accused no charge could have been framed against the concerned accused either under Section 304 Part II of under Section 324, 326 or 429, IPC with or without the aid of Section 35, IPC. On these findings of ours the appeals will be required to be allowed and all these charges will have to be quashed. However this is not the end of the matter. There still remains the question as to whether any other charge can be framed against the con-cerned accused for any of the offences under the Indian Penal Code on the basis of the very same material relied upon by the prosecution for framing appropriate charges against the accused. It is true that though Originally the criminal case was registered for an offence under Section 304-A of the IPG the Central Bureau of Investigation which took up the investigation thought it proper to press in service Section 304 Part II and Sections 324, 326 and 429 of the IPC. Charges under these Sections have been found by us to be unsustainable on the material produced by the prosecution on record in support of these charges. However that does not mean that on the material as it stands on record the accused cannot even prima facie be alleged to have committed any criminal offence for which they can be called upon to face the trial and that they should get a clean chit and clear walk-over. In our view the prosecution on the material as aforesaid had made out a prima facie case against the accused for being tried under Section 304-A of the IPC which reads as under : "304-A. Causing death by negligence. - Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide shall be punished with imprisonment of either description for the term which may extend to two years, or fine, or with both". On our finding that the material pressed in service by the prosecution does not indicate even prima facie that the accused were guilty of an offence of culpable homicide and, therefore, Section 304 Part II was out of picture, Section 304-A on this very finding can straightaway get attracted at least prima facie. It cannot be disputed that because of the operation of the defective plant at Bhopal on that fateful night a highly dangerous and volatile Substance like MIC got converted into poisonous gas which snuffed off the lives of thousands of human beings and maimed other thousands and killed number of animals and that all happened, as seen at least prima facie the material led by the prosecution on record, because of rash and negligent act on the part of the accused who were in-charge of the plant at Bhopal. Even though, therefore, these accused cannot be charged for offences under Section 304 Part II the material led against them by the prosecution at least prima facie showed that the accused were guilty of rash or negligent acts not amounting to culpable homicide and by that act caused death of large number of persons. We may mention that on the question whether on this material Section 304-A could be invoked or not, learned senior counsel for the appellants as well as learned Add]. Solicitor General for the respondent-State did address us and, therefore, we can and should, with a view to avoid multiplicity of proceedings, exercise our powers under Article 142 of the Constitution and decide whether the material led by the prosecution can prima facie support charges under Section 304-A against concerned accused; In the case of State of Gujarat v, Haidarali Kalubhai, [1976] 1 SCC 889 it was laid down by this Court as under.: "Section 304-A by its own definition totally excludes the ingredients of Section 299 pr Section 300 I. P.C, Doing an act with the intent to kill a person or knowledge that doing of an act was likely to cause a person's death are ingredients of the offence of culpable homicide. When intent or knowledge as described above is the direct motivating force of the act complained of, Section 304-A has to make room for the graver and more serious charge of culpable homicide." On the facts found in that case it was held that the prosecution evidence did not make out a case of any wilful or deliberate act on the part of the accused in order to cause the death of the deceased by driving the truck in the way he did. Whether the prosecution brings home the charge under Section 304- A or not will, of course, have to be decided in the light of the evidence that may be led in the trial against the accused who is required to face the charge under Section 304-A. But for framing such a charge the material on record must at this stage be assumed to be representing a true Version of the event. For repelling the applicability of Section 304-A, learned senior counsel for the appellants pressed in service decision in the case of Ambalal D. Bhatt v. The State of Gujarat, 11972] 3 SCC 525. The following observations in the aforesaid judgment were pressed in service : "(1) In a prosecution for an offence under Section 304- A of I.P.C., the court has to examine whether the alleged act of the accused is the direct result of a rash and negligent act and that act was the proximate and efficient cause of the death without intervention of other's negligence. The mere fact that an accused contravenes certain rules or regulations in doing of an act does not establish an offence under Section 304-A, I.P.C. The act causing deaths: must be the causa causans; it is not enough that it may have been the causa sine qua non. The court has to determine whether the act of the accused is the causa causans or has there been a cause intervening which has broken the chain of causation so as to make the act of the accused, though a negligent one, not the immediate cause or whether it amounts to an act or gross negligence or recklessly negligent conduct. The fact that twelve lives have been lost, however shocking and regret- table it may be, ought not to allow the mind boggle while appreciat-ing the evidence." It was submitted that the material must prima fade show that the alleged act of the accused was the direct result of rash and negligent act. In this connection we must observe that the material led by the prosecution to which we have made a detailed reference earlier prima facie shows that there were not only structural defects but even operational defects in the working of the plant on that fateful night which resulted into this grim tragedy. Consequently a prima facie case is made out for framing charges under Section 304-A against the concerned accused. If ultimately on the evidence led by the prosecution and even by the defence if at all they choose to led evidence in rebuttal, it is found that that act complained of was not the proximate and efficient cause of death and intervention of Other's negligence had taken place the accused may get acquittal after facing the full fledged trial. But that stage has yet hot come. It would, therefore, be premature at this stage to say as to what would be the ultimate result of the trial once the accused are made to face such a trial. But it cannot be said that on the material led by the prosecution at this stage even the case of culpable negligence of rashness is also not made out at least prima facie against the concerned accused and the trial should be nipped in the bud even for such a charge. Our attention was also invited by learned senior counsel for the appellants in support of their contention that the material on record does not prima facie make out a case for framing a charge under Section 304-A, IPG. The following observations of Hegde, J, speaking for a Bench of three learned Judges in the case of Suleman Rehiman Mulani & Ors. v. State of Maharashtra, [1968] 2 SCR 515, were pressed in service; "The requirements of s. 304-A I.P.G. are that the death of any person must have been caused by the accused by doing any rash or negligent act. In other words, there must be proof that the rash or negligent act of the accused was the proximate cause of the death. There must be direct nexus between the death of a person and the rash or negligent act of the accused. There is no presump-tion in law that a person who possesses only a learner's licence or possesses no licence at all does not know driving. For various reasons, not excluding sheer indifference, he might not have taken a regular licence. The prosecution evidence that first appellant had driven the jeep to various places on the day previous to the occurrence was a proof of the fact that he knew driving," Even that decision cannot be of any avail to the appellants for the simple reason that question of proof of rashness and negligence will arise at the stage of trial after full evidence is led by the prosecution and even by the accused side if at all they choose to do so and in the light of that evidence the question would arise whether the charge as framed is made out by the prosecution against the concerned accused. At present we are concerned with the short question as to whether on the material led by the prosecution at this stage a case is made out for framing under Section 304- A, IPG or not? It cannot be gainsaid that the voluminous evidence led by the prosecu-tion in this connection at least prima facie shows that the concerned accused who operated the plant on that fateful night at Bhopal could be alleged to be at least guilty of rash and negligent act in the way this highly volatile substance MIC was handled by them and which ultimately escaped in vapourous form and extinguished the lives of thousands of human beings and animals apart from causing serious bodily injuries to thousands of others. Our attention in this connection was also invited by learned senior counsel for the appellants to the case of Kurban Hussein Mohammedali Rangwalla v. State of Maharashtra, [1965] 2 SCR 622. It was submitted relying on the said decision that for punishing an accused under Sections 304-A and 285 of the IPC it was required to be shown that because of the alleged rash and negligent act death must result and death must be the direct and proximate result. It that case on evidence led at the full fledged trial the question arose whether the charge was made out. All these judgments on which learned senior counsel for the appellants placed reliance, therefore, could have applicability for judging the culpability of the concerned accused after they face the trial arid entire evidence is led in the case against them. However for framing charge under Section 304- A on the aforesaid material it cannot be said that the said material even prima facie did not point out the culpability of the concerned accused in running a defective plant having number of operational defects and in being prima facie guilty of illegal omissions to take safety measures in running such a limping plant on that fateful night which resulted into this colossal tragedy. The aforesaid conclusion of oars, therefore, would make out & prima facie case against accused nos. 5, 6, 7, 8 and 9 who were in actual charge of running of the Bhopal plant and would require them to face the trial for charge under Section 3G4-A of the 1PG. So far as the remaining accused nos. 2, 3, 4 and 12 are concerned the material produced on record clearly indicates at least prima facie that they being at the helm of affairs have to face this charge for the alleged negligence and rashness of their subordinates who actually operated the plant on that fateful night at Bhopal and for that purpose Section 35 of the IPC would also prima facie get attracted against them. A mere look at that Section shows that if the act alleged against these accused becomes criminal on account of their sharing common knowledge about the defec-tive running of plant at Bhopal by the remaining accused who represented them on spot and who had to carry out their directions from them and who were otherwise required to supervise their activity, Section 35 of the IPC could at least prima facie be invoked against accused 2, 3, 4 and 12 to be read with Section 304-A, IPC. Consequently we find that on the material led by the prosecution against the accused at this stage a prima facie case was made out by the prosecution for framing charges against accused Nos. 2, 3, 4 and 12 under Section 304-A read with Section 35 IPC While substantive charges under Section 304-A could be framed against accused Nos. 5,6, 7, 8 and 9. In this connection Shri Desai, learned senior counsel for the appellants vehemently submitted that the High Court was in error in invoking Section 35 against the concerned accused. Placing reliance on Esso Standard Inc. v. Udharam Bhagwandas Japanwalla, [1975] 45 Comp. Gas. 16 he submitted that, that was a ease in which for the individual acts of the directors of the company the company was sought to be made liable by invoking the principle of corporate liability based on the doctrine of directing mind and will. Shri Desai submitted that this was a converse case where for the act of the company which is a corporate body being accused No. 12 tie individual directors are sought to be roped in. The aforesaid contention of Shri Desai cannot be of any avail at this stage for the simple reason that whether on facts such converse case is made out or not in the light of aforesaid decision will depend upon the evidence that may be led at the stage of trial. But this would not rule out framing of appropriate charge against the appellants if there is prima facie material against them which in our view has been made available by the prosecution before the Trial Court for framing such a charge against the concerned accused. Shri Ashok Desai, learned senior counsel then submitted that the material led by the prosecution does not even remotely indicate that accused no. 2 who was at Bombay could have shared any knowledge with persons at Bhopal who were actually operating the plant. When from the documentary evidence produced by the prosecution it is prima facie indi-cated that the accused at the helm of affairs was in the apex position enabling him to know the shortcomings of the working of the plant at Bhopal. Whether he actually shared knowledge or not will be a question of evidence and proof to be resolved at the stage of trial. However from the material available on record it cannot be said that the prosecution had not prima facie made out a case for attracting Section 35, IPC so far as the present accused are concerned. However we must add a caution. We must note that whatever we have observed at this stage in connection with the material produced by the prosecution for framing charges against the accused is strictly confined to this limited question. Whether the accused are found actually guilty of the charges framed against them or not will strictly depend upon the evidence that may be led at the stage of trial and the court will have to decide the culpability of the concerned accused, if any, strictly confined to the evidence that may be led at the stage of trial. Our present observations, therefore, should not be treated to have even remotely suggested that in fact the accused are guilty of the offences with which they are liable to be charged pursuant to our present order. Conse-quently oh the material as produced by the prosecution on record charges under Section 304-A read with Section 35 IPC can be framed against accused nos. 2, 3,4 and 12. We direct the appropriate Trial Court to frame charges as aforesaid against the concerned accused. However in our view from the material which is produced on record there is a possibility of considering a further question whether charges under Sections 336, 337 and 338 of the IPC with or without the aid of Section 35 can be framed against the concerned accused. They read as Under: "336. Act endangering life or personal safety of others. - Whoever does any act so rashly or negligently as to endanger human life or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to two hundred and Fifty rupees, or with both. 337, Causing hurt by act endangering life or personal safety of others. - Whoever causes hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both. 338. Causing grievous hurt by act endangering life or personal safety of others. -. Whoever causes grievous hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprison-ment of either description for a term which may extend to two years, or with fine Which may extend to one thousand rupees, or with both." As none of the parties have addressed us on these aspects we leave this question for consideration of the learned Trial Judge who may after hearing the parties decide whether on the material as led by the prosecu-tion on record at this stage charges, if any, can also be framed under Sections 336, 337 and 338 of the IPC with or without the aid of Section 35 of the IPG. We express no opinion on this aspect and leave it open to the Trial Court to address itself On this question. As a result of the aforesaid discussion it is held that on the material led by the prosecution appropriate charges which are required to be framed against the concerned accused are under Section 304-A IPG so far as the accused Nos. 5, 6, 7, 8 and 9 concerned while so far as accused nos. 2,3,4 and 12 are concerned charges under Section 304-A read with Section 35 IPG will have to be framed. As these offences are triable by the court of Judicial Magistrate 1st Class, Bhopal the Sessions Case shall be trans- ferred to the Court of the Chief Judicial Magistrate, 1st Class, Bhopal who will proceed with the trial in accordance with law and frame appropriate charges under Section 304-A with or without the aid of Section 35, as the case may be, against the concerned accused as indicated hereinabove. In the result the appeals filed by the concerned accused partially succeed to the aforesaid extent. Charges framed against them under Sec-tions 304 Part II, 324, 326 and 429, IPC with or without the aid of Section 35, as the case may be, are quashed and set aside. Instead it is directed that the appropriate Trial Court shall frame charges against these accused as indicated in the judgment. The appropriate Trial Court to which the case will stand transferred is also directed to consider the further question whether charges should be framed under Sections 336, 337 and 338 of the IPC with or without taking the aid of Section 35, IPC after hearing the concerned parties. On that aspect we express no opinion. Orders accord- ingly.

Keshub Mahindra vs State Of M.P on 13 September, 1996

Supreme Court of India

Civil Revision No.1521 of 2001(O & M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.1521 of 2001(O & M) Date of decision 04.02.2009 M/s General Electronics and others .....Petitioners versus Amrik Singh .....RespondentCoram:- Hon'ble Mr. Justice K. Kannan. Present: Mr.Harminderjeet Singh, Advocate for the petitioners. Mr. M. L. Sarin, Sr. Advocate with Mr. Kabir Sarinfor the respondent. K. Kannan, J (Oral) 1. The tenant is the revision petitioner. The landlord's petition for ejectment of the property which was a shop was on the ground of personal requirement. The petition was dismissed by the Rent Controller on a twin consideration of appreciation of evidence that the landlord had no previous experience in electronic business and the other line of reasoning was that the same landlord had earlier filed a petition for eviction in respect of the same premises but he had not set out his personal requirement as one of the grounds. The Rent Controller observed that if such a necessity had existed even in the year 1994, he would have definitely set that also as a ground. The fact that he did not take that as a ground earlier and was taking it up for the first time in the year 1997, when the petition was filed, he was evidently trying to somehow to wrest possession from the tenant under some ground or the other. 2. The landlord as an aggrieved party went on appeal and the appellate authority allowed the appeal, who on a re-appreciation of evidence Civil Revision No.1521 of 2001(O & M) -2- on facts found that the landlord had sufficient resources to start the business. He adverted to the provisions of law and the consideration of the matter in the light of decisions of this Court and of the Supreme Court that if the landlord had given his requirement details and there was no ground to suspect the bona fides, eviction shall follow. 3. The learned counsel for revision petitioner seeks to support the finding of the Rent Controller and assail the decision of the appellate authority on the ground that the landlord did not take the ground of personal necessity as existing at the time of filing the first application which was a clear proof of the fact that the so-called necessity did not exist. It was deliberately introduced for the purpose of securing an ejectment order. 4. The fact that the landlord did not seek for ejectment in the earlier application filed in the year 1994 also on the ground of personal necessity cannot, in my view, conclusively establish the lack of bona fides. If such a ground was not pleaded, it could mean no more then stating that such a requirement did not exist for a landlord at that relevant time. The grounds of eviction which are available under Section 13 of the East Punjab Urban Rent Restriction Act are mutually exclusive and there is no bar against filing of petitions consecutively on various grounds, so long as, the relevant causes of action existed for approaching the Court for appropriate reliefs. An explanation is also given by the learned Senior Counsel appearing for the respondent that under the relevant provision of law under Section 13(3) of the Act, the wording in the statute is the requirement of a landlord in possession of "in the case of a residential building". This was perceived at one time as barring landlords for securing eviction on a property which is put to a non-residential purpose by a tenant. The law Civil Revision No.1521 of 2001(O & M) -3- settled authoritatively by the decision of the Supreme Court reported in AIR 1996 Supreme Court 857 Harbilas Rai Bansal versus State of Punjab and another, that the ground would be available even to a landlord, against a tenant who holds the building for non-residential purpose. The ground, in his perception which was not clearly made, became available only by the decision of the Supreme Court. Again, there could be nothing artificial about a landlord who had on an earlier occasion did not conceive of starting of a business but he had decided to start one later and the ground is so made in a subsequent petition. 5. The existence of bona fides, otherwise will be a matter of appreciation of evidence and all that the case requires in order that the landlord makes out a foundation of laying such a claim is that it a) is required to be in his own occupation; b) he is not occupying another residential building; c) that he has not vacated such a building without sufficient cause.If onus all these circumstances exist, the onus will be on the tenant to show that the landlord lack of the bona fides; 6. The learned counsel appearing for the revision petitioner would state that the tenant came by possession in the property in the year 1989 and before him, it was in the hands of yet another tenant who was ejected by the landlord. His line of reasoning was that if an ejectment order was made and if the landlord was in possession in the transient period before he rented it out, that possession which he held after coming into the force of the Act, was sufficient to disentitle him. This objection is merely be stated to be rejected. The possession which the law contemplates that would disentitle the landlord from claiming eviction if he had such possession after coming Civil Revision No.1521 of 2001(O & M) -4- into the Act at that time when the landlord files the petition for eviction. Admittedly, the landlord did not have in his possession any other property and there was no statutory bar for approaching the Rent Controller for ejectment on the ground on which it was sought for. 7. The tenant has sought to introduce as additional evidence documents under Order 41 Rule 27 CPC which was opposed by the learned Senior Counsel appearing on behalf of the landlord. Ex.A-1is a statement of Sh. Sudesh Mahajan made in favour of a decree-holder, named as Amar Singh, under which the decree-holder has stated that he has taken possession of the property. It is explained by the landlord that he himself was not a party but the decree-holder mentioned in the statement was his father-in-law. Annexure A-2 is an order of eviction in relation to the property claimed by the landlord's father-in-law. The documents are totally irrelevant and they do not go to establish that the landlord was in occupation of any other building that could disentitle him to claim ejectment. The plea for reception of additional evidence is therefore, rejected. 8. The reasoning of the appellate Court in relation to the personal requirement of the landlord is cogent and convincing and that there is no scope for interference in revision. 9. The revision petition is dismissed. 10. The respondent seeks for time for eviction. The plea is acceptable and he shall have two months time from the date of the order for eviction. ( K. KANNAN ) JUDGE 04.02.2009 A. Kaundal

M/S General Electronics And ... vs Amrik Singh on 4 February, 2009

Punjab-Haryana High Court

Gujarat High Court Case Information System Print CA/4472/2011 2/ 2 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL APPLICATION - FOR BRINGING HEIRS No. 4472 of 2011 In SPECIAL CIVIL APPLICATION No. 1225 of 2011 ======================================================= STATE OF GUJARAT THROUGH COLLECTOR - Petitioner(s) Versus BHIKHIBEN LALUBHAI & 2 - Respondent(s) ======================================================= Appearance : MR HK PATEL AGP for Petitioner(s) : 1, MR HARSHADRAY DAVE for Respondent(s) : 1 - 2,2.2.3 - 3. NOTICE SERVED BY DS for Respondent(s) : 1.2.1, 1.2.2, 1.2.3, 1.2.4,1.2.5 - 2, 2.2.2, 2.2.4, 2.2.5, 2.2.6, 2.2.7, 2.3.1,2.3.2 ======================================================= CORAM : HONOURABLE MR.JUSTICE RAJESH H.SHUKLA Date : 09/05/2011 ORAL ORDERRule. Learned counsel, Mr.Harshadray Dave appears and wavies service of notice of rule on behalf of the respondents. The present application has been filed by the applicant-State of Gujarat for bringing legal heirs of the respondent nos.1 and 2 as stated in detail in the cause title. Heard learned A.G.P., Mr.Patel for the applicant-State and learned counsel, Mr.Harshadray Dave for the respondents. In view of the reasons mentioned in the application and considering the guidelines with regard to delay in considering such application that pragmatic approach should be adopted, the present application deserves to be allowed. In the circumstances, the present application is allowed in terms of Para Nos.6b, 6c and 6d. The applicant shall carry out necessary amendment within a week. Rule is made absolute. No order as to costs. Office to place Special Civil Application No.1225 of 2011 on board on 29th June, 2011. (RAJESH H.SHUKLA, J.) /patil     Top

Author: Rajesh H.Shukla,&Nbsp;

State vs Bhikhiben on 9 May, 2011

Gujarat High Court

C.R.No.5235 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R.No.5235 of 2009 Date of Decision : 14.09.2009 Parkash ...Petitioner Versus Rajender Singh and others ...Respondents CORAM:HON'BLE MR. JUSTICE HEMANT GUPTA Present: Mr. J.S.Mehndiratta, Advocate, for the petitioner. HEMANT GUPTA, J. (ORAL) 14.09.2009 (HEMANT GUPTA) Vimal JUDGE Plaintiff No.2 is in revision aggrieved against the order passed by the learned trial Court on 12.8.2009, whereby an application for permission to lead additional evidence, was declined. The sole reason for seeking permission to lead additional evidence is that at the time of filing of the suit, the petitioner was a minor and since now he has attained the majority, therefore, he is entitled to lead evidence, which his mother has failed to lead, when she was prosecuting the suit on his behalf as well. The plaintiff attained the age of majority on 30.9.2007. The evidence of the plaintiff has been closed in affirmative on 1.5.2008 i.e. after he attained the age of majority. Once the plaintiff has chosen to prosecute the present suit, it is not open to him to seek permission to lead additional evidence only with a motive to fill up the lacuna in evidence, which his mother as natural guardian could not lead. Thus, I am of the opinion that the reasoning given by the learned trial Court to decline the permission to lead additional evidence C.R.No.5235 of 2009 2 cannot be said to be suffering from patent illegality or irregularity, which may warrant interference by this Court in the present revision petition. Dismissed.

Parkash vs Rajender Singh And Others on 14 September, 2009

Punjab-Haryana High Court

Title: Need to give wide publicity to celebration of first war of Independence known as ‘Sepoy Mutiny’ (1857). SHRI ADHIR CHOWDHURY (BERHAMPORE, WEST BENGAL): First War of Independence popularly known as ‘Sepoy Mutiny’ (1857) to be recently celebrated in various parts of the country in memory of those brave sepoy’s along with unsung heroes. It is an acknowledged fact even substantiated by historical evidence that 17th native infantry stationed in Berhampore, District Murshidabad, West Bengal had rebelled against the operation and discrimination meted out to the Seepahis in the month of February, 1857. It is also a fact that the British officials instead of taking disciplinary action against those mutinous Sepoy’s rather settled with them as they perceived any punitive action would have been proved disastrous for their existence in Berhampore. Later the same infantry was disbanded. Again this year (2007) also is remembered as the 250 anniversary of Plassey Battle which culminated in the defeat of Independent Nawab namely Seerajdullah.             I urge upon the Government to give necessary publicity of the said incidents so that the historical events are known to each.

Need To Give Wide Publicity To Celebration Of First War Of ... on 8 March, 2007

Lok Sabha Debates

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Sonal Srivastava vs Vice-Chancellor, B.H.U. And ... on 16 August, 2010

Allahabad High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3878 of 2009 Uma Madhav Sanskrit Awasiya Pr Versus The State Of Bihar & Ors with CWJC No.4361 of 2009 Ranglal Sanskrit Parthmik Sah Versus The State Of Bihar & Ors with CWJC No.4392 of 2009 Shyam Lal Sanskrit Primary-Cum Versus The State Of Bihar & Ors with CWJC No.4451 of 2009 Ram Prasad Sah Versus The State Of Bihar & Ors with CWJC No.4574 of 2009 Sanskrit Primary-Cum-High Scho Versus The State Of Bihar & Ors with CWJC No.4645 of 2009 Ganesh Acharya Versus The State Of Bihar & Ors with CWJC No.4646 of 2009 Ram Chandra Yadav @ Ram Chandr Versus The State Of Bihar & Ors with CWJC No.4674 of 2009 Savitri Hira Sanskrit Primary Versus The State Of Bihar & Ors with CWJC No.4709 of 2009 Satya Narayan Sah Sanskrit Hig Versus The State Of Bihar & Ors with CWJC No.4836 of 2009 Shiv Narain Yadav Versus The State Of Bihar & Ors with CWJC No.5804 of 2009 Rajwati Mishrain Sanskrit Uchc Versus The State Of Bihar & Ors with CWJC No.6095 of 2009 Siya Kaushalaya Suresh Sanskri Versus The State Of Bihar & Ors with CWJC No.6108 of 2009 Nakchhedi Mandal Jagdish Prasa Versus The State Of Bihar & Ors with CWJC No.6113 of 2009 Sant Kabir Mahanth Basudeo San Versus The State Of Bihar & Ors with CWJC No.6131 of 2009 Sri Ram Baran Prathmik Sah Uch Versus The State Of Bihar & Ors with CWJC No.6445 of 2009 Adarsa Sanskrit Prathmik Sah U Versus The State Of Bihar & Ors with CWJC No.6473 of 2009 Shri Shanti Sharma Sanskrit Pr Versus The State Of Bihar & Ors ----------- Snkumar/- (Navin Sinha,J.) 4. 18.07.2011 Learned Counsel for the parties jointly submitted that the issue of recognition of the concerned institution including that of the petitioners is pending consideration before this Court in MJC No. 205 of 2010 and analogous cases. They request that these writ applications may be heard along with the same. The Court concurs with them that to ensure uniformity in the orders of this Court the present writ applications may be placed before the same Bench after obtaining orders of Hon'ble the Chief Justice.

Sri Ram Baran Prathmik Sah Uch vs The State Of Bihar & Ors on 18 July, 2011

Patna High Court - Orders

[Section 112(1)] [Section 112] [Complete Act]

Central Government Act

JUDGMENT Manisana, J. 1. This is an appeal from an order of acquittal of the Chief Judicial Magistrate Shillong in CR Case No. 396(S) of 1979. 2. Facts of the case, in brief, are thus. On 13-8-79, the Chief Executive Officer of the Shillong Municipal Board made a complaint to the Chief Judicial Magistrate Shillong stating that the accused Shri Bhagirath Yadav, the proprietor of Yadav Mistanna Bhandar at Shillong Bara Bazar, has made an extension of 12ft x 4ft in area to the ground floor without obtaining permission from the Municipal Board. The notice under Section 177(1) of the Meghalaya Municipality Act, for short 'the Act', had been served on the accused directing him to demolish the unauthorised construction, but he failed to do so. The Chief Judicial Magistrate acquitted the accused of the charge, without entering into the merits of the case, on the ground that the prosecution was instituted without the order or consent of the Board as is provided under Section 324 of the Act. Hence this appeal. 3. Mrs. B. Dutta, the learned counsel for the appellant, has contended that order or consent of the Board was not required in such a case where the Shillong Municipal Board was dissolved by the order of the State Government of Maghalaya under Section 298 of the Act and the Chief Executive Officer was functioning and discharging the powers and duties of the Board. 4. Mr. My Ciddikie, the learned counsel for the respondent has contended that the consent of the Board was required, and that under Section 10 of the Act, the Municipal Board is a body corporate having perpetual succession and a common seal, and by that name shall sue and be sued and, therefore, the prosecution should have been instituted in the name of the Municipal Board. 5. The question which arises for consideration is whether the order or consent of the Board was required under Section 324 of the Act where the complaint was made by the Chief Executive Officer during the period of supersession or dissolution of the Board. 6. Section 299 of the Act provides consequences of super session. Under Section 299, when the Board is dissolved or superseded all the Commissioners of the Board shall, as from the date of the order of dissolution or supersession, vacate their offices as such Commissioners and all the powers and duties which under the Act may be exercised and performed by the Board, whether at a meeting or otherwise, shall, during the period of supersession, or in case of dissolution till the new Commissioners and the Chairman are elected or nominated, be exercised and performed by such person or persons as the State Government may direct. 7. In the present case, after the dissolution of the Board, the Chief Executive Officer has directed by the State Government to exercise all the powers and duties of the Board, whether at a meeting or otherwise. Therefore, the Chief executive Engineer, so long as the supersession or dissolution lasts, shall exercise and perform the powers and duties, and as such, during the period of supersession or dissolution, there is substitution of functionaries, and the Chief Executive Officer shall be deemed to be the Board for the purpose. 8. The question which, therefore, arises for consideration is whether the Court shall not take cognizance of any offence under the Act, or under any rules or bye-laws made under the Act, on the complaint of the Board (now the Chief Executive Officer). 9. Under Section 324 of the Act, no prosecution for an offence under this Act, or under any rule or bye-law made in pursuance thereof, shall be instituted without the order or consent of the Board. Section 324 further provides limitation for institution of the prosecution. The object of the order or consent of the Board is to guard vexatious proceedings against any person, i.e. the object is to save unnecessary harrassment to the accused. Therefore, if the Board, which is to give the consent or order, itself makes a complaint, the position would be otherwise. We approach the matter as follows. Section 190, Cr. P.C. provides that any Judicial Magistrate of the first class has jurisdiction to take cognizance of any offence upon receiving a complaint of facts which constitute such offence. Under Section 4(2), Cr. P.C. all the offences under any other law shall be tried, and otherwise dealt with according to the provisions of the Code, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. Under Section 5, Cr. P.C. nothing contained in the Code, shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force. Therefore, any Magistrate of the first class shall have the jurisdiction to take cognizance of any offence under the Act provided that there is no provision to the contrary under the Act. Section 324 is the relevant provision. On reading of Section 324, we do not find that there is any bar from taking cognizance of any offence under the Act or Under any rules or bye-laws made thereunder, on the complaint made by the Board itself. In the present case, as already stated, the functionaries of the Board had been substituted by the Chief Executive Officer, and the Chief Executive Officer, would be deemed to be the Board, and as such, complaint made by the Chief Executive Officer was maintainable, i.e., the Magistrate had jurisdiction to take cognizance of the offence. 10. As regards the contention of Mr. Ciddikie relating to Section 10, section 10 relates to Civil suit and not to criminal prosecution. Criminal prosecution is one thing and the Civil suit is another. In that view of the matter, the contention of Mr. Ciddikie cannot be accepted. 11. The next question, which arises for consideration is whether the prosecution shall be terminated as the matter has been pending for last 11 years, and, under Section 158 of the Act, offence is punishable with a fine not exceeding Rs. 200/- and to a further fine not exceeding Rs. 25/- during which encroachment continues. Quick justice is a sine qua non of Article 21 of the Constitution of India. Considering over-all circumstances of the case, we are of the view that it would be just and fair and in accordance with the equity to direct that the trial to proceed no further. We do so accordingly. In the result, the appeal is dismissed with the above observation. However, we make it clear that the Board may take any other suitable action with regard to encroachment in accordance with law.

Author: Manisana

Shillong Municipal Board vs Shri Bhagirath Yadav on 3 January, 1991

Gauhati High Court

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Varun Chaudhary vs State Of U.P. & Others on 1 September, 2010

Allahabad High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM RP.No. 783 of 2008(J) 1. SALILAJA.C.T., AGED 44 YEARS, ... Petitioner Vs 1. KERALA PUBLIC SERVICE COMMISSION, ... Respondent 2. CHAIRMAN, KERALA PUBLIC SERVICE 3. SECRETARY, KERALA PUBLIC SERVICE For Petitioner :SRI.MOHAN JACOB GEORGE For Respondent :SRI.ALEXANDER THOMAS,SC,KPSC The Hon'ble MR. Justice V.GIRI Dated :09/12/2008 O R D E R V.GIRI, J. ------------------------------------------------------- Review Petition No.783 of 2008-J -------------------------------------------------------- Dated this the 9th day of December, 2008. J U D G M E N T ab V.GIRI, JUDGE  Pursuant to the interim order passed by this Court, an affidavit had been filed by the competent authority of the Kerala Public Service Commission, affirming that consideration of the petitioner's representation prior to Ext.P2 was actually done by the Chairman though the decision is seen to be expressed the name of the 2nd respondent. In these circumstances, I do not find any grounds to review the judgment. Accordingly, the review petition is dismissed.

Salilaja.C.T. vs Kerala Public Service Commission on 9 December, 2008

Kerala High Court

[Section 2] [Complete Act]

Central Government Act

[Complete Act]

Central Government Act

JUDGMENT J.C. Verma, J. 1. This miscellaneous appeal has been preferred by the insurance company challenging the award of the Motor Accidents Claims Tribunal, Neem Ka Thana (Sikar), dated 21.12.1998 in Case No. 5 of 1991 wherein a sum of Rs. 1,66,000 has been awarded along with interest to the claimants now respondent Nos. 1 to 4. 2. The claimants had preferred the claim as legal heirs of deceased Pappu on account of the accident between truck No. RJV 4110 being driven by the deceased and owned by respondent No. 5 and jeep No. RJ 23-0326 being driven by respondent No. 6 and owned by respondent No. 7. The accident was caused on 21.9.1990 on the road from Neem Ka Thana to Sikar near Guhala. The jeep was insured by the New India Assurance Co. Ltd. and the truck was insured with National Insurance Co. Ltd. 3. AWs 3 and 4 have stated that the accident had been caused on account of the negligence of the driver of the jeep whereas NAW 1 and NAW 2 had deposed that the accident had been caused because of the sole negligence of the driver of the truck. The deceased was the driver of the truck. The Tribunal had given a finding to the effect that the accident had been caused due to the negligence of the truck driver. The Tribunal had further held the liability of compensation to be paid on the shoulders of the owner of the truck and the appellant non-claimant No. 5 solely, i.e., National Insurance Co. Ltd. 4. Award is challenged by the insurance company to the effect that after giving the finding that the accident had been caused because of the negligence of the truck driver and because of the deceased himself being negligent, the insurance company cannot be held to be liable. It is stated that the liability cannot be put when the claim is made by the tortfeasor himself and no benefit can be derived by the wrongdoer himself. No other point has been raised. 5. Admittedly, the driver of the truck was an employee of respondent No. 5 and the said truck was insured with the present insurance company appellant. Assuming the finding of the Tribunal to be correct to the effect that the accident had been caused due to negligence of the driver of the truck who had died in the accident, but still the liability of the insurance company and the owner of the truck is not lessened because of the provisions of the Workmen's Compensation Act. The age of the truck driver was 27 years, the compensation has been awarded to the extent of Rs. 1,66,000 as detailed in the award. Counsel states that in case the claimants, the L.Rs. of the deceased would have claimed the compensation under the Workmen's Compensation Act, in that situation, the amount would have been about Rs. 90,000 plus interest and penalty under the provisions of the Workmen's Compensation Act. 6. In case of Rita Devi v. New India Assurance Co. Ltd. 2000 ACJ 801 (SC), the autorickshaw was hired by certain persons with the object to steal the vehicle and killing the driver, the Hon'ble Supreme Court has held that the murder of the driver was an accidental murder and the legal representatives of deceased driver were held entitled to compensation for his death. It was held by the Apex Court that the stealing of the autorickshaw was the object of the felony and the murder that was caused in the said process of stealing of the autorickshaw was only incidental to the act of stealing the autorickshaw, therefore, the Apex Court held that death was caused accidentally in the process of committing theft of the autorickshaw; therefore, the decision of Tribunal was right to come to the conclusion that the claimants were entitled to compensation as claimed by them and the judgment of High Court was wrong in reversing the judgment of Tribunal and coming to the conclusion that the death was not caused by an accident involving the use of motor vehicle. It was observed that the Acts, viz., the Motor Vehicles Act and the Workmen's Compensation Act is to provide compensation to the victims of the accidents. The only difference between the two enactments is that so far as the Workmen's Compensation Act is concerned, it is confined to workmen as defined under that Act while the relief provided under Chapters X to XII of Motor Vehicles Act is available to all victims of accidents involving a motor vehicle. This conclusion is supported by Section 167 of the Motor Vehicles Act under which, it is open to the claimants either to proceed to claim compensation under the Workmen's Compensation Act or under Motor Vehicles Act. A perusal of the objects of the two enactments clearly establishes that both the enactments are beneficial enactments operating in the same field, hence the judicially accepted interpretation of the word 'death' in the Workmen's Compensation Act is certainly applicable to the interpretation of the word 'death' in the Motor Vehicles Act also. 7. In the case of Rita Devi, 2000 ACJ 801 (SC), the High Court had come to the conclusion that there was no motor accident as contemplated under the Act and the case was that of murder and not of accident, therefore, no petition for compensation was maintainable. The deceased who was- employed to drive autorickshaw was duty-bound to have accepted the demand of fare paying passengers to transport them to the place of their destination. During the course of this duty if the passengers had decided to commit an act of felony of stealing the autorickshaw and in the course of achieving the said object of stealing autorickshaw, they had to eliminate the driver then it cannot but be said that the death so caused to the driver of the autorickshaw was an accidental murder. The Tribunal had rightly awarded the compensation. 8. The only contention being raised by the appellant is that the claimants should have preferred the claim under the Workmen 's Compensation Act and not under the Motor Vehicles Act. 9. After hearing learned Counsel for the appellant, I am not convinced with the arguments. Even though the claim could have been filed under the Workmen's Compensation Act, the owner and the insurance company would have been liable for payment of compensation and compensation would have been almost equal to the amount in question. I see no merit in the submission by the appellant that the claimants could or should have approached the authority under the provisions of Workmen's Compensation Act only, the matter already stands settled by the Apex Court in Rita Devi's case, 2000 ACJ 801 (SC). 10. The miscellaneous appeal is dismissed at admission stage.

Author: J Verma

National Insurance Co. Ltd. vs Savitri And Ors. on 15 February, 2001

Rajasthan High Court

JUDGMENT Pendse, J. 1. By this petition filed under Article 226 of the Constitution of India, the petitioner Company is challenging the legality of two orders passed by the State Government in exercise of powers under Section 10(i)(d) and under Sub-section (3) of Section 10 of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act) The facts giving rise to the passing of these orders are as follows: 2. The petitioners are a Limited Company having their factory at Sewree, Bombay, and in which about 219 workers are employed. The workers are represented by respondent No. 3-Union. On January 12, 1985, the respondent No. 3 Union informed the Minister for Industries, Government of India, New Delhi, that the petitioner Company had number of factories in the country and one of the major Unit is at Sikka in Gujarat State and that Unit supplies raw materials for the manufacture of Cement to the Bombay factory. The Union pointed out that the Company is not being run to the full capacity and apprehended that the management may close down the Unit as the Company is diversifying the production in other Units. The Union pointed out that in case, the petitioner Company closed the Unit at Bombay, it would result in 300 workers rendering jobless. The copies of this communication were also sent to the Minister of Industries, Government of Maharashtra. Another letter was addressed on February 1, 1985 by the Union to the Minister for Labour, Government of Maharashtra, pointing out that the management had earlier settled the employees' long standing demands amicably and there is no existing labour problem, but inspite of that fact, the management is trying to close down the Unit step by step. The letter points out that the conduct of the management is not bona fide and the production is reduced with the idea of diversification of Unit to other places and the Government should look into the matter to protect the workmen. 3. In view of the grave concern caused by the said two letters, the Department of Labour, of the State Government took immediate action through the Office of the Commissioner of Labour, On February 2, 1985, the petitioner Company was requested to attend the Office of the Assistant Commissioner of Labour on February 6, 1985 in connection with the labour situation prevailing in the Company. The Legal Adviser of the Company attended the meeting and assured that the labour situation was absolutely normal and promised to enquire whether any trouble is apprehended in future. The Legal Adviser thereafter did not bother to give any information to the labour Commissioner. The Commissioner of Labour thereupon called a joint meeting of the representatives of the Union and the management of February 27, 1985, but the management remained absent. The Commissioner of Labour spoke over the telephone to the Works Manager of the petitioner Company and fixed another appointment for a joint conference. The Legal Adviser alone appeared on behalf of the Company and sought adjournment on the ground that responsible Officers of the Company are not available. Accordingly, the meeting was postponed to March 13, 1985. 4. The petitioner Company then suddenly published a notice of lock out on March 12, 1985 in accordance with the provision of Sub-section (2) of Section 24 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act 1971. The lock out was to be effective from March 31, 1985. The Statement of Reasons annexed to the notice claims that the workmen resorted to go-slow tactics effective from February 21, 1985 and that has resulted into heavy losses. It further claims that the workmen were indulging in sabotage resulting into frequent break-downs of the machines and some of the workers had indulged in violence on or after February 21, 1981. The Company claimed that the work was suspended with effect from March 11, 1985. On March 29, 1985, the Government of Maharashtra received a communication from the Regional Cement Controller expressing concern about suspension in production of cement at Sewree factory of the petitioner due to the alleged labour problems and requested the Government to intervene in the dispute and avoid loss of production. The Commissioner of Labour thereupon summoned the representatives of the parties but the Legal Adviser of the petitioners at the meeting justified the lock out. Another meeting was fixed on March 30, 1985 but the management remained absent. On April 6, 1985, the Minister of Labour made an attempt to conciliate between the parties and the management could not satisfy that the lock out was necessary. On April 23, 1985, the Union served a demand notice upon the company claiming wages for the period during lock out. The Company by its reply refused to concede the demand insisting that the lock out was justified. The Union thereafter submitted a justification statement in support of the demand against the petitioners. 5. In view of the Industrial unrest in the petitioner Company, the Office of the Commissioner of Labour made a proposal to the Government on April 11, 1985 recommending reference for adjudication under Section 10(1)(d) and suspension of operation of lock out. In view of the demands raised by the workmen and submission of justification statement, the State Government decided to refer the following dispute for adjudication to the Tribunal: "Whether the suspension of operations and lock out effected in the Company's establishment with effect from 11th March, 1985 and 31st March 1985 respectively are justified? If not, what relief monetary or otherwise, the workmen are entitled to?" On the same date, the Government passed another order in exercise of powers conferred by Sub-section (3) of Section 10 of the Act prohibiting the continuance of lock out in connection with the dispute referred to the Tribunal for adjudication/The Company had filed the present petition in this Court on June 21, 1985 challenging the two orders. 6. Shri Shelve, learned counsel appearing on behalf of the Company, raised three contentions in support or the petition. The first contention is that the reference made by the State Government is not valid because there was not any existing demand of the workmen on the date of reference. The submission is only required to be stated to be rejected. As mentioned hereinabove, the Company had declared a lock out, and prima facie, it appears to be without any reason whatsoever or with an ulterior motive, with effect from March 31, 1985, but the work was suspended from March 11, 1985 itself. The workers made demand for wages during the period of lock out, as it is the claim : of the Union that there was no justification whatsoever for suspending the work or declaring the lock out. The demand was lodged by the workmen on April 23, 1985 and the State Government after making several attempts to bring round the parties and realising the futility of the same because of the adamant attitude taken by the management decided to refer the dispute about justification of the action of suspension of work and lock out by the petitioner Company. It is difficult to appreciate how the action of the State Government can be faulted with. Shri Shetye faintly urged that the dispute could be referred provided it was in existence prior to the date of issue of lock out notice. The submission cannot be accepted because the action of declaring a lock out by the Company gave rise to the dispute and the demand made by the workmen that the lock out was unjustified and the workmen were entitled to the wages for the period of wrongful closure of the factory. 7. The second submission urged by the learned counsel is about the validity of the order of the State Government prohibiting the continuance of the lock out in connection with the dispute referred. It was urged by the learned counsel that the power conferred on the State Government under Sub-Section (3) of Section 10 of the Act enables the State Government to restrain the continuance of the strike or the lock out provided the cause which gave rise to the lock out is referred for adjudication to the Tribunal. It was urged that the cause which led the Company to declare lock out has not been referred for adjudication and, therefore, the exercise of power was defective. It is not possible to accede to the submission advanced by the learned counsel. Sub-section (3) of Section 10 of the Act reads as under: "Where an industrial dispute has been referred to a Board, Labour Court, Tribunal or National Tribunal under this Section, the appropriate Government may by order prohibit the continuance of any strike or lock out in connection with such dispute which may be in existence on the date of the reference." The plain reading of this Section makes it clear that the power could be exercised by the State Government, provided an industrial dispute has been referred to the Tribunal. The contention urged is that the lock out could be prohibited provided such lock out is in connection with the dispute which is referred. It was contended by Shri Shetye that the lock out was declared because of go-slow tactics and the violence resorted by the workmen and the question as to whether the workers indulged in such activities has not been referred and, therefore, the powers under Sub-section (3) were wrongly exercised. The submission is entirely misconceived. The dispute which is referred is in respect of the action of the petitioner Company in suspending the work and declaring the lock out and such dispute has a direct connection to the action of the petitioner Company and, therefore, the State Government had ample powers to prohibit the continuance of lock out. 8. The third contention urged by Shri Shetye is that before exercising power under Sub-section (3) of Section 10 of the Act, the State Government ought to have given hearing to the petitioner Company. It was urged that the order passed under Sub-section (3) of Section 10 of the Act is a quasi judicial order and even if considered to be an administrative order, demands that the party who is affected by such order is given a notice and hearing before-hand. It is not possible to accept the submission of the learned counsel. The powers conferred under this sub-section on the State Government are required to be exercised to maintain industrial peace and to avoid conflict between the employers and the employees. The order may be required to be passed in respect of industries which are essential or are of great importance to the public and it is futile to urge that in cases of emergency the State Government should give a show cause notice and hearing to the concerned parties before exercising the powers. Apart from this consideration, in the present case, it is very clear that the State Government, the Labour Commissioner and the Minister for Industries and Labour on several occasions called upon the petitioners to attend the meeting and find out a solution to the problem but the petitioner Company insisted in taking adamant attitude. Taking into consideration, the background which led to the issue of lock out notice by the Company, in my judgment the action of the State Government in prohibiting the continuance of lock out could not be faulted with. Shri Shetye invited my attention to the decision in the case of A.K. Kallappa Chettiar and Sons, Ernakulam (represented by its managing Partner, A.K. Karuppuswami), v. State of Kerala (represented by Chief Secretary to Government) and Ors. reported in 1970(1) Labour Law Journal 97 where the learned Single Judge of the Kerala High Court held that the power conferred under Section 10(3) of the Act could be exercised only after giving reasonable opportunity to the person who would be affected thereby. The Single Judge of the Kerala High Court also took the same view in the case of Malayalam Plantations (India) Limited and Anr. v. Workmen of Kaliyar Estate and Ors. reported in 1985 Indian Factories Journal, Volume 66, page 38. 9. Shri Deshmukh, learned counsel appearing on behalf of the Union, invited my attention to the Division Bench decision of the Andhra Pradesh High Court in the case of Eenadu Press Workers Union and Anr. v. The Government of A.P. and Anr. reported in 1979 Labour Industrial Cases 330 where it was held that it is not necessary to issue a show cause notice before exercising powers under Sub-section (3) of Section 10 of the Act. The Division Bench of the Andhra Pradesh High Court did not approve the decision of the Kerala High Court. I am in respectful agreement with the view taken by the Division Bench of the Andhra Pradesh High Court. Apart from that, in the present case, the State Government gave several opportunities to the petitioners and made it clear that the powers would be exercised if the petitioners declined to mend their ways. Reference was made also to decision of the Supreme Court in the case of Delhi Administration, Delhi v. Workmen of Edward Keventers and Anr. reported in 1978 (2) LLJ 209 but that decision has no relevance to the submission that hearing should be given prior to the exercise of powers under Sub-section (3) of Section 10 of the Act. In my judgment, there is no merit whatsoever in the petition and the same deserves to be dismissed. 10. Accordingly, petition fails and the rule is discharged with costs. Shri Deshmukh very vehemently urged that the petitioner has approached the Court by making false statements and, therefore, the petition should not be entertained and compensatory costs should be awarded to the Union. I am not inclined to adopt the course suggested by the learned counsel.

Author: Pendse

Digvijay Cement Company Ltd. vs State Of Maharashtra And Ors. on 12 February, 1986

Bombay High Court

Court No. - 2 Case :- WRIT - C No. - 23320 of 2010 Petitioner :- M/S Sri Nath Cold Storage Private Ltd. Respondent :- District Consumer Disputes Redressal Forum & Others Petitioner Counsel :- B.N. Rai,Adarsh Kumar Hon'ble Ashok Bhushan.J. Hon'ble Virendra Singh,J. As prayed, list in the next cause list. Interim order already granted shall continue till the next date of listing. Order Date :- 6.7.2010 Rakesh

M/S Sri Nath Cold Storage Private ... vs District Consumer Disputes ... on 6 July, 2010

Allahabad High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 2517 of 2011(L) 1. MANUAL JACOB, AGED 60 YEARS, ... Petitioner Vs 1. KERALA STATE POLLUTION CONTROL BOARD, ... Respondent For Petitioner :SRI.PEEYUS A.KOTTAM For Respondent : No Appearance The Hon'ble MR. Justice ANTONY DOMINIC Dated :25/01/2011 O R D E R ANTONY DOMINIC, J. -------------------------------------------------- W.P.(C) NO.2517 OF 2011(L) -------------------------------------------------- Dated this the 25th day of January, 2011 J U D G M E N T Heard both sides. 2. Petitioner has established a metal Crusher Unit. For operating the Unit consent from the Pollution Control Board is necessary and for that purpose he made Ext.P5 application and Ext.P7 reminder. Orders have not been passed and that lead the petitioner to file this writ petition. 3. Taking note of this grievance of the petitioner, at this stage what is required is that the respondent should consider the application made by the petitioner for consent. Therefore, the writ petition is disposed of directing the respondent to consider Ext.P5 application made by the petitioner as expeditiously as possible and at any rate within 6 weeks from the date of production of a copy of the judgment along with a copy of the writ petition. (ANTONY DOMINIC) JUDGE vi/  WPC.No. /09 :2 :

Manual Jacob vs Kerala State Pollution Control ... on 25 January, 2011

Kerala High Court

JUDGMENT Macleod, J. 1. The plaintiffs filed this suit against the defendant in April 1911 alleging that in June 1910 defendant requested them to act as his pakka adalias, that in consequence of such instructions they entered into contracts for the sale of large quantities of cotton and linseed which resulted in heavy losses These they seek to recover from the -defendant after giving him credit for a large sum which, it is alleged, he deposited with them as margin money. 2. The defendant pleads that he entered into cotton and linseed contracts with the plaintiffs as principals and that the common understanding between the parties was that no delivery was to be given or taken but that differences alone should be dealt in. He denies that the plaintiffs acted as his pukka ad adatias. 3. On the 19th January 1911 the defendant obtained leave to administer interrogatories to the plaintiffs. The affidavit of the managing clerk of defendant's solicitors supporting the application states that in order to answer the questions the plaintiffs would have to refer to their books and if those questions were put to them in cross-examination a good deal of the Court's time would be wasted. 4. The following five interrogatories were administered in pursuance of the leave so obtained:- 1. What were the daily cash balances from 1st September 1910 to 1st October 1910 of the plaintiffs' firm as appearing in their daily cash book ? 2. What were the daily bank balances during the same period P 3 (a) How many contracts did the plaintiffs' firm enter into for the sale and purchase of linseed in Samvat year 1964, Samvat year 1965, and Samvat year 1966, and what quantity was agreed to be sold or purchased in each case as per the said contracts V 3 (b) Which of the said contracts were purchased by you by actually weighing out and giving delivery and which by actually taking delivery of weighment. 4. In all these years from 1964 to 1966 what was the amount of linaeed for April-May delivery and what for Bhadarwa delivery ? 5. 'How many contracts for April-May delivery were performed by actual weighment of ready linseed and how many contracts for Bhadarwa delivery were so performed (sic). 5. The plaintiffs filed their answer on the 29th February 1912. 6. They objected to answering interrogatories 1 and 2 on the ground that they had no possible reference to the defences raised in the suit. 7. They objected to answering interrogatories 3, 4 and 5 on the following grounds, that they were administered solely with the object of fishing out a case for the defendant and getting information of the plaintiffs' general dealings and transactions, and their general business, that they were irrelevant to the issues to be tried and, in any event, could only be asked in cross-examination, that as the defendant admitted that his application was made expressly for the purpose of saving the time of the Court at the hearing, the plaintiffs now knew what questions the defendant wished to ask, and would be ready with the answers from their books if the Judge at the hearing allowed the questions. 8. The defendant thereupon obtained a summons on the 13th March calling upon the plaintiffs to shew cause why they should not forthwith fully answer the interrogatories on the ground that they were relevant and material to his defence, and were neither fishing nor made to annoy the plaintiffs. 9. The first issue on these pleadings will be whether the plaintiffs acted as pakka adatias for the defendant. A pakka adatia has been held by the Court to be a person who enters into a contract of employment with his constituent for reward. The pakka adatia obtains instructions from his client what contracts to eater into, but generally speaking the constituent is not concerned with the method in which his instructions are carried out. It would appear, however, that in the Bombay Presidency it is open to the constituent to prove that the contracts made by the pakka adatia were wagering contracts. So the issue of wager will arise whether the plaintiffs contracted direct with the defendant or acted as his pakka adatias. 10. According to the decisions of the Court a party relying on the defence of wagering must prove that at the time the contract was entered into, it was the common intention of both parties neither to give nor receive delivery, but merely to pay or receive differences according to the market rate at the due date. The Court in determining the questions what was common intention of the parties at the time of the. contract can look to the surrounding circumstances, as it hardly ever occurs that there is direct evidence of a common intention to wager. Each party hopes to win, and it is only when the due date has arrived and it is apparent which party has lost, that the loser sets up the defence of wagering. s He is always ready to swear he was wagering, he has to prove that his opponent was likewise wagering. 11. Now 'surrounding circumstances' is a very loose expression and it is quite impossible to foresee what questions will be allowed by the Judge at the hearing to be put to the plaintiffs in cross-examination. The party seeking discovery by interrogatories is entitled to put questions for the purpose of extracting from his opponent information as to the facts material to the questions between them, which he has to prove on any issue raised between them, or for the purpose of securing admissions as to such facts in order that expense and delay may be saved, or to destroy his opponent's case, or to support his own case. 12. The mere fact that the questions would be admissible in cross-examination of a witness does not make them good as interrogatories. Interrogatories must not be exhibited unreasonably or veraciously, nor be prolix, oppressive, unnecessary or scandalous. Nor should interrogatories be allowed which are sought to be administered obviously for the purpose of fishing out a case. 13. It may be difficult to decide where the line is to be drawn between interrogatories which should be allowed to be administered, and those which are prolix, vexatious or fishing, but in cases of doubt it is advisable to leave the questions to be put at the hearing. I have hitherto, in cases where the defence of wagering has been set up, refused to allow the party setting up this defence to interrogate his opponent generally as to his business transactions apart from the particular transactions in suit, on the ground that it is manifestly unfair to compel a man to disclose his general dealings on the chance that thereby his opponent may discover something which will support his case, and I am not disposed to decide differently on this summons. 14. The plaintiffs are asked to disclose their daily cash balances and daily bank balances from the 1st September 1910 till the 1st October 1910, to disclose the whole of their contracts for the sale and purchase of linseed during these specified years with the particulars of each contract, the quantity agreed to be sold or purchased in each contract and how each contract was performed. 15. Further they are asked what was the total amount of their linseed contracts for April-May and Bhadawa deliveries and how many contracts Were performed by actual weighment. 16. I presume that the defendant hopes to discover that the plaintiffs' cash and bank balances in September to October 1910 were so small, and Mat the contracts for linseed during the years 1965 to 1966 which were performed by actual weighment, if any, were so few, that the Judge at the hearing will find those are surrounding circumstances which prove the intention of the plaintiffs in the contracts in question was merely to pay or receive differences. 17. In the General Stock Exchange v. Bethell (1886) 2 T. L. R. 683, the plaintiffs sued on the balance of account on stock exchange transactions. The defendant pleaded that the plaintiffs had not bought and sold stocks as authorized by him and sought in obtain particulars of the dates of the purchases and sales and the names of the persons to or from whom the shares had been sold or bought and of the amounts paid by the plaintiffs on his behalf and the mode of payment of such money. 18. The Judge in Chambers refused to order the plaintiffs to give further and better answers to interrogatories administered to them. In appeal Manisty J. said that the appeal must be dismissed as the order asked for by the defendant was a mere attempt to get hold of some technical defence to the action. Mathew J. concurring, said that the only effect of allowing the appeal would be to delay the trial and to make an order oppressive to the plaintiffs. 19. In Petre v. Sutherland (1887) 3 T. L. R. 275, the plaintiff, a stock-broker, sued the defendant, his client, for the balance of an account. The defendant, who had had dealings with the plaintiff for fifteen years, claimed to have the accounts reopened for the whole of that period, and with that view to be allowed to examine the plaintiff's books for that period. It was held by the Court of Appeal that the discovery would be useless, unnecessary and oppressive. The defendant was dealing for differences and had taken moneys, but when he was sued for losses he sought to set up a technical defence and to obtain that discovery to assist him. Bowen L. J. observed that the power of discovery was too often abused and its exercise was a matter of discretion. On the other hand in the Universal Stock Exchange Co. v. Crowther (1892) 8 T. L. R. 650, the defendant who was disputing a claim by his stock-brokers on the balance of an account for dealing in shares was allowed to interrogate the plaintiffs as to whether they had, if they acted as brokers, at any time in their 1 possession, or were the owners of, and were entitled to, the various stocks which they claimed to have bought on behalf of the defendant. In the account the same shares appeared to have been bought on one side and sold on the other, and for that reason the interrogatory was allowed. 20. In this case, however, the interrogatories relate not to the particular transactions on which the plaintiffs sue but to their general dealings and the decision in Petre v. Sutherland (1887) 3 T.L.R. 275 seems directly in point. 21. In my opinion, therefore, the summons should be dismissed. Costs reserved to the hearing. 22. The defendant appealed. 23. On the 20th August 1912, the Appeal Court (Scott C. J. and Chandavarkar J.) confirmed the order with costs.

Author: Macleod

Bhagvandas Parashram vs Burjorji Ruttonji Bomonji on 1 April, 1912

Bombay High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA FA No.7 of 2007 Sri Gopinath Pandey & Anr Versus Md.Gaffar ----------- S.S. (Mungeshwar Sahoo,J.) 8. 01.07.2011 As prayed for by the learned counsel for the appellants time till 4th of November 2011 is granted to deposit the deficit court fee stamp of Rs.4810/-, failing which the appeal shall stand dismissed.

Sri Gopinath Pandey & Anr vs Md.Gaffar on 1 July, 2011

Patna High Court - Orders

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 13480 of 2008(D) 1. JERTRUD @ GERTRUDE, W/O.ROCKY, AGED 86, ... Petitioner 2. XAVIER, S/O.ROCKY, AGED 53, Vs 1. STATE OF KERALA, REPRESENTED BY ... Respondent 2. THE DISTRICT SUPERINTENDENT OF 3. THE CIRCLE INSPECTOR OF POLICE, 4. THE SUB INSPECTOR OF POLICE, 5. SEENATH, S/O.SHIHABUDEEN, 6. VISWANATHAN @ VISWAN, S/O. NARAYANAN, 7. XAVIER @ SHOURIYAR, S/O. VAVACHAN, AGED 8. XAVIER, S/O.PAPPU, AGED 48, ERUMULLIL 9. LALI, W/O.XAIVER @ SHOURIYAR, 10. SASI , S/O.KESAVAN, 11. GEORGE, S/O.UMMACHAN, AGED 35 YEARS, 12. THE SECRETARY, GRAMA PANCHAYAT, For Petitioner :DR.V.N.SANKARJEE For Respondent :SRI.PHILIP T.VARGHESE The Hon'ble MR. Justice K.BALAKRISHNAN NAIR The Hon'ble MRS. Justice M.C.HARI RANI Dated :30/05/2008 O R D E R K.BALAKRISHNAN NAIR & M.C.HARI RANI JJ. ----------------------------------------------------- W.P.(C)No.13480 OF 2008 ----------------------------------------------------- DATED THIS THE 30th DAY OF MAY, 2008 J U D G M E N T Balakrishnan Nair, J. There is some dispute between the petitioners and respondents 5 to 11 concerning some properties. The petitioners submit, the party respondents are encroaching into their property and converting a portion of it into a pathway. In the above background, this writ petition was filed seeking appropriate reliefs. 2. In the meantime, the marriage of the 2nd petitioner's daughter was scheduled to be held on 27.4.2008. The petitioners apprehended that the party respondents may cause obstruction to the solemnisation of the marriage. This Court by an interim order granted protection for solemnising the marriage and the marriage is over now. For other reliefs raised in this writ petition, petitioners have to approach the competent civil court.  W.P.(C)No.13480/08 -2- Accordingly, this writ petition is closed, without prejudice to the contentions of both sides and the right of the petitioners to approach the civil court to redress their grievances. K.BALAKRISHNAN NAIR,JUDGE. M.C.HARI RANI, JUDGE. dsn 

Jertrud @ Gertrude vs State Of Kerala on 30 May, 2008

Kerala High Court

ORDER B. Rai, J. 1. This petition under Section 389 Code of Criminal Procedure has been filed, with a prayer to suspend the sentence and recovery of fine imposed by the learned Sessions Judge, Faridkot. 2. Sukhmander Singh and his mother Balbir Kaur were tried for the offence under Section 304-B read with Section 34, I.P.C. in case F.I.R. No. 79 D/- 2-10-1994. They were convicted for the said offence and sentenced to undergo rigorous imprisonment for 10 years each and to pay fine of Rs. 500/- each, and in default of payment of fine to undergo further rigorous imprisonment for two months each. The period of detention of the accused during investigation, enquiry and trial was set off towards the substantive sentence of imprisonment. 3. At the motion stage sentence awarded and fine imposed on Balbir Kaur was suspended vide order dated 9-11-1997 and she was ordered to be released on furnishing bail bonds to the satisfaction of Chief Judicial Magistrate. Faridkot. At the time of admission of appeal, prayer for suspension of sentence, recovery of fine and for releasing on bail was declined. 4. Sukhmander Singh, petitioner seeks suspension of the sentence and fine and prays for release on bail. 5. It has been argued by the learned Counsel for the petitioner that Sukhmander Singh was arrested on 9-10-94. He was convicted and sentenced on 13-11 -1996. From the date of his arrest till 13-11-1996, he was in custody. It has been further argued that the petitioner by now has undergone more than 4 years and 7 months of sentence awarded to him. Therefore, his sentence of 10 years and fine of Rs. 500/- deserves to be suspended and the petitioner deserves to be released on bail. He has placed reliance on the decisions of this Court in Criminal Appeal No. 555-SB of 1995 (O & M) & Criminal Misc. No. 16913 of 1996 decided on November 8, 1996, titled as "Harjit Singh v. State of Punjab" and in Criminal Appeal No. 442 SB-96 in Crl. Misc. No. 20383 of 1996 decided on December 5, 1996 titled as "Lakhwinder Singh v. State of Punjab". 6. In Harjit Singh's case, convicts including Harjit Singh were sentenced to undergo rigorous imprisonment for 2 years and to pay fine of Rs. 100/- or in default of payment of fine to further undergo rigorous imprisonment for 1 month under Section 498-A. They were sentenced to undergo rigorous imprisonment for 10 years under Section 304-B, I.P.C. for the death of his wife. He had undergone 4 years of sentence awarded. Keeping in view the sentence already undergone vis-a-vis the sentence imposed, remaining sentence and recovery of fine were suspended during pendency of appeal and was ordered to be released on bail. Sentence and fine were suspended during the pendency of the appeal on the ground that he had already undergone 2'/2 years sentence out of the sentence awarded by the Trial Court. 7. In Lakhwinder Singh's case (supra) he was convicted and sentenced to undergo rigorous imprisonment for 3 years and pay a fine of Rs. 500/- or in default of payment of fine to undergo further rigorous imprisonment for two months under Section 498-A, I.P.C. He was also sentenced to undergo rigorous imprisonment for ten years under Section 304-B, I.P.C. His prayer for suspension of sentence and fine were declined but on the second bail application, the sentence awarded and fine imposed were suspended on the ground that during the pendency of the appeal he had already undergone 3 years imprisonment of the sentence awarded. 8. In the instant case, the petitioner has already undergone imprisonment for more than 3 years and 7 months. If the petitioner is kept in detention till the decision of the appeal it would not advance the cause of justice especially when the appeal is not likely to be heard in the near future. 9. Therefore, in view of the precedents quoted and the reasons recorded, the sentence awarded and fine imposed on Sukhmander Singh are suspended during the pendency of the appeal. He is ordered to be released on bail on his furnishing bail bonds in the sum of Rs. 20,000/- with two sureties in the like amount to the satisfaction of Chief Judicial Magistrate, Faridkot.

Author: B Rai

Sukhmander Singh And Anr. vs State Of Punjab on 20 May, 1998

Punjab-Haryana High Court

JUDGMENT V.S. Desapandel, J. 1. The suit of the plaintiff-appellant has been dismissed under 0. Xvii, R. 3, Civil Procedure Code. Hence this appeal by the plaintiff. The main question to be considered is whether the plaintiff-appellant committed a 'default' within the meaning of the said' rule so as to justify the dismissal of the suit by the trial Court. 2. The suit was originally brought by m/s. Esso standard eastern Inc. company which was a corporation incorporated in the united states and was thus a foreign company. This foreign company had an undertaking working in India and managed by its Indian subsidiary by the company. This undertaking was acquired by the central government by the Esso(Acquisition of undertakings in India) Act no 4 of 1974.at first, the undertaking vested in the central government. Later, it vested in the Hindustan Petroleum Corporation limited which is a company registered under the Indian companies Act, 1956. An application has, therefore, been made to this court under O.VI, R.17.civil procedure code by the counsel for the plaintiff appellant on 30th July, 1975 for substitution of Hindustan Petroleum corporation limited in the place of M/s .Esso standard eastern Inc. company the learned counsel for the defendant respondent opposed this application under a misconception. He argued firstly that Act 4 of 1974 acquired the Indian under taking of M/s. Esso Eastern Inc. which is not the same name as M/s. Esso standard Eastern Inc. which is the name or the plaintiff. In answer to this objection, the learned counsel for the plaintiff appellant referred to the certificate dated 22-12-1970, a copy of which has been filed by him on 27th November, 1975. this shows that the former name of the plaintiff company was changed in 1970 to Esso Eastern Inc. The learned counsel for the respondent argues that the said copy was not sufficient evidence to prove the change of name which figures in the Act of 1974. The changes of name of such a world famous corporation is a matter of public knowledge and cognizance of it has been taken by the government and parliament of India. We do not think, therefore, that it is necessary for the plaintiff appellant to produce more proof of the change of name. 3. Secondly. it was argued by the respondent that the original plaintiff company, Esso Eastern Inc. ceased to exist and with that the suit filed by it abated. But it is precisely to prevent such abatement that Act No. 4 of 1974 provides that such a suit would not abate and that it shall be continued either by the Central Government in which the Indian undertaking of the company vests or by the successor in which the said undertaking would later vest. 4. We, therefore, allow the application for amendment. Merits, Of The APPEAL- 5. The suit of the plaintiff was dismissed on 6th June, 1964 by the following order: "Present:- Counsel for the parties. Plaintiffs were burdened with Rs. 51D costs on the previous date and Rs. 30 on the date previous to that. Plaintiffs were in all to pay Rs. 80 as costs which were conditional but plaintiffs have failed to pay the same and the counsel for the plaintiffs states that costs were not conditional so he will now pay. But my previous orders are quite clear. Costs were conditional and as the plaintiffs are not ready to pay the costs, evidence of the plaintiffs cannot be recorded. The plaintiff's evidence is, therefore, deemed to be closed. As the plaintiffs' evidence has been closed and as the burden of all the issues was on the plaintiffs so case is to be deemed to have not been issued therefore there is no necessity of deciding the issues separately. The suit is therefore dismissed with costs." 6. The background of the above order was as follows:- On 22nd February, 1964, the case had been fixed for the evidence of the plaintiff. The process fee and diet money were however, paid late by the plaintiff. The result was that though the summonses duly reached all the witnesses, only one of them could be served. The purpose of paying process fee and diet money early is that repeated service of summons could be attempted. If the process fee and diet money are paid late and only one attempted service can be made, then there is a risk that in one attempt all the witnesses may not be served. The plaintiff was, therefore to be blamed for the late payment of process fee and diet money and the trial court was justified in granting adjournment subject to payment of Rs. 30 as costs. The trial court also ordered that the plaintiff shall be responsible to get the witnesses served. The next date for the evidence of the plaintiff was 7th April 1964. Again the plaintiff paid process fee late, but fortunately for it, all the witnesses except one were served. The record does not show whether any of the served witnesses attended the court. However, the trial court further levied adjournment costs of Rs. 50 and allowed the previous costs also to be paid on the following date and adjourned the case for the evidence of the plaintiff for 6th June, 1964. Again the court ordered that the plaintiff was to come with the witnesses on its own responsibility. On 6th June, 1964 the counsel for the appellant submitted that the costs imposed were not conditional and were not justified. The court, however, treated the previous order for payment of costs as being conditional to further progress of the suit. The previous order dated 7th April 1964 is in the handwriting of the Reader of the court. It is, therefore, reasonable to suppose that there may have been some misapprehension in the mind of the counsel as to whether or not the imposition of costs was conditional. The court after perusing the record came to the conclusion that the costs were conditional if that were so, the court ought to have allowed the appellant reasonable time to, pay the costs. 7. The learned counsel for the appellant, Shri Prakash Narain, Advocate (now a judge of this Court), who filed the grounds of appeal has denied that the plaintiff had refused to pay the adjournment costs though the plaintiff could not pay them at the very moment when the case was called out and it wanted the court to hold over the case for a short time so that it may arrange for payment of the adjournment costs. Under the circumstances we are satisfied that the court below. has erred in exercise of its powers under 0. Xvii, R. 3, Civil Procedure Code to decide the suit forthwith. 8. Further, the court dismissed the suit merely because the payment of adjournment costs had been made conditional. Clearly the court thought that it was bound by its own order and had no discretion to give more time to the plain to pay costs. In this view, the trial court was in error. The trial court always had the discretion to give time to the plaintiff for the payment of adjournment costs. If any authority were needed, it is provided by Mahanth Ram Das v. Ganga Das, . 9. As a rule this Court would not interfere with the discretion of the trial court in deciding the suit forthwith under 0. Xvii, R. 3, Civil Procedure Code. But in this particular case, the trial court seems to have been under a misapprehension that once A made the payment of adjournment costs conditional, it had no discretion to allow more time to the plaintiff for payment of costs. It, therefore, failed to exercise the discretion which it had in giving the plaintiff some time to pay the adjournment costs under a mistaken view of law. 10. We, therefore, set aside the order dated 6th June, 1964 dismissing the suit and hold that in the circumstances of the case an opportunity should have been given to the plaintiff to pay the adjournment costs. We order that the parties do appear in the trial court on the 16th November, 1976 and on that date the plaintiff shall pay the adjournment costs to the defendant. Thereupon the trial court shall fix the case for evidence of the plaintiff giving the plaintiff due opportunity for payment of process fee and diet money to summon its witnesses through court without making the plaintiff responsible for enforcing the attendance of the witnesses. If the witnesses remain absent after service, it is open to the trial court to refuse to adjourn the case unless the plaintiff prays for the issue of warrants of arrest against such witnesses. In the circumstances, we order the parties to bear their own costs in this appeal. 11. Appeal allowed.

Author: V Desapandel

Hindustan Petroleum Corporation ... vs Wearwell Cycles Co. (India) Ltd. on 29 October, 1976

Delhi High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 22407 of 2010(O) 1. RAVI, AGED ABOUT 67, S/O. SANKARAN, ... Petitioner Vs 1. BABUKUTTAN, AGED 41, S/O. RAGAVAN, ... Respondent 2. RAGHAVAN, AGED 76, S/O. RAMAN, 3. REKHA RAVI, AGED ABOUT 31, 4. JOSEPH, AGED 79, S/O. MATHEW, 5. CHERIAN, AGED 70, S/O. ULAHANNAN, For Petitioner :SRI.K.T.SHYAMKUMAR For Respondent :SRI.LIJI.J.VADAKEDOM The Hon'ble MR. Justice THOMAS P.JOSEPH Dated :21/10/2010 O R D E R THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.22407 of 2010 -------------------------------------- Dated this the 21st day of October, 2010. JUDGMENT This petition is in challenge of Ext.P7, order dated 29.05.2010 passed by the learned Munsiff, Muvattupuzha rejecting the work memo filed by petitioner/defendant No.1 while Advocate Commissioner was deputed to inspect the property. Respondent Nos.1 and 2 filed the suit for fixation of eastern, southern and northern boundary of plaint A schedule property and for prohibitory injunction against petitioner and respondent Nos.3 to 5. There was also a prayer for mandatory injunction to direct petitioner and respondent Nos.3 to 5 to remove the compound wall projecting into plaint B schedule. Petitioner filed written statement disputing identity of the schedule property. It is contended that the compound wall was constructed as per an agreement with respondent Nos.1 and 2 and that respondent Nos.1 and 2 are not entitled to get reliefs as prayed for. On 29.01.2010 respondent Nos.1 and 2 applied for the issue of a commission with the assistance of Surveyor. That application was allowed on 03.02.2010 and the case was posted for report of the Advocate Commissioner. In the meantime on 29.03.2010 petitioner filed Ext.P5, work memo to direct the Advocate Commissioner report on matters requested therein. That work memo was rejected by the learned Munsiff as per Ext.P7, order for the reasons that there was no application to receive the work memo and that matters requested for in the work memo are not relevant for the decision of the case. That order is  WP(C) No.22407/2010 2 under challenge. Learned counsel for petitioner contended that it is necessary for a fair and just disposal of the suit and to adjudicate the dispute involved that matters requested for in the work memo are reported by the Advocate Commissioner. Learned counsel for respondent Nos.1 and 2 contended that all matters requested for in the first order appointing the Advocate Commissioner are already ascertained by him and hence it is not necessary to depute the Advocate Commissioner again to ascertain matters requested in Ext.P5, work memo. 2. I have been taken through the relevant records. On hearing learned counsel on both sides and perusing the records I find that item Nos.3 and 4 in Ext.P5, work memo can be directed to be ascertained by the Advocate Commissioner. Since the Advocate Commissioner has submitted only a preliminary report (as the learned counsel for petitioner submits and the Advocate Commissioner is yet to submit the final report in the matter) it is only just and proper that the Advocate Commissioner is directed to ascertain item Nos.3 and 4 in Ext.P5, work memo as well. Resultantly this petition is allowed to the extent that Ext.P7, order rejecting Ext.P5, work memo in toto is set aside and the Advocate Commissioner is directed to ascertain matters requested for as item Nos.3 and 4 in Ext.P5, work  WP(C) No.22407/2010 3 memo. Additional batta if any payable to the Advocate Commissioner for ascertaining the said matters shall be fixed by the learned Munsiff and the same shall be paid by the petitioner. THOMAS P.JOSEPH, Judge. cks 

Ravi vs Babukuttan on 21 October, 2010

Kerala High Court

[Complete Act]

Central Government Act

PETITIONER: S. S. SHETTY Vs. RESPONDENT: BHARAT NIDHI, LTD. DATE OF JUDGMENT: 17/09/1957 BENCH: BHAGWATI, NATWARLAL H. BENCH: BHAGWATI, NATWARLAL H. DAS, S.K. GAJENDRAGADKAR, P.B. CITATION: 1958 AIR 12 1958 SCR 442 ACT: Industrial dispute-Wrongful dismissal--Tribunal directing reinstatement-Failure to implement award-Benefit of rein- statement-Monetary value-Computation-Code of Civil Procedure (Act V of 1908), s. 95-Industrial Disputes (Appellate Tribu- nal) Act, 1950 (XLVIII Of 1950), S. 20(1), (2). HEADNOTE: The appellant was in the service of the respondent but sub sequently he was discharged on the plea that he had become surplus 4443 to the requirement of the respondent. The Industrial Tribu- nal found that the respondent had been guilty of unfair labour practice and victimisation and held that the order of discharge was illegal and that he should be reinstated, with arrears of salary and allowances from the date of discharge. The respondent having failed to implement the award, the appellant filed an application under section 2o(2) of the Industrial Disputes (Appellate Tribunal) Act, 1950, for computation of the money value of the benefit of reinstate- ment. The Industrial Tribunal assessed the value of rein- statement at the sum of Rs. 1,000 by adopting the measure of damages as laid down under section 95 of the Code of Civil Procedure. Under the bye-laws framed by the respondent the services of an employee could be terminated on giving one month's notice. Held, that the monetary value of the benefit of reinstate- ment is to be computed not on the basis of a breach of the contract of employment nor on the basis of a tort alleged to have been committed by the employer by reason of the non- implementation of the direction for reinstatement contained in the award. The computation has to be made by the Indus- trial Tribunal having regard to all the.circumstances of the case, such a?, the terms and conditions of employment, the tenure of service, the possibility of termination of the employment at the instance of either party, the possibility of retrenchment by the employer or resignation or retirement by the employee and even of the employer himself ceasing to exist, or of the employee being awarded various benefits including reinstatement under the terms of future awards by Industrial Tribunals in the event of industrial disputes arising between the parties in the future. The observations of Greer L. J. in Salt v. Power Plant Co., Ltd. (1936) 3 All E.R. 322, 325, relied on. In the instant case, having regard to the bye-laws, the appellant would have been entitled to only one month's salary in lieu of notice, as and by way of compensation for non-implementation of the direction for reinstatement, but this right could not be availed of by the respondent in view of the finding of the Tribunal that he was guilty of unfair labour practice and victimisation, and a correct estimate of the value of the benefit of reinstatement had to be made bearing in mind all the relevant factors. JUDGMENT: CIVIL APPELLATTE JURISDICTION: Civil Appeal No. 329 of 1956. Appeal by special leave from the decision dated April 29, 1954, of the Labour Appellate Tribunal, Lucknow, in Appeal No. III-97 of 1953 arising out of the Award dated January 24, 1953, made by the 57 444 Central Government Industrial Tribunal, Calcutta, in Appli- cation No. 106 of 1952. B.R. L. Iyengar and B. C. Misra, for the appellant. Veda Vyasa, K. L. Mehta and I. S. Sawhney, for the respond- ent. 1957. September 17. The following Judgment of the Court was delivered by BHAGWATIJ.-This appeal with special leave is directed against the decision of the Labour Appellate Tribunal of India, Lucknow, confirming, on appeal, the award made by the Central Government Industrial Tribunal, Calcutta, in a dispute between the appellant and the respondent. The appellant took up service with the respondent then knownm the Bharat Bank Ltd., with effect from July 1, 1944, as an Inspector at Bombay in the grade of Rs. 170-10-200-20- 400 and was given three increments when the first increment fell due as from October 1, 1945. He was also given promo- tions on October 1, 1946, and on October 1, 1947, and was drawing Rs. 240 per month plus a special allowance for a servant -of Rs. 30 per month at the time when he was dis- charged by the respondent on August 5, 1949, on the plea that he had become surplus to the requirement of the re- spondent. The Government of India, Ministry of Labour had by Notification No. LR. 2 (273), dated February 21, 1950, referred for adjudication to the Central Government Indus- trial Tribunal at Calcutta the disputes pending between the various banks and their employees, and the appellant's case came up for hearing in the course of those proceedings before the Tribunal which held on December 5, 1950, that the order of discharge of the appellant was illegal and that the respondent should take him back in service as well as pay the appellant his arrears of salary and allowances from the date of discharge. This direction was to be carried out within a month of the date of the publication of the award which was actually published in the Gazette of India (Part II, Section 3, page 1143) of December 30, 1950. On January 30, 1951, the respondent preferred an appeal against the said order to the Labour Appellate Tribunal, Calcutta, sitting at Allahabad, which by its decision dated September 25, 1951, upheld the directions given by the Industrial Tribunal and dismissed the appeal. The respond- ent failed and neglected to implement the decision of the Labour Appellate Tribunal within the prescribed period in spite of the appellant's intimating to the respondent by his letter dated October 10, 1951, at its address at 37, Faiz Bazar, Delhi, that he was at Bombay and that he would like to know where he should report himself for duty. By this letter he also claimed arrears of salary and allowances which had not till then been paid to him, apart from the payments made under the interim orders of the Labour Appel- late Tribunal. The respondent did not send any reply to the said letter with the result that the appellant served on the respondent a notice on November 5, 1951, through his solici- tors intimating that the respondent had failed and neglected to reinstate the appellant inspite of his letter dated October 10, 1951, requesting it to do so. The appellant further intimated to the respondent that by reason of its failure to reinstate him within the prescribed period the respondent had committed a breach of the directions of the Labour Appellate Tribunal and the appellant had therefore become entitled to compensation for the same. The appellant therefore called upon the respondent to pay to him a sum of Rs. 32,388 as the amount of compensation to which he was entitled on account of the pay he would have earned till his 55th year, i.e., upto May 4, 1960, Provident Fund contribu- tion on pay at 6 1/4 % as allowed by the Rules of the Bank and gratuity for about 16 years from July 1, 1944, to May 4, 1960, at month's pay per year of service, adjustment being made at 6% per annum for payment, if made as demanded. This amount was exclusive of other claims against the respondent such as amounts due to him under the order dated February 17, 1951, of the Labour Appellate Tribunal of India, Allaha- bad, arrears of salary etc., withheld by the respondent. A,-, the respondent failed 446 and neglected to send any reply to the said notice or to comply with the requisitions therein contained, the appel- lant made an application to the Government of India on February 22, 1952, for recovery of money under s. 20(1) of the Industrial Disputes (Appellate Tribunal) Act, 1950 (hereinafter referred to as " the Act ") to which he re- ceived a reply on May 13, 1952, stating that an application for recovery of money under that section could be enter- tained only if it was confined to the arrears of salary and allowances from the date of his discharge upto the date of the application, and advising him to submit a revised appli- cation accordingly. A suggestion was also made in that letter that the appellant might approach the Industrial Tribunal, Calcutta, under s.20(2) of the Act for a computa- tion in terms of money of the benefit of reinstatement, as it was only when a definite sum had been so determined that action for recovery under s. 20(1) of the Act could be taken by the Government. It appears that in the meantime the respondent had trans- ferred its banking business under an agreement with the Punjab National Bank Ltd., and had also changed its name to Bharat Nidhi Ltd. By its letter dated April 3, 1952, the respondent in its new name of the Bharat Nidhi Ltd., ad- dressed a letter to the appellant stating that due to the transfer of its liabilities and equivalent assets to the Punjab National Bank Ltd., and the closure of all its branches in India, the appellant was surplus to its require- ments. It therefore purported to give to the appellant two months' notice of its intention to terminate the said award and his services in terms of s. 19(6) of the Industrial Disputes Act, 1947. The letter further proceeded to state that the appellant had not so far reported himself for duty at -its office at Delhi which was the only office that it had in India since March 10, 1951, and which was its Head Office and registered office before that date. The appel- lant replied by his Advocate's letter dated April 16, 1952, pointing out that in spite of his letter dated October 10, 1951, addressed to the respondent the latter had not in- formed him as 447 to when and where he should report for duty nor had it cared to respond to the same. He intimated that he had already made an application to the Government of India under s. 20(1) of the Act and was awaiting the result thereof. The letter dated April 3, 1952, addressed by the respondent to the appellant was under the circumstances characterized by the appellant as evidently addressed to him with some ulte- rior motive. The respondent by its letter dated May 10, 1952, addressed to the appellant reiterated that in spite of its asking the appellant to do so, he had failed to join its office. It stated that by its letter dated April 3, 1952, it had clearly asked the appellant to join at Delhi but that the appellant had failed to do so and the conduct of the appellant clearly amounted to evasion of its instructions and absence from duty. It also stated that the notice dated April 3, 1952, had effect from the date of receipt thereof by the appellant, viz., April 9, 1952. No further reply was made by the appellant to the aforesaid letter but it appears that on June 28, 1952) the respondent addressed a letter to the Under Secretary, Government of India, New Delhi, in answer to a communication dated June 12, 1952, addressed by the latter to it that the appellant had already been paid arrears of his pay and allowances awarded by the Tribunal, that he was further asked by it to resume duty which he had failed to do, and, in the circumstances be was being consid- ered absent from duty. A copy of the letter dated May 10, 1952, addressed by it to the appellant as also a copy of the letter of the same date addressed to the Chief Labour Com- missioner (Central), New Delhi, were enclosed therewith for information. Nothing further transpired and on October 8, 1952, the appellant filed the petition under s. 20(2) of the Act for computation of the money value of the benefit of reinstatement because of non-implementation of the direc- tions contained in the award by the respondent. He claimed a sum of Rs. 47,738 computed in the mariner indicated in annexure 'D' to that petition. The respondent filed its written statement on December 4, 1952, wherein the only plea taken was 448 that there was a flagrant violation by the appellant of its instructions to join duty and that thereby the appellant had forfeited his right to claim reinstatement and all benefits flowing therefrom. It further stated that without prejudice and with a view to close his case it had offered him salary upto June 19, 1952, by its letter dated November 15, 1952, under intimation to the Conciliation Officer, Central Gov- ernment, New Delhi, but the appellant had not replied to the same. The respondent further contended that the award in question was in force for -only one year under s. 19(3) of the Industrial Disputes Act, 1947, and that the same was therefore no longer in force and the respondent had already terminated the same. The claim of the appellant was there- fore illegal and preposterous and the respondent prayed that the petition be dismissed with costs. The petition came up for hearing before the Central Govern- ment Industrial Tribunal at Calcutta and it was observed that there were three aspects of the case, viz., (i) whether the respondent refused to implement the award or the subse- quent decision of the Labour Appellate Tribunal by not taking the appellant in service as directed by the Tribunals (as urged on behalf of the appellant); (ii) whether it was the petitioner who failed to resume his duty in spite of having been asked to do so and thereby forfeited the right conferred upon him in terms of the award (as urged by the respondent); (iii) To what relief or compensation in lieu of reinstatement the petitioner was entitled in the peculiar circumstances in which Bharat Bank ceased functioning soon after the award of December, 1950, and in the light of various other applications of other employees in which only retrenchment relief was awarded. On the first two questions the Industrial Tribunal held in favour of the appellant and then proceeded to consider the third question, viz., as to what relief or compensation in lieu of reinstatement the appellant was entitled to. After discussing the legal position it came to the conclusion that the measure of damages was that laid down under s. 95 of. the Code of Civil Procedure which put it at a figure 449 of Rs. 1,000. It therefore assessed the value of rein. statement asked for at the sum of Rs. 1,000 and awarded that sum under s. 20(2) of the Act. The other prayers of the appellant regarding arrears were not dealt with by the' Industrial Tribunal in so far as they were the subject- matter of the application under s. 20(1) of the Act which the appellant had already made to the Central Government. The appellant being, aggrieved by the award of the Industri- al Tribunal carried an appeal to the Labour Appellate Tribu- nal of India at Lucknow. A preliminary objection was taken by the respondent before the Labour Appellate Tribunal that the appeal was not competent under the provisions of s. 7 of the Act. This objection found favour with the Labour Appel- late Tribunal and holding that no substantial question of law was raised by the award it dismissed the appeal as incompetent. The appellant applied for and obtained special leave to appeal against this decision of the Labour Appel- late Tribunal and that is bow the present appeal is before us. The two questions of fact, viz., (i) whether the respondent refused to implement the award by not taking .the appellant back in service and (ii) whether it was the appellant who had failed to resume his duty in spite of having been asked to do so and thereby forfeited the right conferred upon him in terms of the award are concluded by the findings arrived at by the Industrial Tribunal after due consideration of the correspondence which passed between the parties. We also have perused the said correspondence and we see no reason to disturb those findings. If therefore the appellant was ready and willing to be reinstated in the service of the respondent and was not guilty of any default in the matter of reporting himself for duty, the only question that re- mains to be considered by us here is what is the amount at which this benefit of reinstatement which was awarded to the appellant should be computed within the meaning of s. 20(2) of the Act. That was the only scope of the enquiry before the Industrial Tribunal and we have to determine what is the correct method of such computation. Section 20(2) of the Act reads as follows:-- Section 20.- Recovery of money due from an employer under an award or decision. (1)........................... (2)Where any workman is entitled to receive from the empoly- er any benefit under an award or decision of an industrial tribunal which is capable of being computed in terms of money, the amount at which such benefit should be computed may, subject to the rules made under this Act, be determined by that industrial tribunal, and the amount so determined may be recovered as provided for in subsection (1). It may be noted that sub-section (1) above referred to provides that:- any money due from an employer under any award or decision of an industrial tribunal may be recovered as arrears of land revenue or as a public demand by the appropriate Gov- ernment on an application made to it by the person entitled to the money under that award or decision. The petition of the appellant proceeded on the basis that the benefit of reinstatement which he was entitled to re- ceive under the terms of the award was capable of being computed in terms of money and that position was not disput- ed by the respondent. Even though there was no plea by the respondent in its written statement that there were any circumstances which made it impossible for the respondent to reinstate the appellant in its service except the failure of the appellant to resume his duty in spite of his having been asked to do so, the respondent. was allowed to lead evidence in regard to the transfer of its liabilities and equivalent assets to the Punjab National Bank Ltd., and the closure of its banking business in all of its branches in India in order to show that the respondent was not in default and the value of the benefit of reinstatement in terms of money had thus dwindled into insignificance. Reliance was placed on the further circumstance that the Punjab National Bank Ltd., was not under any obligation to take into its employ the employees of the respondent, that as a matter of fact only 10% of the employees of the 451 respondent bad been absorbed by the Punjab National Bank Ltd., and in regard to the rest who were not so absorbed the only sums awarded to them by the Industrial Tribunals were salary for the notice month. and retrenchment compensation. We are of opinion that these circumstances cannot be availed of by the respondent. It is no doubt true that the respond- ent transferred its liabilities and equivalent assets to the Punjab National Bank Ltd., some time in March 1951. The correspondence which was carried on between the appellant and the respondent however shows that in spite of such transfer to the Punjab National Bank Ltd., and the change of the name of the respondent from the Bharat Bank Ltd., to Bharat Nidhi Ltd., the respondent never contended that Bharat Nidhi Ltd. was not in a position to reinstate the appellant in its service. The correspondence proceeded all along on the footing that Bharat Nidhi Ltd., was in a posi- tion to reinstate the appellant in its service and as a matter of fact took up the plea that it had invited the appellant to join it at Delhi but that the appellant bad failed and neglected to do so. Not only in its letter dated May 10, 1952, did the Bharat Nidhi Ltd., state that the appellant's failure to join it at Delhi amounted to absence from duty but as late as June 28, 1952, in its letter ad- dressed to the Under Secretary to the Government of India, New Delhi, it reiterated that the appellant was asked to resume duty which he had failed to do and that in the cir- cumstances he was being considered as absent from duty. It is clear therefore that the Bharat Nidhi Ltd., was all the time insisting that the appellant should join its service at Delhi and never took up the plea that the transfer of its liabilities and equivalent assets to the Punjab National Bank Ltd., and also the possibility of the Punjab National Bank Ltd., not absorbing the appellant in its employ were circumstances available to it by way of defence. The appel- lant having become surplus to its requirement was of course a plea taken by it in the course of the correspondence and by its letter dated April 3, 1952, the Bharat Nidhi Ltd., gave the appellant two months' notice of its intention to 58 452 terminate the award and service of the appellant. In this behalf it also relied on the provisions of s. 19 (6) of the Industrial Disputes Act, 1947, but when it came to file its written statement it did not put forward that plea as an answer to the claim of the appellant under s. 20(2) of the Act. We fail to understand therefore how these circum- stances could ever have been taken into consideration by the Industrial Tribunal while arriving at the computation in terms of money of the benefit of reinstatement awarded to the appellant under the terms of the award. Such computa- tion has therefore got to be made regardless of those cir- cumstances which were put forward by the respondent as a last resort. The Industrial Tribunal computed the money value of this benefit on the analogy of s. 95 of the Code of Civil Proce- dure. It treated the non-implementation of the direction in the -award made by an Industrial Tribunal on a par with the obtaining of arrest, attachment or injunction on insuffi- cient grounds and awarded to the appellant the sum of Rs. 1,000 which it deemed to be a reasonable compensation for the injury caused to him. Even if the direction given by the Industrial Tribunal in its award be treated as a statu- tory obligation imposed on the respondent, this certainly could not be a measure of compensation or damaoes and it was fairly conceded by the learned counsel for the respondent that he was not in a position to support that part of the judgment. Mr. lyengar who appeared for the appellant before us urged that the computation of the money value of the benefit of reinstatement awarded to the appellant should be made on one or the other of the three bases which he suggested for the purpose, viz., (i) the order of reinstatement should be construed as entitling the appellant to the full tenure of service in accordance with the terms of the original con- tract and the appellant should be awarded compensation commensurate with the salary and the benefits which he would have earned during his service with the respondent for the full term of 55 years which was the age of superanntiation; (ii) the non-implementation of the direction as 453 to reinstatement should be treated as a breach of contract on the part of the respondent and the appellant should be awarded damages for breach of the contract which would be calculated again on the same, basis; (iii) the non-implemen- tation should be treated as a breach of a statutory duty and the appellant should be awarded damages for non-implementa- tion as on a tort committed by the respondent. The appel- lant would in that event be entitled not only to general damages but also special damages by reason of oppressive conduct on the part of the respondent. The position- as it obtains in the ordinary law of master and servant is quite clear. The master who wrongfully dismisses his servant is bound to pay him such damages as will compensate him for the wrong that he has sustained. " They are to be assessed by reference to the amount earned in the service wrongfully terminated and the time likely to elapse before the servant obtains another post for which he is fitted. If the contract expressly provides that it is terminable upon, e.g., a month's notice, the damages will ordinarily be a month's wages.................. No compensa- tion can be claimed in respect of the injury done to the servant's feelings by the circumstances of his dismissal, nor in respect of extra difficulty of finding work resulting from those circumstances. A servant who has been wrongfully dismissed must use diligence to seek another employment, and the fact that he has been offered a suitable post may be taken into account in assessing the damages." (Chitty on Contracts, 21st Ed., Vol. (2), p. 559 para. 1040). If the contract of employment is for a specific term, the servant would in that event be entitled to damages the amount of which would be measured prima facie and subject to the rule of maitigation in the salary of which the master had deprived him. (Vide Collier v. Sunday Referee Publishing Co., Ltd. (1)). The servant would then be entitled to the whole of the salary, benefits, etc., which he would have earned had be continued in the employ of the master for the full (1) [1940] 4 All E.R. 237. 454 term of the contract, subject of course to mitigation of damages by way of seeking alternative employment. Such damages would be recoverable by the servant .for his wrongful dismissal by the master only on the basis of the master having committed a breach of the contract of employ- ment. If, however, the contract is treated as subsisting and a claim is made by the servant for a declaration that he continues in the employ of the master and should be awarded his salary, benefits, etc., on the basis of the continuation of the contract, the servant would be entitled to a declara- tion that he continues in the employ of the master and would only be entitled to the payment of salary, benefits, etc., which accrued due to him up to the date of the institution of the suit. The benefit of reinstatement which is awarded to a workman under the terms of the award does not become a term or condition of the contract between him and the employer. There are no doubt other reliefs by way of changes in the terms and conditions of employment which when awarded by the appropriate tribunal might be treated as implied terms of the contract between the employer and the workers to whom the award applies and would enure for the benefit of the worker until varied by appropriate legal proceedings. There is no statutory provision in that behalf contained in the Industrial "Disputes Act, 1947. But it is interesting to note that in the Industrial Disputes Order, 1951, obtaining in England there is enacted s. 10 which runs as follows: Section 10: Award to be implied term of contract: Where an award on a dispute or issue has been made by the Tribunal then as from the date of the award or from such other date, not being earlier than the date on which the dispute or issue to which the award relates first arose, as the Tribu- nal may direct, it shall be an implied term of the contract between the employer and workers to whom the award applies that the terms and conditions of employment to be observed under the contract shall be in accordance with the award until varied by agreement between the parties or by a subse- quent award of the Tribunal 455 or until different terms and conditions of employment in respect of the workers concerned are settled through the machinery of negotiation or arbitration for the settlement of terms and conditions of employment in, the trade or industry or section of trade or industry or undertaking in which those workers are employed. Whatever be the position in regard to the terms and condi- tions of employment thus varied in accordance with the terms of the award, the benefit of reinstatement awarded to a workman certainly cannot be treated as part of the contract between him and the employer. The effect of an order of reinstatement is merely to set at nought the order of wrong- ful dismissal of the workman by the employer and to rein- state him in the service of the employer as if the Contract of employment originally entered into had been contiuning. The terms and conditions of the contract which obtained when the workman was in the employ of the employer prior to his wrongful dismissal which has been set aside continue to govern the relations between the parties and the workman continues in the employ of the employer under those terms and conditions. There is no variation of those terms and conditions of the contract. The only thing which happens is that the workman is reinstated in his old service as before. The monetary value of the benefits of such reinstatement is therefore to be computed not on the basis of a breach of the contract of employment nor on them basis of a tort alleged to have been committed by the employer by reason of the non- implementation of the direction for reinstatement contained in the award. The analogy of a suit for a declaration that the workman is continuing in the employ of the employer and that he should be paid the safary and benefits, etc., which would have been earned by him up to the date of the institu- tion of the suit also does not strictly apply for the simple reason that the workman here is not asking for a declaration that-he is still continuing in service on the ground that there was a termination of his service after the award, which termination is void. What he is asking for is a computation in terms 456 of money of the benefit of reinstatement which was granted to him by the Industrial Tribunal and which the employer did not implement. The purpose of the enactment of s. 20(2) of the Act is not to award to the workman compensation or damages for a breach of contract or a breach of a statutory obligation on the part of the employer. Any money which is due from an em- ployer under the award can by virtue of the provisions of s. 20(1) of the Act be recovered by the appropriate Government on an application made to it by the workman. Where however any benefit which is not expressed in terms of money is awarded to the workman under the terms of the award it will be necessary to compute in terms of money the value of that benefit before the workman can ask the appropriate Govern- ment to help him in such recovery. Section 20 sub-s. (2) provides for the computation in terms of money of the value of such benefit and the amount at which such benefit should be computed is to be determined by the Industrial Tribunal to which reference would be made by the appropriate Govern- ment for the purpose. Such computation has relation only to the date from which the reinstatement of the workman has been ordered under the terms of the award and would have to be made by the Industrial Tribunal having regard to all the circumstances of the case. The Industrial Tribunal would have to take into account the terms and conditions of em- ployment, the tenure of service, the possibility of termina- tion of the employment at the instance of either party, the possibility of retrenchment by the employer or resignation or retirement by the workman and even of the employer him- self ceasing to exist or of the workman being awarded var- ious benefits including reinstatement under the terms of future awards by Industrial Tribunals in the event of indus- trial disputes arising between the parties in the future. Even in the case of ordinary contracts 'between master and servant such considerations have been imported by the courts. The observations of Greer, 457 L.J., in Salt v. Power Plant Co., Ltd. (1) are apposite in this context: " This is the case of a man who had, according to my view, got an engagement which was to last for life, or at any rate for the joint lives of himself and the company, but I think for his life, because, I think there are authorities to the effect that if a company winds up, that is a dismissal of the servants, and they can then prove for damages and get their dividend, whatever it may happen to be. Fortunately, the company has not been wound up, but in estimating the damages, of course, the tribunal estimating them will have to take into consideration the fact that at any time after June 26, 1935, it might have appeared to the directors that they had good reasons for terminating the plaintiff's serv- ices, reasons connected with his conduct. The present value of what his salary would be for the rest of his life must also be considered, and there must also be taken into ac- count the fact that he is a man who might at any time termi- nate his service by his life coming to an end, and other matters with which I need not deal." These and similar considerations would equally be germane in the matter of the computation in terms of money of the value of the benefit of reinstatement which was awarded to the appellant in the case before us. Turning therefore to the terms and conditions of employment we find that the respondent had enacted bye-laws for the employees of Bharat Bank Ltd., which were applicable to the appellant. Bye-law 9 provides that an employee may resign from the service of the respondent by giving one month's notice. Bye-law 11 provides that the respondent shall have the option to terminate an employee's service on giving him the same notice as he is required to give to the respondent under rule No. 9 (which can be served even when the employee may be on leave), or by paying him salary for the notice period in lieu of notice, in the absence of an agreement to the contrary, provided that no notice shall be necessary when he is (1) [1936] 3 All E.R. 322, 325. dismissed on account of misconduct, dishonesty, gross negli- gence, insubordination or disregard of any of the standing instructions. Bye-law 13 lays down that every employee is required to retire on attaining the age of 55 years. He may be retained in service after that age only with the express sanction of the authorities but such extension of service will not exceed more than 2 years at a time. If regard be had to these terms and conditions, it was possible for the respondent to terminate the service of the appellant by paying him one month's salary in lieu of no- tice. If there was nothing more the appellant would have been entitled only to that amount as and by way of compensa- tion for nonimplementation of the direction for reinstate- ment. There was however a finding recorded by the Industri- al Tribunal which made the award dated December 5, 1950, that the respondent had been guilty of unfair labour prac- tice and victimization and the ordinary right, which the respondent would have been in a position to exercise, of terminating the service of the appellant on giving him one month's salary in lieu of notice could not be availed of by the respondent. On an industrial dispute raised by the appellant on the respondent's terminating his service at any time in the future, it would be open to the Industrial Tribunal to go into the question whether the termination of the appellant's service by the respondent was justified and if the Industrial Tribunal came to an adverse conclusion, it would be open to it to reinstate the appellant in the serv- ice of the respondent with all back salary, allowances, etc. Even if the respondent wanted to retrench the appellant, the same considerations would arise with a possible result against the respondent. On the other hand, there was also a possibility of the respondent being in the right and being entitled to lawfully terminate the service of the appellant in which event of course the appellant would be without any redress whatever. In computing the money value of the benefit of reinstatement the Industrial Tribunal would also have to take into account the present value of what his salary, benefits, 459 etc' would be till he attained the age of superannuation and the value of such benefits would have to be computed as from the date when such reinstatement was ordered under the terms of the award. Having regard to the considerations detailed above it is impossible to compute the money value of this benefit of reinstatement awarded to the appellant with mathematical exactitude and the best that any Tribunal or Court would do under the circumstances would be to make as correct an estimate as is possible bearing of course in mind all the relevant factors pro and con. We have ourselves devoted very anxious thought to this aspect of the matter and we have come to the conclusion that having regard to all the circumstances of the case it would be reasonable to compute the benefit of reinstatement which was awarded to the appel- lant at an amount of Rs. 12,500 (Rupees twelve thousand and five hundred only). We accordingly allow the appeal and set aside the decision of the Labour Appellate Tribunal of India, Lucknow as well as the award made by the Central Government Industrial Tribunal, Calcutta and award that the appellant shall recov- er from the respondent the said sum of Rs. 12,500 (Rupees twelve thousand and five hundred only) being the computation of the money value of the benefit of reinstatement awarded to him under the terms of the award of the Central Govern- ment Industrial Tribunal at Calcutta dated December 5, 1950. The respondent will pay the appellant's costs of this appeal as well as the proceedings before the Industrial Tribunal and the Labour Appellate Tribunal. Appeal allowed.

Author: N H Bhagwati

S. S. Shetty vs Bharat Nidhi, Ltd on 17 September, 1957

Supreme Court of India

IN THE HIGH COURT OF KERALA AT ERNAKULAM FAO No. 308 of 2006() 1. REV.T.O.OOMMEN, ... Petitioner 2. M.M.PHILIP, S/O.BISHOP M.C.MANI, Vs 1. ANNAMMA MATHEW, ... Respondent 2. M.M.JOHN, 3. M.M.YESUDAS, For Petitioner :SRI.A.KRISHNAN For Respondent : No Appearance The Hon'ble MR. Justice KURIAN JOSEPH The Hon'ble MR. Justice A.K.BASHEER Dated :03/01/2007 O R D E R KURIAN JOSEPH & A.K.BASHEER, JJ. ---------------------------------------------- F.A.O. No.308 of 2006 ---------------------------------------------- Dated 3rd January, 2007. J U D G M E N T Kurian Joseph, J. This appeal is directed against the order dated 15.10.2005 in I.A.522/04 in O.S.No.35/04 on the file of the Sub Court, Cherthala. Though several grounds are raised and several contentions are taken, ultimately, learned counsel for the appellants submits that there may be a direction to the court below to dispose of the suit, O.S.35/04 expeditiously. Therefore, without expressing any opinion as to the merits of the case, this appeal is disposed of directing the Sub Court, Cherthala to dispose of O.S.35/04 expeditiously. KURIAN JOSEPH, JUDGE. A.K.BASHEER, JUDGE. tgs  KURIAN JOSEPH & A.K.BASHEER, JJ ---------------------------------------------- W.P.(C) NO. OF 2004 ----------------------------------------------

Rev.T.O.Oommen vs Annamma Mathew on 3 January, 2007

Kerala High Court

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Smt. Santosh & Others vs State Of U.P. & Others on 16 August, 2010

Allahabad High Court

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Writ Petition No. 6641 of 2007 DATE OF DECISION : AUGUST 25, 2009 BALVIR SINGH ....... PETITIONER(S) VERSUS STATE OF PUNJAB & ORS. .... RESPONDENT(S) CORAM : HON'BLE MR. JUSTICE AJAI LAMBA PRESENT: Mr. MS Joshi, Advocate, for the petitioner(s). Mr. YK Sharma, DAG, Punjab. AJAI LAMBA, J. (Oral) August 25, 2009 ( AJAI LAMBA ) Kang JUDGE For the reasons stated in Civil Writ Petition No. 19048 of 2003 (Kalyan Singh v. State of Punjab and others), this petition is allowed in terms of judgment rendered in CWP 7323 of 1999 (Hardarshan Singh v. State of Punjab and others) decided on 6.8.2002. 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest?

Balvir Singh vs State Of Punjab & Ors on 25 August, 2009

Punjab-Haryana High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM RCRev..No. 110 of 2008() 1. MULIYOLI USSAIN, S/O. BEERAN, ... Petitioner Vs 1. K. SUDHEESH, S/O. KRISHNANKUTTY, ... Respondent For Petitioner :DR.K.B.MUHAMED KUTTY (SR.) For Respondent :SRI.C.P.MOHAMMED NIAS The Hon'ble MR. Justice P.R.RAMAN The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR Dated :09/07/2008 O R D E R P.R.RAMAN & T.R.RAMACHANDRAN NAIR, JJ. ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ R.C.R.No.110 of 2008-B ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ Dated this the 9th day of July, 2008 O R D E R RAMAN, J. The petitioner is a tenant of a building who is faced with an order of eviction passed under Section 11(2)(b) and S.11(3) of the Kerala Building (Lease and Rent Control) Act. The landlord is an Advocate who sought eviction of the tenanted premises for his bona fide need for starting his office. 2. After arguing for some time, learned counsel appearing for the petitioner fairly submitted that he may be given reasonable time to surrender vacant possession of the building and he is withdrawing his contentions raised in this petition. We put this suggestion to other side and after hearing both sides, we accept the submission made by the learned counsel. Accordingly, the Rent Control Petition is dismissed as withdrawn. However, the execution of the order of eviction passed by the court below will stand deferred till 31/03/2009 on the following conditions:- R.C.R.NO.110/2008 -:2:- ii. That he shall also deposit the entire arrears of rent as on date within the aforesaid period of three weeks before the Execution Court. iii.That he shall not induct any third party into the premises. iv.That he shall continue to pay the amount equivalent to the monthly rent for use and occupation, until vacant possession of the premises is surrendered to the landlord. In case the tenant fails to comply with any of the aforesaid conditions, the order of eviction passed by the authorities below shall become enforceable forthwith. P.R.RAMAN, Judge T.R.RAMACHANDRAN NAIR, Judge ms 

Muliyoli Ussain vs K. Sudheesh on 9 July, 2008

Kerala High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.29135 of 2010 JUDAGIR YADAV S/o Prasadi Yadav, resident of village Chak Abgil, Police Station-Ariari, (Kasar) District Sheikhpura ... ...........Petitioner. Versus STATE OF BIHAR .............Opposite party. ----------- 3. 12.10.2010 Having heard learned counsel for the petitioner and learned counsel for the State as also taking into account that the allegation of the prosecutrix of attempting her rape by the petitioner gets sufficient corroboration from the case- diary and that the reliance placed by the learned counsel for the petitioner on paragraph No. 9 of the case diary pertaining to statement of one Raj Kumar Raut admittedly not present in or around the place of occurrence being the house of the prosecutrix but at a distant Chapakal of the School, not good enough to demolish the version of other witnesses recorded in paragraph no. 4, 6, 7, 9, 10, 11 and 18 of the case diary this Court would find that there are sufficient materials to prima- facie substantiate such serious allegation against the petitioner constituting 2 offence under Sections 376/511 of the Indian Penal Code. That being so, this Court is not inclined to grant bail to the petitioner for the present. However, the petitioner may renew his prayer for bail after completing one year of his further judicial custody from today if his trial itself is not concluded in the aforesaid period of one year. The trial court therefore must make its all sincere efforts to conclude the trial by 10th October 2011. With the aforementioned observation and direction, this application is rejected. kanchan/- ( Mihir Kumar Jha, J.)

Judagir Yadav vs State Of Bihar on 12 October, 2010

Patna High Court - Orders

Gujarat High Court Case Information System Print CA/3824/2008 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL APPLICATION - FOR CONDONATION OF DELAY No. 3824 of 2008 In SECOND APPEAL (STAMP NUMBER) No. 30 of 2008 ========================================================= RAMCHAND RAUTA KOLI ? Applicant Versus JAGMAL RANCHHOD PATEL & 2 - Respondents ========================================================= Appearance : MR NIKHIL S KARIEL for Applicant : 1, None for Respondents : 1 - 3. ========================================================= CORAM : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 28/03/2008 ORAL ORDER Notice returnable on 23.4.2008. (S.R.BRAHMBHATT, J.) pallav     Top

Author: S.R.Brahmbhatt,&Nbsp;

Ramchand vs Jagmal on 22 March, 2011

Gujarat High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8722 of 2010 1. MAHENAJ BEGAM, W/O MD. AFROZ ALAM R/O VILL BISHAHARIA, P.S.BHARGAMA, DISTT-ARARIA Versus 1. THE STATE OF BIHAR 2. THE DISTRICT MAGISTRATE, ARARIA 3. THE DISTRICT WELFARE OFFICER, ARARIA 4. THE BLOCK DEVELOPMENT OFFICER, BHARGAMA, DISTT- ARARIA 5. THE CHILD DEVELOPMENT PROGRAMME OFFICER, BHARGAMA, DISTT-ARARIA 6. THE MUKHIA, GRAM PANCHAYAT RAJ BISHHARIA, BLOCK BHARGMA, DISTT-ARARIA with CWJC No.8944 of 2010 1. HIRAWATI DEVI W/O JAIKANT PASWAN R/O VILL.- REHUWA, P.S. RANIGANJ, DISTT.- ARARIA Versus 1. THE STATE OF BIHAR 2. THE SECRETARY, DEPARTMENT OF SOCIAL WELFARE, GOVT. OF BIHAR 3. THE DIRECTOR, INTEGRATED CHILD DEVELOPMENT SCHEME, UNDER DEPARTMENT OF SOCIAL WELFARE, GOVT. OF BIHAR, PATNA 4. THE DISTRICT MAGISTRATE, ARARIA 5. THE DISTRICT WELFARE OFFICER, ARARIA 6. THE CHILD DEVELOPMENT PROJECT OFFICER, RANIGANJ BLOCK RANIGANJ, DISTT.- ARARIA 7. THE BLOCK DEVELOPMENT OFFICER, RANIGANJ, ARARIA 8. THE MUKHIA, GRAM PANCHAYAT RAJ CHHATIYONA, P.S. RANIGANJ, DISTT.- ARARIA with CWJC No.9198 of 2010 1. MEENA DEVI, W/O MATHURANAND MANDAL, R/O VILLAGE JAMUA, P.S.- TARABARI,DISTRICT-ARARIA. Versus 1. THE STATE OF BIHAR. 2. THE DISTRICT MAGISTRATE, ARARIA. 3. THE DISTRICT WELFARE OFFICER, ARARIA. 4. THE BLOCK DEVELOPMENT OFFICER, ARARIA, DISTRICT- ARARIA. 5. THE CHILD DEVELOPMENT PROGRAMME OFFICER, ARARIA, DISTRICT-ARARIA. 6. THE MUKHIA, GRAM PANCHAYAT RAJ JAMUA BLOCK- ARARIA, DISTRICT-ARARIA. with CWJC No.9230 of 2010 1. NUJHAT ARA W/O MD.SARWAR ALAM R/O VILL.- LAHTORA, P.S.& DISTT.- ARARIA 2. NIKAHAT ARA W/O MD.ASFAQUE ALAM R/O VILL.- LAHTORA, P.S.& DISTT.- ARARIA Versus 1. THE STATE OF BIHAR 2. THE SECRETARY, DEPARTMENT OF SOCIAL WELFARE, GOVT. OF BIHAR 3. THE DIRECTOR, INTERGATED CHILD DEVELOPMENT SCHEME UNDER DEPARTMENT OF SOCIAL WELFARE, GOVT. OF BIHAR, PATNA 4. THE DISTRICT MAGISTRATE, ARARIA 5. THE DISTRICT WELFARE OFFICER, ARARIA 6. THE CHILD DEVELOPMENT PROJECT OFFICER, RANIGANJ BLOCK, RANIGANJ, DISTT.- ARARIA 7. THE BLOCK DEVELOPMENT OFFICER, ARARIA 8. THE MUKHIA null GRAM PANCHAYAT RAJ CHATAR, P.S.- ARARIA, DISTT.- ARARIA ----------- P.K. ( Navin Sinha, J.) 02. 16.09.2010 Learned counsel for the petitioners prays for leave to purse remedies before the Commissioner of the Division. Learned counsel for the State submits that perhaps, Second Appeal before the Commissioner may not lie. It is not for the Court to pre-empt the petitioners from pursuing the remedies which they desire to. The rest is for the Commissioner to decide. The application is disposed with the aforesaid observations.

Hirawati Devi vs The State Of Bihar &Amp; Ors on 16 September, 2010

Patna High Court - Orders

Gujarat High Court Case Information System Print FA/1857/1992 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 1857 of 1992 ========================================================= GSRTC - Appellant(s) Versus KALPANABEN WD/O DR.DINESHCHANDRA DOSHI & 4 - Defendant(s) ========================================================= Appearance : MR MD PANDYA for Appellant(s) : 1, NOTICE UNSERVED for Defendant(s) : 1 - 2. NOTICE NOT RECD BACK for Defendant(s) : 3, None for Defendant(s) : 4, UNSERVED-EXPIRED (N) for Defendant(s) : 5, ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 04/05/2011 ORAL ORDER This First Appeal is of the year 1992 and despite the same, the respondents are still unserved. The respondent No.5 is reported to have expired. However, no steps are taken by the appellant to serve the unserved respondents and/or to bring the heirs and legal representatives of the respondent No.5 on record. However, in the interest of justice, S.O. to 12/5/2011, so as to enable the appellant to take steps to serve the unserved respondents as well as to bring the heirs of the respondent No.5 on record, failing which appropriate order shall be passed to dismiss the present appeal for non-prosecution. To be placed in the First Board. [M.R. SHAH, J.] rafik     Top

Author: M.R. Shah,&Nbsp;

Gsrtc vs Kalpanaben on 4 May, 2011

Gujarat High Court

CONSTITUENT ASSEMBLY OF INDIA - VOLUME XII Tuesday, the 24th January 1950 The Constituent Assembly met in the Constitution Hall, New Delhi, at Eleven of the Clock, Mr. President (The Honourable Dr. Rajendra Prasad), in the Chair. TAKING THE PLEDGE AND SIGNING THE REGISTER The following Members took the Pledge and signed the Register :- Shri Ratnappa Bharmappa Kurnbhar (Bombay States). Dr. Y. S. Parmar (Himachal Pradesh). STATEMENT RE: NATIONAL ANTHEM Mr. President: There is one matter which has been pending for discussion, namely the question of the National Anthem. At one time it was thought that the matter might be brought up before the House and a decision taken by the House by way of a resolution. But it has been felt that, instead of taking a formal decision by means of a resolution, it is better if I make a statement with regard to the National Anthem. Accordingly I make this statement. The composition consisting of the words and music known as Jana Gana Mana is the National Anthem of India, subject to such alterations in the words as the Government may authorise as occasion arises; and the song Vande Mataram, which has played a historic part in the struggle for Indian freedom, shall be honoured equally with Jana Gana Mana and shall have equal status with it. (Applause). I hope this will satisfy the Members. ELECTION OF NEW MEMBERS Shri B. Das (Orissa : General) : Sir, before we dispersed on the last occasion, we gave full power to you, the Honourable President of the Constituent Assembly of India, to direct the provincial Governments and the Government of India about the way in which elections Will take place for the seats vacated by the displaced persons, who will not be Members of this place any more. Further, we read in the papers that the Honourable the Prime Minister made a statement that more women should be elected to the Parliament. We saw certain statement issued by Rashtrapati Dr. Pattabhi Sitaramayya in connection with election of more women Members. An Honourable Member: On a point of order, Sir. Shri B. Das : There is no occasion for any point of order now. The present position, I may say, is that the United Provinces has sent two lady Members in place of three now displaced. The Orissa province has not sent any lady Member. No other Province has made any extra effort to send in lady Members. Women are about 50 per cent of the population. I do not want that they should give battle at the time of the next elections on this ground. I do not want a pitched battle between Man and Woman Mr. President: I think if you only put a question I may answer it. Shri H. V. Kamkath (C. P. & Berar: General) : May I request you, Sir, to be so good as to tell the House whether any steps were taken to secure the representation of Hyderabad in this Assembly, and if so, at what stage, the matter stands today ? That is the only State that has not so far sent any Member to this Assembly Mr. President: I shall answer the questions one by one. So far as filling the vacancies which arose on account of the elimination of Members who were also members of the provincial legislatures is concerned, the rules were amended and elections have been held in accordance with those rules. According to the decision of the House and according to those rules there are no seats reserved for women. It was left to the electorate to elect women. Such persons as have been elected will come to this House and we could not compel any electorate to send in women only. As regards the other question, I am not in a position to say as to what steps have been or have not been taken. That is really a matter for the Government. Shri H. V. Kamath: May I know if any instructions were issued from your office ? Mr. President: We had asked all those who are entitled to send Members to this House to send their representatives. That has been done and nothing further ha's happened after that. Shri H. J. Khandekar (C. P. & Berar: General) : May I know whether any instructions were issued by you or by your office to fill the seats vacated by Scheduled Castes by Members from the aboriginal tribes ? Mr. President: I do not think there were any such instructions issued. Shri H. J. Khundekar: But there were some instructions issued to some Provinces that the Harijan seats should be filled by the aboriginal tribes. Mr. President : I do not know. Shri H. J. Khandekar Were such instructions issued in Orissa? Mr. President: I do not know. Prof. Shibban Lal Saksena (United Provinces: General) : May I know whether any Hindi translation of the Constitution has been prepared ? Mr. President: Yes, it is ready. Shri H. J. Khandekar: May I request you to enquire into the matter as regards Orissa where from a member of the aboriginal-tribe is elected to this House in place of a Harijan ? Mr. President : If I continue in this place I will enquire about it. ELECTION OF PRESIDENT OF INDIA Mr. President: The next item is the announcement of the result of the elections. I call upon Shri H. V. R. Iengar, the Returning Officer and the Secretary of the Constituent Assembly to make the announcement. Shri H.V. R. lengar (Returning Officer and Secretary, Constitutent Assembly) Mr. President, I have to inform honourable Members that only one nomination paper has been received for the office of the President of India. The name of that candidate is Dr. Rajendra Prasad. (Loud and prolonged cheers.) His nomination has been proposed by Pandit Jawaharlal Nehru (Kenewed Cheers) and seconded by Sardar Vallabhbhai Patel (Continued Cheers), Under subrule (1) of rule 8 of the Rules for the election of the President, I hereby declare Dr. Rajendra Prasad to be duly elected to the Office of President of India. (Prolonged Cheers). The Honourable Shri Jawaharlal Nehru (United Provinees. General) : Mr. President, may 1, Sir, on my own behalf and on behalf of every Member of this honourable House offer you respectful congratulations on this high honour that has been conferred upon you ? It is more than three years since we began the work of this Constituent Assembly under your leadership, and during these three years much has happened in this country which has changed the face of this country. We have aced turmoil and crisis repeatedly but we have gone on with the work of making a Constitution for the public of India, and now we have accomplished that task. That chapter is closed. Fresh labours await us and another chapter begins in a day or two. Not only have we had experience of your able leadership during these three years of great difficulty but many of us have known you for three and thirty years or so as a soldier of India, ever in the forefront of the battle for freedom. (Cheers). So, we welcome you Sir, as our leader, as the Head of the Republic of India, and as a comrade who has faced without flinching all the crisis and troubles that have confronted this country during the past generation. One task is accomplished today in this Assembly an this Assembly will cease to be, having done its work or rather it will suffer a sea change and emerge as the Parliament of the Republic of India. One task is accomplished that we, set for us long ago. Other tasks now confront us. One dream that we dreamt for years past has been realised, but we confront again other dreams and other tasks, perhaps more arduous than the one we have already accomplished. It is a comfort for us ail to know that in these future tasks and struggles, we shall have you as the Head of this Republic of India, and may 1, Sir, pledge my loyalty and fealty to this Republic of which you will be the honoured President. (Prolonged Cheers). The Honourabal Sardar Vallabhbhai J. patel (Bombay: General) : Mr. President and Friends, I crave, your permission, Sir, to join 'in the chorus of congratulations showered on you on this sacred occasion when you have been elected as the Head of the State by the unanimous will of the representatives of the nation. (cheers). I endorse every word that has fallen from the lips of the Honourable the Prime Minister and I beg to congratulate you on the great honour that has been conferred on you. For three years you have been working as the President of the Constituent Assembly and Members have watched the way in which the proceedings of the Assembly have been conducted by you. At one time we were anxious and nervous because of your failing health due to the strain put upon you, but Providence has been merciful enough to restore you to your normal health and enable all of us to have the good fortune of seeing you elected as the first President and the, Head of the State of the Republic of India. This is a red letter day in the history of India, and we have no manner of doubt that under your wise judgment, your unruffled and cool temperament and your method of dealing with men and things, the honour and prestige of the country will rise as days go by and under your distinguished leadership the country will attain the status which it deserves among the nations of the world. I pray God may give us all the good sense to give you unreserved loyalty and complete co-operation in the heavy task which God has put upon you. We all of us have to swan together in the stormy seas that we have to cross in the future. You have by your affectionate temperament and by your goodness of heart won the affection of every section of not only this House but every section of the people of the country at large. You richly deserve the honour that bar, been conferred upon you. (Cheers). Shri B. Das: Mr. President Mr. President: Before Mr. Das speaks, may I just remind Members that on an occasion like this it is embarrassing for me to be sitting here and to listening to speeches which will contain sentiments hardly deserved by me, and I would therefore request Members, if they insist upon speaking, to confine their remarks to just as few sentences as possible. Shri B. Das (Orissa: General) : Mr. President, Sir, my heart goes in thankfulness to God that you are the first President of the Republic of India. Two thousand five hundred years ago, your province gave birth to Gautam Buddha who carried the message of peace all over Asia. In our own century Mahatma Gandhi, the Father of the Nation, preached the gospel of universal peace through non-violence. You are a great disciple of his and I sincerely hope-I have known you for so many years-that you will carry that message and uphold the doctrines of Mahatma Gandhi not only in your rule over us in India but throughout the universe. People are everywhere suffering from the greed of men and India stands in no less need of upliftment. It is God's will that you should guide our destinies through non-violence to peace and to a higher and nobler status of humanity. I hope that under your leadership India will be able to bring about world peace and human happiness. Dr. H. C. Mookerjee (West Bengal: General) : Sir, even I belong to a particular political organization. the fact that you have been elected fill your very high position unanimously is the clearest possible proof that you are not the choice of a particular dominant political party, but the choice of the whole nation. This choice of the whole nation, you have won on account of your sterling-honesty, on account of your past record of unselfish service, and the country has given you the highest possible position it can give anybody. It is only in deference to your wishes that I shall not make any long speech. I have to say one thing and it is, I pray to God that as you do your duty, you may win the approval of your own conscience, you may win the approval of the nation which has elected you and that you will win the approval of. the Father of our Nation, who must be pleased when he sees what is happening, and finally, the approval of God. May God bless you in all that you do. Mr. Hussain Imam (Bihar: Muslim) : Mr. President, it is a day of happiness for all especially for us Biharis, as it is after centuries that a Bihari has been able to give its services to India in the manner and in the personality of your goodself. We, Sir, in this House, have known your goodnessand known all your qualities of head and heart, and we could not but be happy at the choice which has been made. We all of us without any distinction of caste, creed or community congratulate you from the bottom of our heart and hope that you will fulfil this place with honour, dignity and benefit to the people of India. Mr. President: For once after three years, I hope the House will permit me to stop further discussion. Shri V.I. Muniswamy Pillay (Madras: General) : Sir, coming as I do from the southern-most Province of India, the Tamil Nad, I take this opportunity, Sir, of extending our whole- hearted congratulation to you, Sir, for being unanimously elected to the greatest office of India, under whose destiny is going to be the future of India. Sir, Mahatma Gandhi in whose footsteps you have been following and observing his noble example of extending your whole-hearted support to the down-trodden masses of India, I pray, Sir, that the Almighty may give you long life, so that you may continue that noble work and elevate the down-trodden, the oppressed, the untouchable and all those people who have. been removed away from the statute as no longer untouchables. Mr. President: I have had co-operation from the Members all these years. I hope it will not be denied to me today, i.e., on the last day. So I would beg honourable Members now to stop further discussion and not embarrass me more. (Seth Govind Das cam to the mike, to speak). (interruption.) Mr. President: I am sure I have the House with me on this occasion as on all occasions, and so, I would request Members who are anxious to speak to desist from doing so. I recognize the solemnity of this occasion. We, have after a long struggle reached one stage, and now another stage begins. It has been your kindness to place on me a very heavy responsibility. I have always held that the time, for congratulation is not when a man is appointed to an office, but when he retires, and I would like, to wait until the moment comes when I have to lay down the office which you have conferred on me to see whether I have deserved the confidence and the goodwill which have been showered on me from all sides and by all friends alike. When I sit listening to laudatory speeches--and although I have, tried to cut that down to some extent, here also I have had to submit to it to a certain extent,-I am reminded of a story in the Maha Bharat, which is so full of piquant situations, and the solution that was found by Shree Krishna, who solved all those difficult and apparently insoluble problems which arose was this. One of those days, Arjun took a vow that he would perform a certain thing before the sun set on that day and that if he did not succeed, he would bum himself on a pyre. He unfortunately, did not succeed. And then the problem arose as to what was to be done. In fulfilment of that vow, he. would have to bum himself. This, of course, was unthinkable so far as the Pandavas were concerned. But Arjuna, was adament in his resolve. Shri Krishna solved this problem by saying, "if you sit and praise yourself or listen to praise by others, that would be equivalent to committing suicide and burning yourself; So you had better submit to that and your vow will be fulfilled." Very often I have listened to such speeches in that spirit. Because, I have felt that there, are many things which I am not able to fulfil, which I am not able to accomplish, and the only way in which I can fulfil these things is to commit that kind of suicide. But, here, I am in a somewhat different situation. When our prime Minister and our Deputy Prime Minister speak with emotion about me, I cannot but reciprocate that kind of emotion. We have lived and worked together for mare than quarter of a century and in the closest association we have fought. We have never faltered; we have jointly succeeded also. And now that I am placed in one chair and they are occupying other chairs side by side, and there are other friends whose association I value equally well who will be sitting by their side to help and assist me and when I know that I have the good will of all the members of this House and of a very large circle of friends outside this House. I feel confident that the duties which have been imposed upon me will be discharged to their satisfaction: not because I can do that, but because the joint efforts of all will enable the duties to be so performed. The country today is facing very many problems and my feeling is that the kind of work which we have now to do is different from that which we used to do two years ago. It requires greater devotion, greater care, greater application and greater sacrifice. I can only hope that the country will throw up men and ,women who will be able to take up the burden and fulfil the highest aspirations of our people. May God give us strength to do that. SIGNING OF THE HINDI TRANSLATION OF THE CONSTITUTION Mr. President: Now there are two things more which remain to be done. One is the authentication or rather the certification of the Hindi Translation of the Constitution. Honourable Members will recollect that this House authorised me by a resolution to get the Hindi translation prepared, and printed and published before the 26th of January. That has been done. The House also authorised me to get translations in other languages prepared, printed and pub lished. That work has not yet been completed; it has been taken up. I win ask Shri Ghanshyam Singh Gupta to let me have the Hindi Translation so that I may formally place it before, the House and certify it. (The Honourable Shri Ghanshyam Singh Gupta handed over to Mr. President copies of the Hindi Translation of the Constitution. Mr. President then signed them.) SIGNING OF THE CONSTITUTION Mr. President: The only thing that now remains is the signing of the copy of the Constitution by the Members. There are three copies ready. One is in English completely hand-written and illuminated by artists. The second copy is in print in English. The third copy is also hand-written in Hindi. All the three copies are laid on the table and Members will be requested one by one to come and sign the copies. The idea is to call them in the order in which they are sitting in the House now. But, as the Honourable the Prime Minister has to go on public duty, I will request him first to sign them. (The Honourable Shri Jawaharlal Nehru then signed the copies of the Constitution.) Shri Algu Rai Shastri (U.P. : General) : *[Mr. President, I want to submit that since the Constituent Assembly has accomplished its task, its office will now be closed. I wish that the services of the staff working in this office should continue in some form or other. It should not be that on the 26th of January, when the whole country will be engaged in festivities, these officials may not feel like participating in them, although they deserve their share. This is all that I want to submit.) Mr. President: *[I would like to say in this connection that I have paid attention to this question and have corresponded with the Legislative Department and other departments of the Government for accommodating so far as possible, the persons working in our office. Efforts are being made for it. I hope that most of the people, if not all, will find employment. Efforts will be made to find employment for those also who are left out.] The Members will now come from the right side, from Madras side, as they are, and sign one by one. (The Members then signed the copies of the Constitution.) Mr. President: I would suggest to honourable Members just to take their places, and sign as the names are called. That would, I think, be better; it will certainly look nicer. Mr. Khanna will call out the names of the Members, one after another. (The remaining Members present then signed the copies of the Constitution after which Mr. President signed the copies.) ----------------------------------------------------------------------------------------------- *Translation of Hindustani Speech. Mr. President : Is there any Member who has not yet signed? If any, he may sign later on in the office. Honourable Members: Bande Mataram. Sri M. Ananthasaynam Ayyangar (Madras: General): All of us will sing, with Your permission, Sir, "Jana Gana Mana". Mr. President: Yes. (Shrimati Purnima Banerji with other Members sang "Jana Gana Mana" all standing.) Mr. President: "Bande Mataram". (Pandit Lakshmi Kanta Maitra, with other Members then sang "Bande Mataram", all standing.) Mr. President: The House will. stand adjourned now, sine die. The Constituent Assembly then adjourned, sine die.

Constituent Assembly Debates On 24 January, 1950

Constituent Assembly Debates

15.03 hrs. STATEMENT BY THE MINISTER BANKING REGULATION (AMENDMENT) AND MISCELLANEOUS PROVISIONS ORDINANCE Title: Statement regarding Banking Regulation (Amendment) and Miscellaneous Provisions Ordinance, 2004 (No.3 of 2004)- Laid. THE MINISTER OF FINANCE (SHRI P. CHIDAMBARAM): I beg to lay on the table an explanatory statement (Hindi and English versions) showing reasons for immediate legislation by the Banking Regulation (Amendment) and Miscellaneous Provisions Ordinance, 2004 (No.3 of 2004).     Placed in the Library. See No.LT. 737/04

Statement Regarding Banking Regulation (Amendment) And ... on 1 December, 2004

Lok Sabha Debates

[Section 15(c)] [Section 15] [Complete Act]

Central Government Act

Court No. - 9 Case :- WRIT - C No. - 38715 of 2010 Petitioner :- Matsya Jivi Sahkari Samiti Ltd. Respondent :- Mohammad Ali @ Nazim And Others Petitioner Counsel :- Tripathi B.G. Bhai Hon'ble Vijay Manohar Sahai,J. Hon'ble Mrs. Jayashree Tiwari,J. Heard learned counsel for the petitioner and learned Standing Counsel appearing for the respondents. This petition has been filed by the petitioner for getting the injunction application filed in Original Suit No. 291 of 2010. We do not find any reason to expedite the hearing of the case out of turn, however it is always open for the petitioner to file an appropriate application before the District Judge. Subject to the observations made above. The writ petition is devoid of any merits and is accordingly dismissed. Order Date :- 13.7.2010 Monika

Matsya Jivi Sahkari Samiti Ltd. vs Mohammad Ali @ Nazim And Others on 13 July, 2010

Allahabad High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5866 of 2006 RADHEY SHYAM PRASAD SAH . Versus THE BIHAR STATE ELECTRICITY BO . ----------- 2 28.02.2011 As prayed by Sri Vijay Kumar Verma, learned counsel appearing on behalf of respondent Bihar State Electricity Board, one week time is granted to file counter affidavit. Put up after one week. (Rakesh Kumar, J.) Praful/-

Radhey Shyam Prasad Sah vs The Bihar State Electricity Bo on 28 February, 2011

Patna High Court - Orders

ORDER G. Sankaran, Sr. Vice-president 1. The dispute in the present appeal is with respect to polypropylene yarn ("P.P. Yarn", for short), of the composition propylene : Viscose = 52 : 48, manufactured and cleared by M/s. Rajasthan Spinning & Weaving Mills Ltd., Bhilwara, the respondents before us. The issue is whether the said blended P.P. yarn was eligible for duty exemption in terms of Central Excise Notification No. 332/77, dated 1-12-1977. The Assistant Collector, while giving approval to classification lists No. 13/79 and 28/79, held that such blended yarn was not eligible for the benefit of the notification. The respondents paid duty at the higher rate under protest. In appeal, the respondents' claim was upheld and it is the Appellate Collector's order that is now the subject of challenge in the present appeal. 2. We have heard Smt. D. Saxena, Sr. D.R. for the appellant and Shri K.G. Sooji, Consultant for the respondents. 3. The appellant's contention, as set out in the grounds of appeal and elaborated by the Sr. D.R., is that the criterion of predominance of non-cellulosic fibre is relevant only for the purpose of classification of yarn under Item No. 18E of the First Schedule to the Central Excises and Salt Act, 1944 (GET, for short). Since Notification No. 332/77 grants exemption in terms to P.P. yarn, the predominance criterion is of no application in construing the notification as erroneously held by the Appellate Collector. The notification covers only 100% P.P. yarn. Further, it is contended that blended P.P. yarn is not known in the trade as P.P. yarn but as blended yarn. 4. The respondents' contention, on the other hand, is that the notification does not require the yarn to be comprised wholly of polypropylene. P.P. is the predominant fibre in the subject yarn. Hence it is P.P. yarn. It is known as P.P. yarn in the trade. 5. We have carefully considered the submissions of both sides. There is no dispute about the classification of the subject yarn. Admittedly, it falls under Item No. 18E, GET, "non-cellulosic spun yarn" which is defined as spun (discontinuous yarn) in which man-made fibres of non-cellulosic origin, other than acrylic fibre, predominate in weight. P.P. fibre is admittedly a non-cellulosic fibre. 6. Notification No. 332/77 exempts polypropylene yarn falling under Item No. 18E, CET from the whole of the Excise duty leviable thereon. 7. The question, therefore, is whether the expression "polypropylene spun yarn" in the notification will cover only 100% P.P. yarn or also blended yarn in which P.P. yarn predominates. 8. In this connection, it is to be noted that both sides have not adduced any evidence as to how the subject blended yarn is known in the trade, apart from .their bare assertions that it is known/not known as P.P. yarn in the trade. 9. Item No. 18E of wide amplitude and covers, as the Tariff Entry "non-cellulosic spun yarn" and its meaning given in the entry show, not only spun yarns which .comprise 100% non-cellulosic fibre, but also blended spun yarns in which non-cellulosic fibre predominates. In other words, a yarn containing 100% P.P. fibre and another yarn in which P.P. fibre predominates in weight, will both fall for classification under Item No. 18E. It is against this background that we have to consider whether the expression "polypropylene spun yarn" used in Notification No. 332/77, dated 1-12-1977 would take in only 100% P.P. yarn or blended yarn in which P.P. fibre predominates in weight as well. In this connection, it is useful to refer, by way of analogy, to Item No. ISA for "Cotton yarn, all sorts". The entry defines the expression as yarn in which cotton predominates in weight. In construing several notifications in relation to cotton yarn, therefore, one has to interpret the expression "cotton yarn" in the notifications in the light of the definition of the expression in the Tariff Entry. In other words, the expression will take in not only 100% cotton yarn, but also yarn in which cotton predominates in weight. Turning now to Item 18E with which we are concerned in the present case, the description is of a generic type, namely, 'non-cellulosic spun yarn'. It does not, for obvious reasons, spell out the several different non-cellulosic spun yarns that would fall under the said Item. That would be a cumbersome method. While in the case of cotton yarn (Item ISA), Item No. 18B (woollen and acrylic, spun yarn), Item 18C (silk yarn, all sorts), and Item No. 18D (jute yarn, all sorts), the descriptions are specific, it is not so in Item No. 18E for it would have been a virtually impossible task to set out specifically all the different types of non-cellulosic spun yarns. This difference in the terminology employed, should not, in our opinion, make any difference as to the interpretation of a specific non-cellulosic spun yarn falling under Item No. 18E, whether it is comprised wholly of a particular non-ceilulosic fibre or that non-cellulosic fibre predominates in weight in that yarn. In this view of the matter, the expression "polypropylene spun yarn" would take in not only yarn comprised wholly of P.P. fibre, but also yarn in which P.P. fibre predominates in weight. Viewed from this angle, the impugned order is correct in extending the benefit of Notification No. 332/77, dated 1-12-1977 to the subject spun yarn in which P.P. fibre dominates in weight (52%). 10. In the result, the impugned order is upheld and this appeal is dismissed. V.T. Raghavachari 11. I have read with care the order prepared by the Sr. Vice-President, Shri G. Sankaran but 1 regret I am unable to persuade myself into agreeing with him as to the disposal of the appeal. 12. Item No. 18E, GET covers "non-cellulosic spun yarn". The coverage would include not merely spun yarns of 100% non-cellulosic fibre but also blended spun yarns in which non-cellulosic fibre predominates. The Notification No. 332/77-C.E., dated 1-12-1977 was in relation to 'poly-propylene spun yarn', this would normally mean yarn spun out of 100% polypropylene fibres. There is no reason why this normal meaning must be given up and the explanation in the Tariff Entry should be taken into consideration or construing the words in the notification to enable an interpretation that the notification covers not merely 100% polypropylene spun yarn but also blended yarn in which polypropylene predominated. The reference to the several other items like ISA, 18B, 18C and 18D is not, in my opinion, of any assistance since these entries related to specific types of yarn such as cotton yarn, woollen yarn, silk yarn, jute yarn, etc. and the notifications under the said items related to such yarns. We cannot read the words 'polypropylene spun yarn' occurring in the notification to include blended yarn in which polypropylene fibres predominated, in the absence of any proof that in commercial parlance such blended yarn was known as polypropylene yarn merely on the basis of predominance. As pointed out for the Appellant Collector, it is significant that subsequently in 1980 two separate notifications were issued (147/80 and 149/80), one in respect of polypropylene yarn and the other in respect of blended yarn. 13. I am, therefore, of the view that the Appellate Collector's order was incorrect when it held that the benefit of notification was available to blended yarn. In my opinion, the appeal is to be allowed and the order of the Appellate Collector set aside, restoring the order of the Assistant Collector. 14. In view of the difference of opinion between the two Members constituting the Bench, as to the applicability of Notification No. 322/ 77-C.E., dated 1-12-1977, it has become necessary to place the papers before the President, in terms of the provisions of Section 129C(5) of the Customs Act, as made applicable to the proceedings under the Central Excises and Salt Act, the point of difference between the two Members being as below :- "whether the blended yarn in which polypropylene fibre predominates was or was not entitled to benefit under Central Excise Notification No. 322/77-C.E., dated 1-12-1977." S. Venkatesan, President The point of difference between the learned Senior Vice-President and the learned Judicial Member, who originally heard this case, is the following :- "Whether the blended yarn in which polypropylene fibre predominates was or was not entitled to benefit under Central Excise Notification No. 322/77-C.E., dated 1-12-1977." 2. The facts are quite simple. The goods in this case are polypropylene spun yarn, containing 52% propylene and 48% viscose. Admittedly it falls within Item 18E, relating to "non-cellulosic spun yarn" of which the description runs as follows :- "Spun (discontinuous) yarn, in which man-made fibres of non-cellulosic origin, other than acrylic fibre, predominate in weight...". The respondents are claiming the benefit of the exemption under Notification No. 322/77-C.E., dated 1-12-1977. This notification exempts "polypropylene spun yarn falling under Item 18E". 3. The question for decision is whether the criterion of predominance in weight contained in Item 18E can be considered as applicable to Notification No. 322/77. 4. Appearing for the appellant Collector, Smt. Dolly Saxena submitted that the words "polypropylene spun yarn" in the notification would apply only to yarn containing 100% of propylene. She referred to para 3 of the order of the Collector (Appeals). The Collector had held that since the language of Item 18E allowed inclusion of purely non-cellulosic, as well as blended forms of spun yarn, the notification was to be read keeping this very criterion in mind. The Collector had further observed that as the blended forms had not been specifically excluded from the purview of the notification they could not be denied the benefit of the notification. 5. Smt. Saxena submitted that the Collector (Appeals) was wrong in his interpretation. The wording of the notification was very specific. In the absence of any explanation or definition, one should go by the plain meaning of the words used. In support of this she cited the judgment of the Hon'ble Supreme Court in the case of Hemraj Gordhandas v. H.H. Dave [1978 (2) ELT (3. 350)]. 6. Smt. Saxena added that reliance might perhaps be placed on the judgment of the Hon'ble Supreme Court in the case of Khandelwal Metal & Engineering Works & Another Etc. v. Union of India & Others [1985 (20) ELT 222 (S.C.)]. That case referred to the question of brass scrap. According to her the Supreme Court's judgment in that case was not relevant to the present case. This was because as between brass and copper, one is part of the other, since brass contains copper. In the present case the heading had a broad span and was not specific, whereas the notification referred to a particular material. Smt. Saxena accordingly submitted that the appeal should be allowed. 7. For the respondents, their learned Consultant, Shri K.G. Sooji, laid stress on the wording of the Tariff Item. The wording made it clear that for classification under that item the determining factor was predominance in weight. In fact, the blended yarn in question had been classified by the respondents under Item 18E, and this classification had been approved by the Department. 8. The same principle should apply to the notification. Although it referred to "polypropylene spun yarn", the notification did not say that blended yarn was excluded. Therefore the same criterion of predominance in weight as in the tariff heading should be applied. Shri Sooji added that the benefit of the exemption had been granted in respect of such yarn in the Chandigarh and Baroda Collectorates. A different view should not be taken with reference to a factory in the Jaipur Collectorate. 9. Shri Sooji cited the decision of the Hon'ble Allahabad High Court in the case of Geep Flashlight Industries Ltd. [1979 (4) ELT (3. 391)]. In that case the Hon'ble High Court had observed that in a taxing statute if two interpretations of its charging provision are reasonably possible, it is well settled that the construction favourable to the subjects should be preferred. In the present case two interpretations were obviously possible, since there was a difference of opinion even as between the Members, of the original Bench. Accordingly, the interpretation which was in favour of the assessee, namely the respondents, should be preferred. 10. Shri Sooji also faintly argued that the polypropylene blended spun yarn in question was known in the trade as polypropylene spun yarn. His attention was drawn to para 8 of the order of the learned Senior Vice-President. It has been recorded therein that both sides have not adduced any evidence as to how the subject blended yarn is known in the trade, apart from their bare assertions that it was or was not known as polypropylene yarn. Shri Sooji had no further submission to make on this aspect. 11. In the end Shri Sooji submitted that the view taken by the learned Senior Vice-President should be endorsed and the appeal rejected. 12. I have carefully considered the orders recorded by the two learned Members of the original Bench, as well as the arguments advanced at the hearing before me. 13. I shall first deal with the observations of the learned Appellate Collector. He has observed that "a notification issued under a Tariff Item has to be read with reference to the Tariff Item concerned and only that interpretation can be placed on the notification legitimately which keeps it within the ambit of the Tariff Item, otherwise the notification would become ultra vires". This observation is unexceptionable. A notification which refers to goods falling under a particular Tariff item cannot be interpreted so as to make it applicable to goods not falling within that tariff item. But no such question arises in the present case. Both yarn containing 100% polypropylene, and yarn containing 52% pro-pylene and 4X% viscose, would fall within the scope of the tariff item. The question is whether the latter variety would fall within the scope of the exemption notification. Whichever way the notification is interpreted, no question would arise of going outside the ambit of the tariff item. Therefore these observations of the learned Appellate Collector really had no application to the present case. 14. The question only is whether in construing the exemption notification, the expression "polypropylene spun yarn" has to be interpreted in the light of the definition contained in the tariff entry. It may be noted straight away that there would be nothing wrong or anomalous or even unusual in an exemption notification issued under a particular tariff item having a scope which is more narrow than of the tariff item. In fact in the majority of exemption notifications this is what happens. A particular area out of that covered by the tariff item is carved out or demarcated, and a lower rate of duty made applicable to it, on socio-economic or other policy considerations. It was entirely permissible for Government to notify only yarn containing 100 % polypropylene as eligible for duty exemption. Equally, it was entirely permissible for Government to extend the notification to yarn in which polypropylene fibre predominated in weight. In order to decide what was the intention of Government, one has to go by the accepted canons of interpretation. 15. The basic question is whether the criterion incorporated in the tariff item should be deemed to be applicable to the notification. It appears to me that there is force in the submission of Smt. Saxena that the notification should be construed according to its plain meaning. As was pointed out to Shri Sooji, it is well established that, whereas the burden is on the revenue authorities to bring the article to be taxed within the scope of the tariff item, the burden is on the person claiming exemption to show that it is entitled to the exemption. It has also been held that exemption notification should be strictly construed. In the light of these principles it is difficult to avoid the conclusion that the expression "polypropylene spun yarn", without any qualification, appearing in the notification should be deemed to cover only yarn containing 100 % polypropylene. 16. The case might be different if the words used in the notification were the same as the words used in the tariff item. Thus, when dealing with Item 18A relating to "cotton yarn all sorts", if the same expression "cotton yarn" occurs in a notification, it could be argued with some force that it should be given the same meaning as in the tariff entry. In the present case however it is not a question of giving the same interpretation to the same expression occurring in the tariff entry and in a notification relating to that tariff entry. It is a question of applying the analogy of the tariff entry to a different expression used in the notification, even to the extent of going beyond the plain meaning of that expression. In my opinion, according to the various principles described above, this is not permissible, [incidentally, the present case is distinguishable from the judgment of the Hon'ble Supreme Court in the case of Khandelwal Metal & Engineering Works. In that judgment it was held (para 33) that the interpretation given to the expression "copper waste and scrap" in the tariff item would also be applicable to the same expression appearing in a notification under that item. Here we are concerned with interpreting a different expression whose meaning by itself is quite plain]. 17. Shri Sooji's last argument was that the decision should be in favour of the respondents on the basis that where two interpretations are reasonably possible, the construction favourable to the subject should be preferred. Certainly that principle has its application in a proper case, where the arguments for both interpretations are found to be evenly balanced. It cannot however be resorted to in every case where some doubt is raised. Even the very provision under which the matter has come before the present Bench, namely Section 129C(5), Customs Act, makes this clear. If every case of difference of opinion could be decided by adopting the interpretation more favourable to the assessee, it was not necessary for Parliament to make a provision for reference of points of difference to a third Member or Members, and for a final decision on the basis of the majority opinion (or a decision by the President in certain cases). In the case of 3.K. Steel Ltd. v. Union of India & Others (A.I.R. 1970 S.C. 1173) the Supreme Court had observed as follows :- "It is true that a taxing statute should be strictly construed, but no rule or principle of interpretation requires that close reasoning should not be employed to arrive at the true meaning of a badly drafted entry in an Excise Act". It is therefore necessary in the first instance to employ close reasoning to arrive at the intention of the Legislature. When that is done in the present case, the conclusion would be that the notification would not cover the goods under consideration. 18. Accordingly, my answer to the question posed by the learned Members of the original Bench is that the blended yarn in question was not entitled to the benefit of the notification. 19. The case should now go back to the original Bench for passing final orders in accordance with the above decision. ORDER In view of the President's decision on the point referred to him, we hold that the subject blended yarn in which polypropylene fibre predominated was not entitled to the benefit of Central Excise Notification No. 322/77 dated 1-12-1977. Accordingly, we allow the appeal, set aside the order of the Appellate Collector and restore the order of the Assistant Collector.

Collector Of Central Excise vs Rajasthan Spinning And Weaving ... on 1 September, 1987

Customs, Excise and Gold Tribunal - Delhi

JUDGMENT Mullick, J. 1. The point for decision is whether a Magistrate, acting under Section ]45, Criminal Procedure Code, is authorized to refer a dispute to arbitration and to make an order in regard to . the possession of parties upon the award of the arbitrators. The jurisdiction of the High Court to interfere in orders under Section 145 Criminal Procedure Code, has been discussed by a Full Bench of this Court in Parmessar Singh v. Kailaspati 35 Ind. Cas. 801 : 1 P.L.J. 336 : 17 Cr.L.J. 369 : 1 P.L.W. 95 : (1917) Pat. 1 and it has been decided that where there has been a refusal to exercise jurisdiction or an absence of jurisdiction or an excess of jurisdiction has been exercised with material irregularity, the High Court can interfere. 3. Here the question is whether reference of a case to arbitrators, even though made with the consent of parties, and a decision of the case based upon the award of the arbitrators is not an illegal exercise of jursidiction or refusal to exercise jurisdiction. It has been held in Hamidul Haq v. Atact Hossain 37 Ind. Cas. 513 : 2 P.L.J. 86 : 1 P.L.W. 81 : 18 Cr.L.J.145 that a Court has no jurisdiction to delegate its functions and to refer the dispute to arbitration without trying the case under Section 145, Criminal Procedure Code, and that the decision of a case on the award of the arbitrators is not a legal exercise of jurisdiction. 4. It is contended on behalf of the second party that there is nothing in the Criminal Procedure Code which prohibits a Magistrate to make a reference to arbitration if the parties consent to do so and that even if it is contrary to the provisions of the Code to make such a reference, the error is at most an irregularity and in no case can amount to an illegal exercise of jurisdiction. 5. There is, however, no authority cited in support of this argument. The learned Vakil relies, firstly, upon Janki Miser v. Kliha Miser 6 C.W.N. cix (109). In that case a Division Bench of the Calcutta High Court did not give any reasons for its order, but merely remarked that upon the merits of the case they declined to interfere, Stevens, J., one of the Judges, does appear to have said: "As the parties themselves had consented to an arbitration they had no right to complain in revision," but no reasons were assigned for the dictum and it must be treated as merely obiter. The other learned Judge, who was a member of the Bench, passed his order only upon the merits and he appears to have thought that substantial justice had been done. 6. The next case on which the learned Vakil relief is Taramoni Chaudhurani y. Gyanendra Mohan Chaudhurani 7 C.W.N. 461. In that case Brett and Harington, JJ., of the Calcutta High Court directed that the Magistrate should take into consideration the award of the arbitrators. The learned Judges, however, refrained from saying whether the award would be legal evidence and whether the Court was bound to abide by it. On the other hand in Banwari Lal Mukerjee v. Hriday Chakravarti 32 C. 552 : 1 C.L.J. 432 : 2 Cr.L.J. 347 the learned Judges of a Division Bench of the Calcutta High Court ruled that the Code does not contemplate reference to arbitration under Section 145, Criminal Procedure Code, but they went on to express the opinion that the error in this respect did not perhaps amount to an illegal exercise of jurisdiction. They did not, however, pronounce any definite opinion upon the point. 7. To my mind the matter is perfectly clear. Under Section 145, Criminal Procedure Code, the Magistrate has to make an inquiry himself and to pass the order after applying his judicial mind to the facts of the case, and to the evidence adduced by the parties. He cannot divest himself of the case by delegating the decision to arbitrators even though appointed by consent of parties. To accept the award of the arbitrators as the sole basis of the decision is to substitute the mind of the arbitrators for the mind of the Court; and that is where the refusal to exercise jurisdiction arises. A Court may always direct inquiries and call for reports and may, where such reports are evidence take them into consideration, but an arbitration is a different matter altogether, for there the Court accepts the award of the arbitrators as the final pronouncement upon the facts. Looked at in this light, the arbitrators' award in this case was entirely without jurisdiction and its acceptance by the learned Magistrate as the only basis for his decision constitutes a refusal to exercise jurisdiction. 8. There are two further defects in the Magistrate's proceedings. 9. The so-called award had been returned by only two of the arbitrators and, therefore, it was not a complete award on which the Court should have acted. 10. The other point is that one member of the first party objected to the award, laying that his guardian had no right to consent to the reference. This point was not decided by the learned Magistrate. 11. So, even if there was jurisdiction to act on the award, there has been material irregularity in the exercise of that jurisdiction. 12. The question is not one of simple irregularity; in my opinion, there was a total absence of jurisdiction. 13. But even if the learned Magistrate's acts in making the reference at all and in accepting a defective award amount only to irregularities, then the irregularities were serious and material irregularity and entitled the first party to invoke the aid of this Court. 14. The order of the Magistrate will, therefore, be set aside and the proceedings quashed. If there is still a fear of a breach of the peace the Magistrate will be at liberty to take fresh proceedings.

Author: Mullick

Hari Prasad Tewari And Ors. vs Sewak Das on 24 April, 1917

Patna High Court

F.A.O.No. 3716 of 2001 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. F.A.O.No. 3716 of 2001 Date of Decision :24.12.08 Gurdeep Singh Appellant. VERSUS Bhim Singh and others. Respondents. CORAM : HON'BLE MR. JUSTICE JORA SINGH. --- Present:- Mr.H.S.Sharma, Advocate, for the appellant. Mr. Gopal Mittal, Advocate assisted by Mr. B.K.Singal, Manager, and Mr. Baljit Singh, Deputy Manager, for United India Insurance Company Limited. --- 1.Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the digest? JORA SINGH,J. 24.12.2009 ( JORA SINGH) Anoop JUDGE Gurdeep Singh, preferred this appeal against the award/order dated 31.3.2001, whereby claim petition filed by him under Section 166 of the Motor Vehicle Act, 1988, was dismissed. The case of the appellant, in brief, is that on 28.9.1994, he was returning from Delhi in bus No. DL-1P- 1521. Bus was being driven rashly and negligently. Driver was requested to drive the bus with care and caution but continued to drive bus at a very high speed. When the bus F.A.O.No. 3716 of 2001 2 was at a distance of eight kilometer from Hansi, then in the meantime, Haryana Roadways Bus No. HR-38-1266 came from the side of Delhi which was being driven rashly and negligently by respondent No.1 then both the buses had struck against each other. Accident was due to the rash and negligent driving of both the vehicles. D.D.R.No. 9 dated 29.9.1994 was got recorded in Police Station Sadar, Hasni. In the accident, appellant received multiple grievous injuries and got admitted in Komet Hospital and Medical Research Centre, Pusa Road, New Delhi. Appellant was operated upon twice firstly on 29.9.1994 and then on 10.10.1994. Rs.1,50,000/- was spent on the treatment. Appellant was earning Rs.5500/- per month. Upon notice, respondent No.1 filed written statement by denying all the allegations of the claimant. In fact, on 28.9.1994 respondent No.1 was driving the bus of Haryana Roadways from Anupgarh to Delhi. When his bus reached near Garhi Minor i.e. about six kilometer away from Hansi, then truck No. HR-20A-6411 was seen in stationary condition. Suddenly, an animal came in front of the bus and to save that animal, bus was taken towards left side of the road and to avoid accident with the truck, bus was taken towards right side. In the meantime, bus Nos. DL-1P-1529 came from back side. Bus was being driven rashly and negligently by respondent No.6 and struck against the bus of respondent No.1. Accident was not due to rash and negligent driving of the bus by respondent No.1. In fact, the accident F.A.O.No. 3716 of 2001 3 was due to rash and negligent driving of bus No. DL-1P-1529. Respondents No. 2 and 3 filed separate written statement by denying all the allegations of the claimant. Respondent No.7 filed separate written statement and contested the claim petition by pleading that bus No. DL-1P- 1529 was not insured with the answering respondent. Then on, claim petition was got amended by changing the bus No. DL-1P-1529 to DL-1P-1521. From the pleadings of the parties, following issues were framed:- After hearing learned counsel for the parties and evidence on the file, claim petition was dismissed vide order dated 31.3.2001. Feeling aggrieved against the Award dated 31..3.2001, appeal was preferred by Gurdeep Singh. F.A.O.No. 3716 of 2001 4 Notice was issued to the respondents. I have heard learned counsel for the parties and have gone through the evidence on the file very carefully and thoroughly. Learned counsel for the appellant argued that appellant was traveling in bus No. DL-1P-1521. Bus was being driven rashly and negligently by respondent No.1. At the time of accident, bus was at a distance of 7/8 kilometer from Hansi. Driver was requested to drive the bus at slow speed but he did not agree. In the meantime, bus No. HR- 38/1266 came from the side of Delhi and the bus was being driven rashly and negligently. Both the buses had struck against with each other. In the accident, appellant received injuries. Evidence on the file was not properly appreciated, qua accident. D.D.R.No. 9 dated 29.9.1994 was got registered. On account of injuries, appellant remained admitted in the hospital and was operated upon twice. Requested to accept the appeal. Learned counsel for the Insurance Company argued that respondent No.1 while driving Haryana Roadway bus No. HR-38/1266 and the bus was at a distance of six kilometer from Hansi towards Delhi then truck No. HR-20A- 6411 was seen in stationary condition then suddenly, an animal came in front of the bus and to save that animal, bus was brought on the left side, then to avoid accident with the truck, he took the bus to right side. In the meantime, bus No. DL-1P-1529 came from back side. Bus was being driven F.A.O.No. 3716 of 2001 5 rashly and negligently by respondent No.6 and the bus was struck against the bus driven by respondent No.1 from back side. In the accident, appellant did not receive injury. Petition was rightly dismissed. As per evidence on the file, appellant was travelling in the bus No.DL-1P-1529 and the bus was of a private company. Bus No. HR-20A-6411 was being driven by respondent No.1. As per written statement of respondent No. 1, but question is whether there was an accident as pleaded by the appellant or the accident was as per pleadings of the respondents. Gurdeep Singh appellant on oath stated that in a private bus of Kataria Tours and Travels bearing No. 1521 he was travelling from Shri Ganganagar to Delhi. Bus was being driven by Amar Singh. When the bus had reached at some distance ahead of Hansi, at about 2.30 A.M. on 29.9.1994, then a bus of Haryana Roadways was seen going ahead of the Bus No. DL-1P-1521. Bus No. DL-1P-1521 was being driven rashly and negligently. Driver of Haryana Roadways Bus had applied brakes suddenly. Private bus of Kataria Tours and Travels No. DL-1P-1521 had struck against the Haryana Roadways bus from behind and in the accident, he had suffered multiple grievous injuries. But story put forward by the appellant is contrary to the evidence. According to the appellant, bus No. DL-1P-1521 was of Kataria Tours and Travels and there was an accident of this bus with Haryana Roadways Bus No.HR-38/1266. Case of respondent Nos. 1 to 3 was that accident was of Haryana F.A.O.No. 3716 of 2001 6 Roadways bus with a private bus. D.D.R.No. 9 dated 29.9.1994 was recorded in Police Station Sadar,Hansi, but report was not summoned by the appellant. By summoning Rapat No. 9 of 29.9.1994, appellant was required to establish that he was travelling in bus No. 1521 and the accident of that bus was with the bus of Haryana Roadways. Best evidence was available with the appellant but the same was not brought on the file for the best reasons known to the appellant. As per claim petition appellant was travelling in bus No. DL-1P-1521 and there was an accident of this bus with the bus of Haryana Roadways, but while appearing in Court appellant stated that Haryana Roadways bus was ahead of the bus in which he was traveling. Driver of Haryana Roadways had applied brake and then the bus in which he was travelling had struck against the Haryana Roadways bus from back side. As per claim petition, accident was at about 5/5.30 A.M. on 28.9.1994 but appellant on oath stated that accident at about 2.30 A.M. on 29.9.1994. Initially, claim petition was filed with the allegation that accident was with bus No. DL-1P-1529, but later on, by way of amendment, number of the bus was got amended from DL-1P-1529 to DL-1P-1521, Bhim Singh Driver and Suresh Kumar Conductor of the bus of Haryana Roadways appeared in Court and categorically stated on oath that accident was with a private bus that struck, against the bus of Haryana Roadways No.DL-1P-1529. As per respondents number of the private bus was DL-1P-1529 that means the F.A.O.No. 3716 of 2001 7 appellant failed to prove as to whether the accident was of bus No. DL-1P-1521 of Kataria Tours and Travels with the bus of Haryana Roadways. Whereas evidence on the file shows that the accident was between the Haryana Roadways bus and Private bus No. DL-1P-1529, whereas the case of the appellant is that he was travelling in bus No. DL-1P-1521. To support the version of the appellant, there is no cogent and convincing evidence on the file either in the shape of documentary or oral evidence. If we presume that there was an accident, then the question is whether the appellant had received injuries in the accident . Number of passengers were in both the buses, but no one came forward to support the version of the appellant. No documentary proof i.e.M.L.R., medical bills etc on the file that the appellant had received injuries in the accident and remained admitted in any hospital. Evidence on the file was rightly appreciated by the Tribunal. No other submission was put forward. In view of all discussed above, there is no infirmity and illegality in the impugned award of the Tribunal and the same is upheld. Appeal without merit is dismissed.

Gurdeep Singh vs Bhim Singh And Others on 24 December, 2008

Punjab-Haryana High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.35024 of 2009 Paro Devi Versus State of Bihar & Anr ----------- 2. 03.11.2011 No one appears on behalf of the petitioner. Put up this case after two weeks. V.K. Pandey ( Amaresh Kumar Lal, J.)

Paro Devi vs State Of Bihar & Anr on 3 November, 2011

Patna High Court - Orders

No. F. 4. (11) Agri-4/Coop/83 Jaipur, dt. 21.2.91 ORDER In exercise of the powers conferred on the State Government by Section 139 of the Rajasthan Cooperative Societies Act, 1965, the State Government hereby orders that the provision of Sub-section (4) of Section 34 of the aforesaid Act regarding disqualification of membership of Committee due to default shall apply with following modification: (1) The default within the meaning of Sub-section (4) of Section 34 shall be construed as default only to the society to which election is sought and to no other society. By order sd/ (M.L. MEHTA) Secretary to Government (Cooperative) jktLFkkku ljdkj d`f"k ¼xzqi &4½ lgdkfjrk foHkkx dzekad Ik- 4¼11½ &4@lg@83 t;iqj fnukad 21-12-91 vkns'k JUDGMENT A.K. Mathur, J. 1. Since all these writ petitions involve common questions of law and facts, therefore, these are disposed of by this common order. 2. For the convenient disposal of all these writ petitions, the fact given in the case of Uda Ram v. The State of Rajasthan and Ors. D.B. Civil Writ Petition No. 6699 of 1991 are taken into consideration. 3. The petitioner by this writ petition has prayed that the order dated 26.12.1991 (Annex. 9) and the order dated 24.12.1991 (Annex. 10) may be quashed. It is also prayed that the orders of the State Government dated 21.22.1991 may be declared illegal and the same may be quashed. He sought direction that the respondents may be directed to complete the process of election which had begun by the issue of programme dated 9.12.1991 from that stage and on the basis of same electoral roll which was in existence at that time. 4. The petitioner is a "B" category member in the Deedwana Kriya Vikriya Sahakari Samiti Ltd., Deedwana (referred to hereinafter as "the Samiti"). The election of the Managing Committee of the samiti were held in the year 1987 and in the year 1990 the elected Board was dissolved and in its place Administrator was appointed, who is still continuing. Under the provisions of the Rajasthan Cooperative Societies Act, 1965(hereinafter referred to as "the Act of 1965) and the Rajasthan Cooperative Societies Rules, 1966 (referred to hereinafter as "the Rules of 1966"), the respondents are duty bound to hold the elections in the Cooperative Societies as soon as the term of the elected body comes to an end. It is submitted that when the Administrators were appointed, certain writ petitions were filed against such appointments of the Administrators challenging the validity of the provisions of the Act of 1965 and those writ petitions were allowed. Thereafter, the State Government took up these matters to the Supreme Court by way of Special Leave Petition, and the Hon'ble Supreme Court was pleased to stay the operation of the order of this Court. But at the same it was directed that the election process shall continue. Notwithstanding the direction of the Hon'ble Supreme Court, the State Government stayed the election of the Cooperative Societies time and again. The election of the Managing Committee of the Samiti was scheduled to take place in the month of July, 1991, but the same was stayed by the respondents. Thereafter, the election process again started by the order dated 4.11.1991 issued by the Assistant Registrar, Cooperative Societies, Nagaur vide Annex. 1. This was modified by the order dated 7.11.1991. The Election Officer issued an order dated 11.11.1991 declaring the programme of election. Copy of that programme has been placed on the record as Annex. 3. Then, the elections were stayed by the Registrar, Cooperative Societies vide order dated 15.11.1991, copy thereof has been placed on the record as Annex. 4. In compliance of the order of the Registrar, Cooperative Societies, the Assistant Registrar issued an order dated 16.11.1991, which has been placed on the record as Annex. 5 On 4.12.1991 another order was issued by the Assistant Registrar declaring fresh programme of election, a copy thereof has been placed on the record as Annex. 6. The Election Officer issued an order dated 9.12.1991 declaring the programme of election, a copy thereof has been placed on the record as Annex. 7. The petitioner filled up his nomination form on 20.12.1991 and his nomination form was found to be in order in scrutiny, which was held on 21.22.1991. After expiry of the time of withdrawal the Election Officer issued a list of the candidates, who are to contest the election. Then again the petitioner came to know on 26.12.1991 that the Election Officer has stayed the election till further orders. A copy of this order has been placed on the record as Annex. 9. The aforesaid order was issued in compliance of the order of the Assistant Registrar dated 24.12.1991, a copy thereof has been placed on the record as Annex. 10. Meanwhile, two orders were issued by the State Government on 21.12.1991 in exercise of the powers conferred by Section 139 of the Act of 1965 read with Rule 110 of the Rules of 1966. By this order the provisions of Section 34 of the Act of 1965 were modified. A copy of the order has been placed on the record as Annex. 12. By another order the provisions of the bye-laws of the Society were amended providing reservation for Scheduled Castes and Scheduled Tribes candidates, a copy whereof has been placed on the record as Annex. 13. It is submitted that in some of the Cooperative Societies the elections were held without any reservation being made for the Scheduled Castes and Scheduled Tribes candidates. Likewise, it was pointed out that in the Mehta Krashak Kriya Vikriya Sahakari Samiti, the elections were held without complying with the orders passed by the State Government on 21.12.1991 (Annexs. 12 and 13). It was pointed out that in the Kota district also the elections were held on the basis of the nominations already received by providing additional opportunity to the members of the Scheduled Castes and Scheduled Tribes and defaulters of the other Societies to fill in the nomination papers. In this back ground, both the orders issued by the State Government on 21.12.1991 under Section 139 read with Rules 110 have been challenged by these writ petitions. It is contended that the elections should be held as per the election programme issued by the Election Officer and the Registrar had no jurisdiction to stay the elections. In. this connection, reliance has been placed on the decision of this Court delivered in the case of Chain Ram v. State of Rajasthan and Ors. 1988 (1) R.L.R. 343. 5. It is contended by the State Government that the State Government is competent to issue both the orders dated 21.12.1991 under Section 139 of the Act of 1965 as Section 139 confers a power on the State Government to exempt any society or class of societies from the provisions of this Act or may direct that provision shall apply to such society or class of societies with such modification as is specified in the order. Therefore, it is contended that both the orders have a legal sanction behind them and the elections have to be held according to the orders issued by the State Government and the Registrar, Cooperative Societies, has rightly stayed the elections because these orders were in contemplation. Since these orders have been issued by the State Government in the purported exercise of its legislative power, therefore, the elections will have to be held after complying with both the orders. 6. We have heard the learned Counsel for the parties and perused the record. 7. In order to decide the present controversy as to whether the State Government has a power to issue the orders dated 21.12.1991 or not, it would be necessary to first examine the powers conferred under the Act on the State Government under Section 139 read with Rule 110 of the Rules of 1966. 8. Section 139 of the Act of 1965 reads as under: 139. Power to exempt class of societies: The Government may, by general or special order, exempt any co-operative society or any class of societies from any of the provisions of this Act or may direct that such provisions shall apply to such society or class of societies with such modifications as may be specified in the order. 9. Rule 110 of the Rules of 1966 reads as under: 110. Power to exempt from rules: The Government may, by general or special order, exempt any society or any class of societies from any of the provisions of the rules or may direct that such provisions shall apply to such society or class of societies with such modifications and, on conditions as may be specified in the order. 10. A perusal of both these provisions makes it clear that the legislature has conferred a power on the State Government to exempt any cooperative society from the provisions of this Act or any class of societies from the provisions of this Act with such modification as may be specified in the order. The idea behind it is that if the Government feels that certain provisions of the Act will not be conducive to the development of a particular cooperative society as it may defeat the very purpose of the cooperative movement, in that case for the benefit of the cooperative society or societies the State Government can exempt any cooperative society or class of cooperative societies from certain provisions of the Act or it can modify certain provisions of the Act with such modification as it may deem fit. 11. Learned Counsel for the parties strenuously urged before us that these are enabling provisions and it should not be construed to mean that the State Government can frustrate the very purpose of the Act. This salutary provision is for the purpose of removing the difficulties in the cooperative movement. By this it should not be construed to mean that the Government can usrup the absolute power and frustrate the purpose of the Act. 12. It is true that the power conferred under Section 139 of the Act of 1965 cannot be construed to confer a blanket power on the State Government. If any order has been issued by the State Government in the purported exercise of this power and it smacks of malafide or it appears to be wholly arbitrary or it appears to frustrate the basic thrust of the Act then such order can be held to be bad. So far as the provisions of Section 139 of the Act of 1965 is concerned, the conferment of such power on the State Government has been held to be valid under the Madras Cooperative Societies Act by the Hon'ble Supreme Court in the case of The Registrar of Cooperative Societies and Anr. v. K. Kunjabmu and Ors. , wherein the validity of identical provision was challenged. It was observed that the guidelines are already provided in the Preamble of the Act and looking to the provisions of the Cooperative Societies Act the validity of Section 60 was upheld. Therefore, so far as the power conferred on the State Government under Section 139 is concerned that has been upheld. But the question is that of exercise of the power. In case the power has been exercised arbitrarily, mala fide or for extraneous considerations then such notification/order issued in the purported exercise of the power can be struck down. Therefore, we have to examine as to whether both the orders issued by the State Government dated 21.12.1991 are malefide, arbitrary or against the provisions of the Act or not. 13. The order (Annex. 12) dated 21.12.1991 modifies the sub-section (4) of Section 34 of the Act of 1965. The Government order dated 21.12.1991 reads as under GOVERNMENT OF RAJASTHAN AGRICULTURE (GR. 4) COOPERATIVE DEPTT. 14. By this order Sub-section (4) of Section 34 of the Act of 1965 has been modified. Section 34 deals with the disqualification of membership etc. of the Committee. Sub-section (4) says that no person shall be eligible for being elected or appointed as a member of a Committee if he is in default to the society or to any other society, in respect of any loan or loans taken by him for such period as is specified in the bye-laws of the society concerned or in any case for a period exceeding three months and such a member as aforesaid shall cease to hold office as soon as he has incurred the disqualification. Sub-section (4) of Section 34 reads as under (4) No person shall be eligible for being elected or appointed as a member of a Committee if he is in default to the society or to any other society in respect of any loan or loans taken by him for such period as is specified in the bye-laws of the society concerned or in any case for a period exceeding three months and such a member as aforesaid shall cease to hold office as soon as he has incurred the disqualification mentioned in this Sub-section. 15. Thus, by virtue of Sub-section (4) if any member commits default then he will be disqualified. But by this order the limited amendment has been brought about that under Sub-section (4) of Section 34 the default shall only be the default to the society to which the election is sought. It only modifies the rigor of Sub-section (4). Previously, if any member made even default to any society then he was to be disqualified for election to any Committee. But by this modification of sub-section (4) of Section 34 only a minor change has been brought about that a defaulter should be construed as a defaulter to a particular society where he intends to contest the election for being a Member of a particular Committee. This modification in Sub-section (4) of Section 34 appears to be more of clarifactory in nature rather than frustrating the purpose of the Act. This amendment is not related to any particular society but this is for all societies in Rajasthan. Therefore, looking to the nature of the amendment which has been brought about it cannot be said that it is malafide or with the intention of frustrating the thrust of the cooperative movement. 16. Learned Counsel for the petitioner submitted that under Section 14 a power has been conferred on the Registrar that any amendment may be made in the bye-laws of the cooperative society which is necessary or desirable in the interest of such society. It is submitted that the power of amending the bye-laws has been conferred on the Registrar i.e. the Registrar is a statutory authority under the Act, which can bring about the amendment in the bye-laws. So far as this amendment is concerned this argument of the learned Counsel cannot be countenanced for the simple reason that no amount of amendment in the bye-laws override sub-section (4) of Section 34. However, we will deal with this argument in greater detail when we deal with the second notification of the State Government dated 21.12.1991 at appropriate place. Therefore, so far as this notification is concerned, we are of the opinion that this notification has been issued by the Slate Government to clarify Sub-section (4) of Section 34 of the Act in the cooperative societies all over Rajasthan and this cannot be said to be arbitrary or maiafide as it is applicable to all societies in Rajasthan. Thus, this notification does not suffer from any vice of arbitrariness or otherwise. 17. The next question is regarding the notification dated 21.12.1991 (Annex. 13). By virtue of this notification a major change has been brought about regarding reservation for Scheduled Castes and Scheduled Tribes. The order dated 21.12.1991 (Annex. 13) reads as under:jktLFkku lgdkjh laLFkk vf/kfu;e ;k blds v/khu fojfpr fu;eks ;k fdlh laLFkk dh mifof/k;ks es vfrfo"V fdlh izfrdwy ckr ds gksus ij Hkh vuqlwfpr tkfr ,oa tutkfr ds lnL;ks dsk d`f"k foi.ku laLFkkvks dh lfefr;ks es leqfpr izfrfuf/kRo nsus ds fy, jkT; ljdkj jktLFkku lgdkjh laLFkk vf/kfu;e 1965 dh /kkjk 139 ,oa blds vUrZxr fojfpr fu;e 1966 ds fu;e 118 ds vUrZxr iznRr vf/kdkjks dk iz;ksx djrs gq, mijksDr vf/kfu;e dh /kkjk 33 ds izko/kkuks dsk fuEu la'ksk/kuk ds lkFk ykxw djus dk vkns'k nsrh gS A& ¼1½ d`f"k foi.ku laLFkk dh lfefr es dqy 9 fuokZfpr lnL;ks ds nks lnL;ks ds in vkjf{kr gskxs ftues & ¼v½ lfefr ds nks O;fDrxr lnL;ks es ls ,d lnL; dk in vuqlwfpr tutkfr ds fy, vkjf{kr jgsxh A ¼vk½ nks O;fDrxr lnL;ks dks NksM+dj 'ks"k lkr lnL;ks es ls ,d lnL; dk in vuqlwfpr tkfr ds fy, vkjf{kr jgsxk A ¼2½ ;fn mijksDr nks vkjf{kr inks es ls fdlh ,d ds Hkh dkj.k ------- in fuokZpu ls ugh Hkjk tk lds rks jkftLVªkj dks ;g vf/kdkj gksxk fd og vuqlwfpr tkfr ,oa tutkfr ds lnL;ks dks fdlh Hkh fLFkfr gks lEcfU/kr laLFkk dks lfefr es euksuhr djs A ¼3½ mijksDr vf/kfu;e dh /kkjk 13 o 14 rFkk blds vUrZxr fojfpr fu;e 1966 ds fu;e 11 dh izfdz;k ds gksrs gq, Hkh d`f"k foi.ku laLFkk ds mifu;eks es bl vk'k; dk lh/kk la'ksk/ku fd;k gqvk ekuk tkosxk A vkKk ls ] gLrk{kj ¼ ,e0 ,y0 esgrk ½ 'kklu lfpo lgdkjh foHkkx jktLFkku t;iqj A 18. The basic purpose behind this is to reserve one seat in the Committee each for a member of Scheduled Castes and Scheduled Tribes in the Agricultural Marketing Societies. Section 33 provides that at least one third of the members of the Committee of a village service society, farmer service society, a Primary Land Development Bank and a Central Cooperative Bank shall be from weaker sections of the society and if, for any reason whatsoever, the member of weaker sections to the extent as aforesaid are not elected on the Committee of any society or a vacancy occurs amongst them, the deficiency or vacancy shall be made good or filled in as the case may be, by the State Government or by the Registrar, if so authorised by the State Government in relation to any society, by nominating persons belonging to weaker sections on the Committee of such society. The basic germ for giving the benefit to the Weaker sections of the Society was already in existence in Section 33 of the Act of 1965. Therefore, instead of the Registrar directing under Section 14 that each society should amend its bye laws suitably by incorporating reservation of one seat for Scheduled Castes and one seat for Scheduled Tribes, the State Government in exercise of the power conferred under Section 139 read with Rule 110 has directed that such modification should be treated to have been inserted in the bye-laws of the societies. 19. Learned Counsel for the petitioners submitted that under Section 14 of the Act of 1965 the amendment of the bye-laws can only be brought about by the Registrar, a statutory authority under the Act. Therefore, the Government cannot take resort to Section 139 by bringing this notification as it runs counter to Section 14 of the Act. 20. It is true that under Section 14 of the Act of 1965 the Registrar can direct each society to suitably amend its bye-laws and reserve one seat each for Scheduled Castes and Scheduled Tribes. But instead of that the State Government has exercised this power under Section 139 and has brought about this change in all the Agricultural Marketing Societies no offence can be taken to this method. It was quite possible that the State Government could have directed the Registrar that certain reservation for Scheduled Castes/Scheduled Tribes should be made in the societies and he could have initiated action by following the procedure contained under the Act and the Rules. Instead of doing a thing indirectly, the State Government has done it directly by cutting short these formalities and allowing the matter to drag on for years together in the bureaucratic jungle. If the State Government has resorted to the provisions of Section 139 straight way and made reservation for Scheduled Castes and Scheduled Tribes in such class of societies for the purpose of effecting the intention of Section 33 of the Act then such action cannot be said to be against the purpose of the Act. If the State Government had no power under Section 139 and the power was only left to the Registrar then his argument could have some substance, But since the State Government has a power under Section 139 to modify the provisions of the Act or the Rules and the State Government in the purported exercise of this power has resorted to this method then we do not find that the State Government has exceeded its jurisdiction. Therefore, we are of the opinion that the notification dated 21.12.1991 also does not suffer from any vice of violation of any statutory provision or is actuated with malice or otherwise. On the contrary, the State Government has provided a specific benefit to the weaker sections of the society in order to effectuate the mandate contained in Section 33 of the Act of 1965 which provides that one third of the members of the Committee shall he from the weaker sections of the society, by reserving one seat each for Scheduled Castes and Scheduled Tribes candidates. The State Government has rather effectively brought into force the spirit behind Section 33 of the Act. Thus, in this view of the matter, we are of the opinion that this contention of the learned Counsel is also without any basis. 21. The next question is that both these orders were brought about with effect from 21.12.1991 but before that in certain societies the election programmes have been issued and the effective steps for holding the elections were initiated. Therefore, the learned Counsel submitted that these orders should be implemented prospectively and wherever the election programme has been issued and the election process has started it should be continued and completed under the provisions which were in force at the time when the election programme was issued. 22. Learned Counsel for the respondents have contested the matter and submitted that once these orders are legally issued then the election officer cannot ignore the effect of these orders and the elections will have to be conducted in accordance with law, which is in force. 23. We have considered the submission of the learned Counsel. This Court in Chaina Ram's case (supra) has taken the view that the Registrar has no power to postpone the election when the process of election has been started and the voters list was published and nomination papers have been filed. It has been held that the Registrar has no power under Section 75 or Section 128 to stay the election process after the same is commenced. It was observed as under: The Registrar is not competent as the scheme of the Rules and the Act show, to make an interference otherwise than by way of an appeal in Rules. Simply because somebody approaches him and makes a grievance about the incorrect preparation of the voters list the Registrar cannot make any interference. It is interesting to note that no person approached the Minister or the Registrar that his name has not been wrongly shown in the voters list. A vague grievance of the voters list being not correctly prepared, does not authorise the Registrar to stay and stall the election of the Committee of the society. 24. In the present case, a wireless message was issued by the Government that the election should be held in terms of these orders and thereafter the Registrar issued the consequential order staying the election which was scheduled to be held on 29.12.1991 and 30.12.1991. In pursuance of this, the Assistant Registrar issued the order dated 26.12.1991 staying the election scheduled to be held on 29.12.91 and 301.12.1991. 25. Now, before deciding this issue, the first and foremost question is from what date the election shall be deemed to have been commenced. This question also came up for consideration before this Court in the case of Raju Ram v. Gram Sewa Sahakari Samiti, Momasar and Ors. D.B. Civil Writ Petition No. 2412 of 1986, decided on 15.10.1987 and a Division Bench of this Court in the case of Raju Ram (supra) had an occasion to examine this aspect under the Cooperative Societies Act and the Rules and took the view that the election shall be deemed to have been commenced at moment when the Election Officer issues the election programme. It was observed as under: The question regarding the starting point of election came for consideration before Hon'ble the Supreme Court in the case of Mohinder Singh Gill and Anr. v. The Chief Election Commissioner, New Delhi and Ors. and it was held that election covers the entire process from the issue of the notification under Section 14 of the Representation of the People Act to the declaration of the result under Section 66 of the Act. It is not in all cases that the voters' list is prepared after the notification for a particular election i.e. to say that the voters; list is already there and then notification for election is issued and then the persons who are in the voters; list are allowed to vote for that particular election. The provisions for conducting elections for the Co-operative Societies are specific. For the election of the Managing Committee of the Cooperative Society, voters; list is prepared for the particular election. The relevant portion of Rule 32 of the Rajasthan Cooperative Societies Rules, 1966 (hereinafter to be referred "the Rules") makes this position clear. Rule 32 (4)(i) and (ii) of the Rules read as under: 4(7) The Election Officer shall prepare a list, as it stbod thirty days prior to the date fixed for the poll of members who are qualified, in accordance with the provisions of the Act, the rules and the bye-laws framed thereunder to vote at the election and published by affixing them to the notice board at the head office of the society and all its branches for inviting objections within a week. The list shall specify the admission number, name of the eligible members and in case of individual members, the name of father or husband as the case may be and the address of such members. (ii) The Election Officer after considering the objections shall finalise the list and publish the same as above not less than ten days prior to the date fixed for the Election. A copy of the list shall be supplied by the Election Officer to any member on payment of Rupee one per folio. These provisions make it clear that so far as the Co- operative Societies are concerned preparation of list is an integral part of the process of election. The question regarding the legality of voters' list for the election. The question regarding the legality of voters' list for the election of the Managing Committee of the Co-operative Society came for consideration before the Division Bench of this Court in the case of Bharat Lal Dugal v. The Registrar, Sahakari Samitl Raj. Jaipur and Anr. 1987 RLR (1) 730 and it was held that the preparation of voters' list for election of members of Managing Committee of Coop. Society is a part of election process and dispute relating to legality of voters' list is a dispute arising in connection with the election asnd as such it can be properly adjudicated in proceedings Under Section 75 of the Act and as such writ petition cannot be entertained. 26. Therefore, in the light of the decision of the Division Bench of this Court, the election shall commence from the date the notification for election is issued. Therefore, in the present case, the election programme for conducting the election was issued by the Election Officer on 9.12.1991 (Annex. 7.). In pursuance of this the nominations were also filed and scrutiny of the nomination papers was also made. Therefore, in the light of the legal position which emerged on account of the ratio laid down by the Division Bench as aforesaid the day the election programme was issued i.e. 9.12.1991 by the Election Officer that should be the date treated to be the date of commencement of the process of election. Once the election process starts then neither the State Government nor the Registrar is competent to stay the election in view of the decision of the Division Bench of this Court in the case of Chaina Ram (supra). The resultant position is that once the election programme is issued then neither the State Government nor the Registrar has a power under Section 75 or Section 128 to stay the election. As such the State Government or the Registrar was not competent to stay the election. If the stay order has not been granted by the State Government or the Registrar then the election would have been completed and concluded. But on account of the stay order passed by the State Government the election could not be held and these two orders of the State Government issued under Section 139 dated 21.12.1991 came to be issued. But since the process of election has already commenced and during the process of this election both these notifications (Annex. 12 and 13) dated 21.12.1991 came to be issued, therefore, they can be given only prospective effect as the election process has already commenced with the issuance of the election programme by the Election Officer. Thus, the election has to be held on the basis of the law which was obtaining at the time when the election process commenced and any notification or any amendment brought about by the State Government during the election process cannot be taken into consideration. Similarly, this Court has also taken the view that once the election is stayed and it commences back then it shall resume from the stage where it was left as has been observed in the case of Chaina Ram (supra). Therefore, in view of the law laid down by this Court by series of judgments mentioned above it becomes clear that once the election process starts then under Section 75 or Section 128 of the Act of 1965 the State Government or the Registrar has no authority to stay the election, however, subject to appeal under Rule 24 of the Rules. But that is not the case here. It has also been held that the election process starts from the moment the election programme is issued and it has also been held that if any stay is granted by any authority rightly or wrongly or by any court then the election shall resume back from the stage where it is left. Once having these parameters fixed by the decision of this Court, the next question follows is that if any law is brought about during the intervening period then such law will have prospective effect and it shall not affect the election process which has already commenced. Once the election process starts it cannot be stayed and it has to resume back from the stage where it is left then obviously the effect is that the law which has been changed during the intervening period cannot be given retrospective effect. As such the election which has been stayed by the order of the Government has to commence from that stage and it has to be completed and concluded on the basis of the law which was obtaining on the date the election programme was issued. 27. Therefore, in the result, we hold that wherever the elections have not been completed and the election programme has been issued and the process of election was in progress and the same was stayed by the Government then such elections shall be held on the basis of the law which was obtaining at the time of issue of the election programme and both the notifications of the State Government dated 21.12.1991 (Annexs. 12 and 13) shall be ignored. 28. It has been brought to our notice that in some of the cases elections have been held on the basis of the amended law i.e. Annexs. 12 and 13. There is no such case before us. However, if the election has already taken place and the parties have not approached this Court then those elections shall not be reopened on the basis of this decision. However, where the election has been stayed and the same has not been resumed back, the same may be held according to the law which was obtaining at the time the election programme was issued. 29. All the writ petitions are accordingly disposed of in the light of the observations made above.

Author: A Mathur

Uda Ram And Anr. vs The State Of Rajasthan And Ors. on 28 August, 1992

Rajasthan High Court

JUDGMENT Kumari P. Janaki Amma, J. 1. The question involved in this appeal is whether the suit brought by the appellant for a declaration of the validity and genuineness of a will is hit by either Section 213 of the Indian Succession Act or the proviso to Section 34 of the Specific Belief Act, 1963. 2. The facts of the case are as follows : Deceased Yovan Samuel was the brother of the plaintiff-appellant. He is stated to have executed Ext, P2, a will dated 23-6-1958, registered as Will No. 9 of 1958. Yovan Samuel died on 31-5-1959 about a year after the execution of Ext. P2 will. The appellant was granted probate by the District Court, Trivandrum in Probate Case. No. 2 of 1960. No notice had been given to the. defendant-respondent who is admittedly a nephew of the deceased being the son of a deceased brother. On a caveat being presented by the defendant, the probate was revoked with liberty to initiate fresh proceedings. The plaintiff did not file any fresh application for probate but instituted a suit for a declaration that Exh. P2 will is a validity executed document and that Ext. D17, will D/-20-12-1957 set up by the defendant is invalid. The suit was contested by the defendant who contended that Ext. P2 will was brought into existence by misrepresentation, undue influence and coercion. The defendant also challenged the maintainability of the suit for declaration without a prayer for consequential relief. The Principal Subordinate Judge, Trivandrum decreed the suit with costs, in appeal, the defendant contended that the suit was barrel in view of Section 213 of the Indian Succession Act. The appellate court upheld the plea and dismissed the suit. The second appeal is filed challenging the above decree. 3. Section 213 (1) of the Indian Succession Act reads : "No right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in India has granted probate of the will under which the right is claimed, or has granted letters of administration with the will or with a copy of an authenticated copy of the will annexed." The contention put forward is that inasmuch as the order in the probate proceedings stands cancelled, it is not open to the appellant to institute proceedings on the basis of the will-The remedy open to him is to initiate fresh proceedings under the Indian Succession Act for grant of a probate. The appellant, however, would contend that Section 213 is a bar only for establish-ing a claim under the will. The suit in the present case was not instituted to establish the rights of the appellant either as an executor or a legatee under the will but only for a declaration that Ext. P2 will is a properly executed document. Reference was made in the course of the hearing to the decision in State v. Devassy Lonappan (AIR 1956 Trav. Co. 215). Though the bar under Section 213 of the Indian Succession Act was raised by the appellant in that case, the High Court held that as the plaintiff instituted the suit in his own right, there was no question of non-compliance of Section 213 of the Indian Succession Act. In Caralapathi Chunna Cunniah v. Cota Nammalwariah ((1910) ILR 33 Mad 91) and Ganta Daniyelu v. Gunti Yesu Ratnam (AIR 1925 Mad 1110) relied on by the appellant, what was held was that a defendant could set up an un-probated will in answer to the plaintiffs claim for testator's property. These decisions are no longer law in view of the Full Bench decision in Ganshamdoss Narayandoss v. Gulab Bi Bai (ILR 50 Mad 927: AIR 1927 Mad 1054) which has been approved and followed in Hem Nolini v. Isolyne Sarojbashini (AIR 1962 SC 1471). The Supreme Court held in the latter case that Section 213 of the Succession Act creates a bar to the establishment of rights under a will by an executor or a legatee unless probate or letters of administration of the will have been obtained, and it is immaterial whether the right is claimed as a plaintiff or as a defendant, 4. In Narasayyamma v. Andhra Bank (AIR 1960 Andh Pra 273) cited by the respondent, the point involved was whether a person after accepting the office of an executor under a will could file a suit as heir to the testator as if on intestacy. It was held that he should obtain probate before filing the suit. 5. The decisions referred to above only lay down that an unprobated will cannot be the basis for establishing a right conferred thereunder. However, the language of Section 213 does not warrant a conclusion that an unprobated will cannot be acted upon for purposes other than for enforcement of the rights thereunder. The section does not stand in the way of an unprobated will being used for collateral purposes. 6. So far as the present proceedings are concerned, the plaint contains definite averments that under the will dated 23-6-1958 Yovan Samuel bequeathed all his properties in favour of the plaintiff, that an earlier will executed in favour of the defendant is invalid and that the invalid will in favour of the defendant stands in the way of the plaintiff's valid title to the properties comprised in the will. The reliefs sought include a declaration that the will in favour of the plaintiff dated 23-6-1958 is the legally effective will despite the existence of the will, dated 20-12-1957. The recitals in the plaint taken along with the reliefs claimed amount to establishment of the plaintiff's right as the sole beneficiary under the will. The suit, if decreed, would defeat the purpose of Section 213 of the Indian Succession Act. In other words, the suit in the form in which it is brought is hit by Section 213 of the Indian Succession Act. Whether a suit for a bare declaration that a document is the will of a particular person when no reference is made in the plaint to the rights conferred on the plaintiff is hit by Section 213 of the Act does not arise for consideration in this case. 7. Apart from the above, there is another objection to the form of the suit. Being a suit for declaration, it is governed by Section 34 of the Specific Relief Act 1963 which corresponds to Section 42 of the earlier Act 1 of 1877. Section 34 reads : "Any person entitled to any legal character or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief : Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title omits to do so." It is clear from the proviso to the section that in all cases where the plaintiff in addition to a declaration is able to seek further relief but omits to do so, the courts should refrain from passing a declaratory decree. The averment in para 3 of the plaint is that under the will, Ext. P2, Yovan Samuel bequeathed all his properties in favour of the plaintiff. The declaration sought is that Ext. P2 will is legally effective and Ext. D17 will is not genuine. If Ext. P2 will is legally effective, the plaintiff is entitled to probate in respect of the will A declaration regarding the validity of the will; will be ineffective if it is not followed by a grant of probate. In other words, a declaration without grant of probate may not enable the plaintiff to enforce his rights under the will. The suit in the present form is, therefore, hit by the proviso to Section 34 of the Specific Relief Act. ' 8. Whether a declaration asked for should be granted or not is a matter entirely left to the discretion of the Court. It may be that if the declaration sought would serve in putting a stop to the dispute between the parties it is open to the court to grant the relief. But in the instant case, if a declaratory decree is passed, it would help the plaintiff only in securing what is termed "a tactical advantage" in proceedings that may hereafter be instituted for obtaining a probate of the will. 9. The decision in the suit will not be the final word regarding the genuineness of the will because the decree in a suit of the kind is binding only on the parties thereto whereas the decision of the Probate Court is a judgment in rem binding also on persons not parties thereto. No useful purpose will be served by a decree declaring the validity of the will, if the identical issue is to be tried de novo in proceedings for grant of probate. A declaratory decree being a discretionary relief, the Court is expected to take into consideration the above aspect in deciding whether relief should be given. The object of the proviso to Section 34 of the Specific Relief Act is to avoid multiplicity of suits by preventing a person from getting a mere declaration of right in one suit and then seeking in another suit the remedy without which the declaration would be useless. The object is not served by the present proceedings. On the other hand, if the plaintiff, instead of filing the present suit for declaration, had moved for obtaining probate of the will after notice to those interested, he would have been in a position to enforce his rights under the will. 10. In Suryanarayanamurti v. Tam-manna ((1902) ILR 25 Mad 504), a suit was brought for a declaration that a will was illegal and invalid being one fabricated by the defendants. The plaintiff contended that the property involved was joint family property while the defendant set up a case that it was the self-acquisition of the testator. The maintainability of the suit was challenged on the ground that it was hit by proviso to Section 42 of the Specific Relief Act 1 of 1877. A Division Bench of the Madras High Court consisting of Benson and Bhashyam Iyengar, JJ. upheld the objection and held that if the property was joint family property as alleged by the plaintiff, he could have claimed partition of the property, which was a further relief of substantial character. The suit was accordingly dismissed. 11. The ratio of the above decision applies to the instant case. It may not be a proper exercise of the discretion to grant the relief asked for by the appellant in this case when the remedy of initiating proceedings under the Indian Succession Act is available to him. I do not find my way to allow this second appeal. It is accordingly dismissed with costs.

Author: K P Amma

John Guruprakasam vs Yovel Nesan And Ors. on 7 April, 1978

Kerala High Court

HIGH COURT OF ORISSA, CUTTACK JAIL CRIMINAL APPEAL NO.307 OF 1998 From the judgment dated 27.08.1998 passed by Shri A.P. Das, Second Additional Sessions Judge, Cuttack in S.T. No.185 of 1997. ....... B.P.RAY, J. I agree. ............................. B.P. RAY, J. Orissa High Court, Cuttack The 2nd March, 2010/G.D. Samal Rohita @ Sumanta Dalai @ Das and another ....... Appellants Versus State of Orissa ........ Respondent For Appellants - Miss Bijayalaxmi Tripathy For Respondent - Mr. J.P. Pattnaik, Additional Govt. Advocate. PRESENT THE HON'BLE SHRI JUSTICE PRADIP MOHANTY AND THE HON'BLE SHRI JUSTICE B.P.RAY -------------------------------------------------------------------------------------------- Date of hearing & judgment : 02.03.2010 PRADIP MOHANTY, J. In this appeal from jail, the appellants challenge the judgment and order dated 27.08.1998 passed by learned Second Addl. Sessions Judge, Cuttack in S.T. No.185 of 1997 convicting them under Section 302/34, IPC and sentencing them to undergo imprisonment for life. 2. Prosecution case in brief is that on 06.10.1996 at about 3.00 PM both the appellants called the deceased from his house. The deceased accompanied them. After half an hour of departure of the deceased, one Bharati, who was otherwise called as Bhaga, came and reported the mother of the deceased (P.W.1) that her son was lying in a 2 pool of blood near the house of Mangal Singh. P.W.1, her husband (P.W.2) and their son-in-law (P.W.8) rushed to the spot and found the deceased was lying in a pool of blood. His intestine had come out and there was also injury on the neck. On query, the deceased disclosed that Rohit and Kusa (present appellants) had stabbed him. The deceased was shifted to S.C.B. Medical College Hospital. P.W.2, the father of the deceased, orally reported the matter in the hospital itself to the I.I.C., Chauliaganj P.S. which was reduced to writing by an A.S.I. of police. On the basis of the said report, the case was initially registered under Section 307/34, IPC and after the death of the deceased it turned to one under Section 302/34, IPC. Police took up investigation and after its completion submitted charge-sheet against both the appellants. 3. Plea of the appellants is complete denial of their involvement in the commission of the offence. 4. In order to prove its case, prosecution examined as many as eleven witnesses including the doctor and the I.O. and exhibited fifteen documents. Defence examined none. 5. Charge was framed against the appellants under Section 302/34, IPC. The learned Addl. Sessions Judge after conclusion of the trial convicted both the appellants under section 302/34, IPC and sentenced them to undergo imprisonment for life basing upon the evidence of P.Ws.1, 2, 6 and 8 as well as leading to discovery and dying declaration. 6. Miss. Tripathy, learned counsel for the appellants assails the judgment on the following grounds: 7. Mr. Pattnaik, learned Additional Government Advocate vehemently contends that the dying declaration recorded by the doctor clearly discloses involvement of both the appellants. There is no material to disbelieve the evidence of P.Ws.1, 2 and 8 which is corroborated by P.W.6, an independent witness. Leading to discovery and seizure of the weapon of offence on production by appellant no.1 has been proved under Ext.8. In the instant case, chain of circumstances is complete leading to the only hypothesis that the appellants alone are the perpetrators of the crime. The trial court has rightly passed an order of conviction and there is no reason for this Court to interfere with the same. 8. Perused the LCR. P.W.2 is the father of the deceased. He is the informant. He deposed that at 4.00 PM when he was present in his house both the appellants came and called his son. After putting on pant and shirt the deceased went with the appellants. After some 4 moments, Soubhagini and Bhaga came and informed that Kusa and Rohita had assaulted the deceased and he was lying injured near the house of Mangal Singh. Getting this information, he along with his wife and son-in-law went to the spot. The deceased was conscious and was lying injured in a pool of blood. His stomach was cut and intestine had come out. The deceased disclosed before him (P.W.2) that Kusa and Rohita had inflicted the injuries by means of knife and fled away. At that time, S.P.'s vehicle was crossing. The people stopped the said vehicle and shifted the injured in it to the hospital. In the hospital, he lodged FIR before the I.I.C., Chauliaganj P.S. vide Ext.1. After some time, the deceased succumbed to the injuries. Nothing substantial has been brought out by way of cross-examination from the mouth of P.W.2 to disbelieve his evidence. The defence, however, confronted him with his statement regarding disclosure of the names of the assailants by Soubhagya and Bhagabati. His evidence gets corroboration from the FIR. P.W.1 is the mother of the deceased and wife of the informant (P.W.2). She corroborated the statement of P.W.2 in material particulars. She specifically stated that the deceased was called by Kusa and Rohita as also about the disclosure of the names of the assailants by the deceased. Nothing has been elicited by way of cross-examination to disbelieve her evidence. P.W.8 is the brother-in-law of the deceased and son-in-law of P.Ws.1 and 2. He corroborated the evidence of P.W.2. There is no material to discard the evidence of P.W.8. P.W.6 is an independent witness who arrived at the spot and found the parents of the deceased holding the injured. He also admitted presence of P.W.8 and shifting of the deceased to the hospital by a police van. He specifically stated that the deceased was alive at the time of admission in the hospital and died after some time. He further stated that the deceased disclosed the names of Rohita and Kusa in presence of everybody at the spot. He is also a witness to the seizure of the wearing apparels of the deceased and has proved Ext.7. Attempt was made by the defence to damage the evidence of P.W.6 but it was intact with regard to the dying declaration. P.W.3 is a police constable and P.W.4 is the S.I. of police. Both of them are witnesses to the inquest and seizure of wearing apparels of the deceased. P.W.5 is 5 the doctor who conducted autopsy over the dead body of the deceased and found the following injuries: He opined that the injuries were ante mortem in nature and could have been caused by pointed and sharp cutting weapon. The cause of death was due to shock and haemorrhage resulting from injury no.2 and its corresponding internal injury which was fatal to cause death in ordinary case. He specifically opined that the injuries found on the deceased are possible by M.O.I. In cross-examination, he admitted that external injury nos.3 to 6 are superficial in nature but could not be caused by fall that too over broken glasses. P.W.7 is a local person and a witness to the leading to discovery. He specifically stated that appellant no.1 Rohita while in police custody disclosed that he stabbed the deceased with a knife along with appellant no.2, led the police to the place where he had thrown the knife and gave recovery of the same. The knife was seized under Ext.8 Nothing has been elicited by way of cross-examination from his mouth to discard his evidence. P.W.9 is the Assistant Professor of Surgery of the S.C.B. Medical College and Hospital who recorded the dying declaration. He specifically stated that the injured was in a very serious condition and 6 at 5.05 PM he recorded his dying declaration. The deceased disclosed before him how he received the injuries and he recorded the same vide Ext.10. He proved Ext.10 and his signature thereon as Ext.10/1. He further stated that the Resident Surgeon on duty Dr. Kalyan Ananda Mohanty was present at that time. He proved the signature of the Resident Surgeon as Ext.10/2. In cross-examination, he admitted that there was no endorsement in Ext.10 that the said declaration was recorded by him and that the injured was in a free state of mind and was capable to make such declaration. This apart, nothing has been elicited from the mouth of P.W.9. P.W.10 is the Investigating Officer. He proved the FIR (Ext.1) and the seizure lists. He stated that after arrest appellant no.1 Rohita while in custody disclosed before him in presence of the witnesses about the concealment of the weapon of offence, led him and other witnesses to the place of concealment and gave recovery of the same. He proved Ext.12, the voluntary disclosure statement of appellant no.1, and also Ext.8, the seizure list prepared in token of seizure of the weapon of offence (M.O.I). He also proved seizure of the wearing apparels of the appellants vide Ext.13. In cross-examination, he admitted that he was not present at the time of recording of dying declaration by the doctor. He also denied that the injured was throughout unconscious. Nothing has been brought out through cross-examination by the defence to demolish the evidence of this witness. 9. In the instant case, there is no eye witness to the occurrence. The case is based upon circumstantial evidence. Evidence of P.Ws.1, 2 and 8 is very clear, cogent and consistent. There is no material to disbelieve the evidence of these witnesses to the effect, that the appellants went to the house of the deceased and called him, that the deceased accompanied them, that on being informed that the deceased was assaulted by the appellants and was lying injured near the house of one Mangal Singh they rushed to the spot, and that on being asked the deceased disclosed before them that he was assaulted by the appellants. This part of the evidence gets corroboration from the evidence of P.W.6. Before the doctor P.W.9, who recorded the dying declaration, the deceased 7 took the names of the appellants as his assailant. After the appellants were arrested, appellant no.1 led the police and gave recovery of the knife (M.O.I). The knife was identified in court by the witnesses. Added to it, clothings of appellant no.1 were seized by the police vide Ext.3 which were stained with blood. True it is that prosecution has not ascribed any motive, but that by itself cannot be a ground to treat the case with doubt. It has been ruled by the apex Court in Laxman v. State of Maharashtra, AIR 2002 SC 2973 that certification by the doctor in the dying declaration to the effect that the patient was conscious was indeed a hyper technical view. Apart from it, in the case at hand the deceased first disclosed before his parents (P.Ws.1 and 2) and other witnesses (P.Ws.6 and 8) the names of the appellants as his assailants and the same was reiterated by him in the hospital before the doctor, as is evident from the dying declaration. P.Ws.1, 2 and 8 have categorically disclosed that Kusa (appellant no.2) was along with Rohita (appellant no.1). The deceased also disclosed the names of both the appellants. For all these reasons, this Court arrives at the irresistible conclusion that prosecution has been able to prove that both the appellants with their common intention have committed murder of the deceased. 10. In the result, therefore, the Jail Criminal Appeal is dismissed by sustaining the conviction and sentence of the appellants as recorded by the trial court under Section 302/34, IPC by the impugned judgment. ................................ Pradip Mohanty,J.

Rohita @ Sumanta Dalai @ Das vs State Of Orissa on 2 March, 2010

Orissa High Court

Court No. - 5 Case :- WRIT - C No. - 30532 of 2008 Petitioner :- Anjuman-E-Rahmania And Others Respondent :- State Of U.P. And Others Petitioner Counsel :- Jamal Ali Respondent Counsel :- C.S.C.,Shamim Ahmed Hon'ble Sabha°eet Yadav,J. List after two months. Interim order, granted earlier by this Court is extended till the next date of listing. Order Date :- 13.7.2010 Kamlesh Maurya

Anjuman-E-Rahmania And Others vs State Of U.P. And Others on 13 July, 2010

Allahabad High Court

JUDGMENT V.V. Kamat, J. 1. This judgment would dispose of in all 144 Revision Applications filed by respective petitioners under section 18(iii) of the Land Acquisition Act, against the order of the Special Land Acquisition Officer, Marathwada Krishi Vidyapeeth, Parbhani, declining to make a reference to the Court as contemplated under section 18 of the Land Acquisition Act. 2. The lands in question, together with the houses and other structures standing thereon, are sought to be acquired for the purposes of extention of the area of Marathwada Krishi Vidyapeeth, Parbhani, on the basis of notification under section 4 of the Act, punished in the Gazette on May 22nd, 1980. It appears that thereafter, provisions of section 6 and section 9 of the Land Acquisition Act were complied with, and, in the land acquisition proceedings before the Land Acquisition Officer, these claimants lodged their claims, inter alia, contending that alongwith lands in question, their residential houses are also acquired, as a result of which, the claimants were constrained to change their residence. 3. It appears that the awards were passed on April 14th, 1986 and the amount of compensation appears to have been received by the claimants of April 16th, 1986. 4. In all these Revision Applications, it is contended on behalf of the petitioners claimants that on account of change of residence, the petitioners claimed additional compensation; that necessary and proper enquiry has not been carried out by the Special Land Acquisition Officer with reference to the situation factor of the suit property, the structure and the nature of the construction standing thereon. It is contended that the amount of compensation awarded by the Special Land Acquisition Officer is grossly inadequate. 5. The petitioners got the suit property measured and valued by an Architect and obtained his opinion to the effect that the valuation in every respect is much more than the award passed by the Special Land Acquisition Officer. 6. The petitioners, claimed that the property under acquisition was in a developed locality. Village Sendra, has transport facility and is at a distance of about 3 Kms. from Parbhani town. The learned Counsel stated before me that the village is today included in the Municipal area of Parbhani town. It is further contended that as a result of prior acquisition of lands by Marathwada Krishi Vidyapeeth, there has been a spiral rise thereafter at this village. The petitioners-claimants have stated all these aspects in their applications for reference, which according to them, has been filed within the period of limitation and complied in all respect. This was in the year 1986, in the month of April. 7. Nothing happened thereafter for a period of well.-night three years, and, on August 11th, 1989 the petitioners-claimants received a shock informing them that their reference applications of the year 1986 are being disposed of on the ground that the amounts were not withdrawn by lodging the necessary protest, presumably, as is required under the provisions of section 31(2) of the Land Acquisition Act. 8. All the petitioners have stated on oath in all these applications that they have, in fact, withdrawn the amount after lodging protest in writing before the Special Land Acquisition Officer. 9. These Civil Revision Applications were accompanied by Civil Applications for condonation of delay. By my order dated February 1st, 1991 the delay in filing these Revision Applications was condoned after hearing the learned Assistant Government Pleader for the respondents. However, it is pertinent to refer to the reaction of these petitioners on receiving this intimation after a period of three years. The petitioners claimants, who appear to be all rustic villagers of the village, approached their advocate and requested him to look into the matter. They informed their advocate that matters amounting to 400 to 500, have been rejected by the same Land Acquisition Officer just by a stroke of pen. Their advocates collectively decided to meet the Collector of the District, (respondent No. 1), and to request him to issue necessary directions to the Special Land Acquisition Officer. These applications for condonation of delay contained a specific averment that the Collector, Parbhani-Mr. Ramani-promised the advocates to look into the matter. The petitioners waited for about two to three months and repeated their requests by an application dated October 19th, 1990 through their advocate. The petitioners have averred that the Collector, Parbhani, promised to look into the matter and issue necessary instructions. The total inaction on the part of the Collector, Parbhani compelled these petitioners to approach this Court by these Revision Applications. These Revision Applications were admitted and were made returnable for immediate hearing and disposal, and, are accordingly, being considered by me by this judgment. 10. On hearing the learned Counsel for the parties, it appears that atleast in more than one hundred of these application, copies of the protest letters are annexed and, apart therefrom, each one of these Revision Application contains an averment that the petitioners have accepted the amount of compensation under protest and have filed an application for reference under section 18 of the Land Acquisition Act within the statutory period of limitation. This position is not controverted on behalf of the respondents. 11. Shri Wagh, the learned Assistant Government Pleader appearing for the respondents, placed heavy reliance on the provisions of section 31(2) of the Land Acquisition Act, which deprives a claimant of his right of reference. The learned Assistant Government Pleader submitted strenuously that the protest is to be proved to have been lodged at the time of acceptance of the amount, and, in this context, the learned Counsel submitted that the question as to whether the protest has been lodged in accordance with the provisions of section 31(2) is the question which is to be borne out by the facts of the case. 12. The record clearly shows that for the purpose of extention of Maharashtra Agricultural University area, additional land appears to have been acquired by issuance of necessary notification. There are about 400 to 450 claimants concerned with this acquisition of land, and at any rate, atleast 144 claimants are before this Court by this Revision Application. All these claimants are villagers who have been dispossessed from their residence and the property surrounding, as a result of which, had to change their residential arena. 13. The provision of section 31(2) of the Land Acquisition Act is more or less in the nature of a waiver or an estoppel which debars the claimant of his right of adjudication of adequacy of compensation by the courts. 14. The learned Counsel for the petitioners, placed reliance on the decision of the Himachal Pradesh High Court, Laxmandas v. State of Himachal Pradesh & another, : (P.D. Desai, C.J. and R.S. Thakur, J.), delivered by the Chief Justice Shri. P.D. Desai, (now the Chief Justice of this Court) in which, the necessary provision has come up for consideration. It is observed that it would be irrational and unrealistic to assume that a rustic or an illiterate villager must be aware of the provisions of section 18 read with the second proviso the sub-section (2) of section 31 of the Act and to infer from his conduct amounting to the acceptance of the compensation without any express protest an intentional relinquishment of his own legal right or a representation deliberately made to the effect that he would not prosecute the further remedy available to him by way of a reference under section 18 of the Act. In the context, it is observed that the person against whom waiver is to be pleaded, must be aware of his existing legal right or privilege, which, by his words, deed or conduct, he must be shown to have intentionally and voluntarily given up. With reference to second proviso to sub-section (2) of section 31 of the Land Acquisition Act, it is specifically observed that the said provision, before its placement against the person, is to show that the person concerned, was aware of his right to make an application for reference, that he knew that such right would be defeated if he make an application for reference, that he knew that such right would be defeated if he accepted the compensation without protest, and, that he nevertheless accepted the compensation voluntarily without registering any protest, or his words or conduct were such as to tentatmount to an intentional representation that he was accepting the compensation without any reservation. 15. Observations really relate to the felt necessities of time in the context of the situation at hand. The petitioners are rustic villagers, nearly 400 to 500 in number, who have been rendered houseless as a result of the proposed acquisition, who had to change their residence to a different place and who have been intimated of the decline by the Special Land Acquisition Officer to make a reference after a period of more than three years. The petitioners have stated on oath that they have accepted the compensation under protest. In addition, atleast out of these 144 petitioners - claimants, more than 100 petitioners - claimants have in fact annexed the copies of their protest letters to these petitions. Not content with this, all the petition contain an averment on oath of acceptance of compensation under protest and lodging of the application for reference within the statutory period of limitation. 16. In my judgment, the observations of the Himachal Pradesh High Court are apt and proper in the context of time and situation and have more than a persuasive effect in the process of the decision of these matters. 17. The facts and circumstances referred to above do not hesitate me to come to the conclusion that the petitioners have accepted the amount of compensation under protest and have made their applications for reference within the period of limitation. 18. The result of the foregoing discussion is that these revisions are allowed. The order of the Special Land Acquisition Officer, M.K.V., Parbhani, refusing to make reference is quashed and set aside. Rule is accordingly made absolute. The Special Land Acquisition Officer, Marathwada Krishi Vidyapeeth, Parbhani (Respondent No. 2) is directed to refer the matter under section 18 of the Land Acquisition Act for determination of the question of adequacy of compensation to the District Court, Parbhani and on receipt of the reference, the proceedings be registered as Land Acquisition reference by the District Court, Parbhani, accordingly. The respondents are directed to pay the cost of the petitioners in each of these petitions, with necessary surcharge.

Author: V Kamat

Rama S/O Sakharam Jondhale ... vs State Of Maharashtra And Anr. on 14 February, 1991

Bombay High Court

1 32 14.09.2018 WP 5725(W) of 2018 AN Ct. No. 14 Rexsona Bibi -vs.- State of W.B. & ors. Mr. Sakya Sen Mr. Hasibul Islam ... for the State The report submitted by the State filed by the Superintendent of Police, Purba Burdwan be kept with the record. The matter stands adjourned for the day. (Rajasekhar Mantha, J.)

Rexsona Bibi vs State Of W.B. & Ors on 14 September, 2018

Calcutta High Court (Appellete Side)

JUDGMENT Rajamannar, C.J. 1. These two petitions filed under Article 226 of the Constitution were heard together because they raise a common question, namely, whether the production of an Income-tax verification certificate can be made a condition precedent for the entertainment of an application for the grant of an import licence. The provisions relating to this subject are to be gathered from several rules and notifications and public notices made and issued from time to time by the Government. They are contained in a Hand-book of Rules and Procedure relating to Import Trade Control published in 1952 by the Government of India, Ministry of Commerce and Industry, and the Import Trade Control Policy issued by the Government of India for different licensing periods. The Imports and Exports (Control) Act 1947, is in the barest terms and contains very little relevant information. Section 3(1) of the Act provides: The Central Government may, by order published in the official Gazette, make provision for prohibiting, restricting or otherwise controlling in all cases or in specified classes of cases, and subject to such exceptions, if any, as may be made by or under the order. (a) the import, export, carriage coastwise or shipment as ships' stores of goods of any specified description; (b) the bringing into any port or place in the Provinces of goods of any specified description intended to be taken out of India without being removed from the ship or conveyance in which they are being carried." Section 4 runs thus : "All orders made under Rule 84 of the Defence of India Rules or that rule as continued in force by the Emergency Provisions (Continuance) Ordinance, 1946, and in force immediately before the commencement of this Act shall, so far as they are not inconsistent with the provisions of this Act, continue in force and be deemed to have been made under this Act." 2. There is a Notification dated 1-7-1943 by the Government of India, published in exercise of the powers conferred by Sub-rule (2) of Rule 84, Defence of India Rules, prohibiting the bringing into India by sea, land, or air, from any place outside India of any goods specified in the schedule annexed thereto except inter alia the following; "(xii) any goods of the description specified in Part IV of the schedule which are covered by a special licence issued by an Import Trade Controller appointed in this behalf by the Central Government". Though control of import trade originated in the circumstances which prevailed during the last War, it had to be continued even after the termination of the War, owing to several difficulties which arose from several causes, one of which was that the sterling and doller resources of the country were limited and had to be conserved. One main feature of the licensing was the allocation of quota for specific classes of goods which would be allowed to be, imported from what are generally known as "hard currency" and "soft Currency", areas. The Government had to resort to a method of distribution of the available resources with reference to commodities, and a selection had to be made among the applicants, in view of the fact that the applications received for licences to import largely exceeded the available purchasing power of the country. The applications for licences were entertained both from "established importers" and newcomers, and the allocation of the quota to an applicant was more or less on the basis of the quota certificates given to the applicants in the previous licensing periods. It is common ground that with every application for an import licence a certificate from the Income-tax authorities, known as Income-tax verification certificate had to be produced. In the public notice dated 15-6-1953 issued by the Government of India, the procedure is thus laid down in this matter: All prospective applicants for import licence shall make application in the form prescribed to the proper incometax authority, who will verify the particulars from the record and subscribe the necessary verification certificates. When a complete certificate is given, a registration number is allotted to the applicant, which is valid for the half yearly licensing period in which the certificate was issued, and for the next two half-yearly licensing periods. Certain classes of applicants were entitled to obtain exemption from production of such certificates from the proper incometax authority. The particulars contained in the certificate comprise information regarding the trade name and address of the assessee the year in which the business was established, the Incometax circle in which the applicant is assessed to income tax, and the line or lines in which the applicant is doing business. The certificate to be granted by the Incometax officer should be in the following manner : "In my opinion the applicant mentioned above has been doing everything possible to pay the tax demands promptly and regularly and to facilitate -the completion of the pending or outstanding proceedings". In proper cases, the certificate would he that "this is a case for allotment of exemption number". Admittedly, neither the petitioners in W. P. No. 495 nor the petitioners in W. P. No. 605 produced the necessary incometax verification certificate along with their application, and consequently their applications were not considered by the Controller of Imports and Exports. 3. Before dealing with the contentions raised on behalf of the petitioners, the facts which are not in dispute may be set out. The petitioners in W. P. No. 495 are a firm doing business on a large-scale in imported oilman stores, drugs, toilet preparations etc. The firm consists of four persons. The annual income of the firm which was registered under the Indian Incometax Act, was assessed for incometax purposes, and the profits of each partner were added to his individual income, and the income-tax was assessed on the individual partners concerned. In 1952, one of the partners failed to pay the incometax assessed on Him. It was therefore not possible to obtain an incometax verification certificate. The Incometax Officer agreed to grant the necessary verification certificate if the other partners arranged for the payment of so much at least of the incometax due from the defaulting partner as was due in respect of the defaulter's income from the petitioner firm. Rut the other three partners were apparently not willing to do this. There appears to have been attempts at dissolving the firm, but nothing turns of this. In W. P. No. 605, the petitioners were assessed for the assessment years 1948-49 and 1949-50 to a tax of Rs. 13,595-12-0 out of which only a sum of Rs. 2500 was paid. But the remaining amount of tax remained unpaid. The petitioners therefore could not get the required incometax verification certificate. It was alleged that the failure on the part of the petitioners to pay was due to the fact that the Government of Burma had imposed restrictions on remittances from Burma to India, and the tax assessed included the tax on income from Burma. 4. The main contentions on behalf of the petitioners were (1) that the condition requiring the production of an Incometax certificate alone with an application for the grant of an Import licence was an unreasonable restriction on the fundamental right of the petitioners to carry on business, and (2) that the condition was really intended to enable the Government to collect the incometax due from the applicants, and was, therefore, not in the bona fide exercise of the power of the Government to impose conditions for the grant of an Import licence. 5. In support of the first contention, reliance was placed on the decision in -- 'K. Raman & Co. v. State of Madras', (A). The petitioner in that case was a firm doing retail business in yarn. The firm had a licence under the Yarn Dealers' Control Order. When the firm applied for the further renewal of the licence, the Collector refused to renew it on the sole ground that the firm had not produced the incometax and excess profits tax verification certificates, because the firm was in arrears, and Subba Rao J. held that the action of the Collector was unreasonable. This is how he dealt with the legal aspect of the case. "The petitioner is a citizen of India and has the fundamental right to carry on the trade which he has been doing. The State can only put a reasonable restriction upon his right in the interests of general public. But, in this case, the order of the Collector discloses that he is using his powers under the Yam Dealers' Control Order for the purpose of collecting the amounts duo to the Government of India. The fact that a person is in arrears of incometax is not germane to the issue of a licence under the Yarn Dealers' Control Order. It is a circumstance extraneous to the petitioner's right to carry on his business. The Incometax Act provides an adequate machinery for realising the arrears due from an assessee. I am of the view that the restriction imposed is unreasonable and is not in the interests of the general public." 6. Though we do not subscribe to everything that Subba Rao J. has said above, we are clearly of opinion that the decision was right. But there are certain circumstances present in the cases before us which were absent in that case. That case dealt with a person who had the right to carry on the business in the sale of yarn, and the licence which he had obtained was only intended for the Slate to regulate and control the conduct of that business. There was no question there of selection between different applicants. Moreover, there is no relative between payment of incometax and the carrying on of the business in yarn. As Subba Rao J., pointed out, it was a circumstance extraneous to the right of the petitioner to carry on his business. The learned Judge was,, therefore, right in holding that the restriction imposed was unreasonable and was not in the interests of the general public. Reference may well be made to another decision of a Division Bench of which one of us was a party in -- 'Vedachala Mudaliar v. Divisional Engineer Highways, Saidapet'. AIR 1935 Mad 365 (B). In that case, the Government insisted on the production of an incometax clearance certificate as a condition precedent to the Government entering into a contract with the petitioner for black-topping a public road. It was contended that the Government's insistence on the production of a clearance certificate infringed on the fundamental right of the petitioner under the Constitution. But the contention was repelled on the ground that the petitioner, though he had the fundamental right to carry on the trade or business, had no such right to insist on the Government or any other individual doing business with him. Government could decide with whom they could enter into a contract, just as a private person could. The Advocate General relied upon the statements made by the Deputy Chief Controller of Imports in the supplementary counter-affidavit filed by him in W. P. No. 605, which clearly shows that the Government had the final discretion to distribute the available resources among various applicants and in making a selection among the applicants the financial status and integrity of the applicant were very relevant considerations. The following paragraph in the supplemental affidavit sets out the policy pursued by the Government in the matter of granting an import licence ; "It is respectfully submitted that it is wrong to suggest that this is a method of collecting incometax. The Import Control authorities take no action for the collection of the tax, and in fact cannot do so. The verification certificate gives important data relating to the status of the individual, Iris prior business in the field and his reliability. In considering applications for import, the Import Control authorities have to keep within the overall monetary ceiling fixed by the Central Government allowable for the particular goods, according to Hard and Soft currency areas from which they are allowed importation. When quotas are allotted to applicants, we take into consideration cases of persons whose applications on checking the incometax verification certificates and further enquiries from the Incometax authorities show that that the facts stated by the applicants are correct and also with further reference to the prior volume of trade handled by him. With regard to Established Importers, the allocation depends upon their basic performance. When we give a quota to one person to that extent, it is denied to others. If we give quotas for a specific period to persons who have no financial status, they are unable for that reason to fulfil their contract and import the goods and the quotas get expired without being utilised. Other persons who have applied and who might have performed the contract will be kept out of the trade. Therefore, it is respectfully submitted that on the general aspect of the question, the incometax verification certificate serves a useful purpose, firstly, for checking up the history of the persons, and secondly, for judging the financial and commercial, status both of which are most relevant when quotas have to be distributed among a large number of applicants by selection of some to the exclusion of others. As mentioned above, the proper compliance with the Import Trade Control Regulations is a very important factor in the national economy. The status and respectability of a merchant is a guarantee and a reasonable ground for hoping that he will comply with these regulations." 7. In the report of the Import Control Enquiry Committee, 1950, Appendix C, Part II, item (4) we find the following explanation of the object of incometax registration: "The system of income-tax registration was introduced with a view to ensuring that the persons receiving import and export licences did not evads taxes to Government. It was noticed that a person sometimes applied for licences in 4 or 5 different names. In the absence of a system of income-tax registration, it would not have been possible for the income-tax authority to find out if the same person was trading in different names. The present system has enabled the licensing authority to ascertain the status of a firm." 8. The learned Advocate General referred us to analogous instances in which it was held that default in payment of taxes could be taken into account in making a selection between applicants for a licence or a permit. In - 'Rasipuram U. M. S. Ltd. v. State of Madras', (S) (C), it was held that deliberate and habitual default in the payment of taxes was a circumstance which could be taken into consideration in arriving at a decision as to whether the grant of a permit under the Motor Vehicles Act to a person was in the interests of the general public. In -- 'Lotus Industrials, Kallai v. State of Madras', (D), it was held that in allotting quota of yarn direct from the mills the State could make a distinction in favour of "consumer quota holders". That no one can be said to be entitled as of right to any "quota" was laid down in another decision of a Bench to which one of us was a party in - 'Srinivas v. Director of Controlled Commodities, Madras'. (E). 9. In our opinion, the contention on behalf of the petitioners is based on a wrong assumption that the petitioners have a fundamental right to obtain a quota under a licence. The refusal to grant a licence and allot a quota does not certainly prevent the petitioners from carrying on their business, If the appellants' contention should be accepted, it would mean that all the applicants for licences should be granted quotas, though the available resources are not sufficient to satisfy all the applicants. The Advocate General is right in emphasising on the fact that the Government have necessarily to make a selection from among the applicants. From this it follows that none of the applicants can be said to have a fundamental right to obtain the licence and the quota. When the Government have to make a selection, is it unreasonable that they should say that persons who are not in default in payment of tax to the Government should be preferred to defaulters? We think not. 10. There is another aspect of the matter on which also the learned Advocate General rightly laid emphasis namely, that the Incometax verification certificate is intended to satisfy the Controller that the applicant will be able to meet the financial commitments involved in the import trade, and the solvency and integrity of importers will have a bearing on international affairs foreign exchange problems and other matters of public interest. We hold that the condition requiring the production of an incometax verification certificate is not an unreasonable restriction on the petitioner's fundamental right to carry on business. 11. We see no substance in the suggestion that this condition is a device to collect arrears of incometax. When we remember that the number of applicants who are also defaulters in the payment of incometax will form a very insignificant proportion, of the total number of incometax asses-sees who have not paid the taxes due by them, it will be apparent that the object of the Government in laying down this condition was not to collect the income tax arrears. Under the Incometax Act, the Government have large powers for the purpose of collecting the tax without recourse to civil courts and it is most unlikely that this condition was imposed to help the Incometax department to collect arrears, 12. It was not argued before us that the licensing and quota system itself was as such an unreasonable restriction on the fundamental right of the petitioners to carry on business. 13. In the view we have taken above, it is not necessary to discuss the circumstances under which the petitioners in the two cases were unable to produce incometax verification certificates along with their applications for licence and quota. It may be in some cases like for instance in W. P. No. 495 of 1954 the insistence on the condition might cause hardship; but that is a matter to be taken into account by the Import and Export Controller, and that would not by itself render the condition unconstitutional or invalid. The two applications are, therefore, dismissed. No costs.

Author: Rajamannar

N. Dasai Gounder And Co., Madras vs Deputy Chief Controller Of ... on 2 May, 1955

Madras High Court

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Yusuf Khan And Others vs State Of U.P. & Another on 6 September, 2010

Allahabad High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.21105 of 2010 PRAKASH SAHANI Versus THE STATE OF BIHAR ----------- Snkumar/- (Navin Sinha,J.) 2. 25.06.2010 Heard the learned Counsel for the petitioner and the learned counsel for the State. The defence of the petitioner in a Police case under Sections 25(1-b)A, 26 and 35 of the Arms Act for recovery of a loaded country made and four cartridges is in custody since 1.7.2009. The petitioner is acknowledged to have antecedent under the Arms Act and Section 395 IPC in two more cases. Having considered the facts and circumstances of the case, let the petitioner, above named, be enlarged on bail on furnishing bail bonds of Rs. 20,000/- (Twenty thousand) with two sureties of the like amount each to the satisfaction of Sri A.V.Singh, Judicial Magistrate, lst Class, Katihar in Azamnagar P.S. Case No. 85 of 2009. Considering his antecedents both the sureties must be his father and mother respectively whose photograph and proof of residence shall be appended to the bail bonds to be verified through the local police before its final acceptance. Till that date the petitioner shall remain physically present on every date. In the event of the petitioner absconding from the trial the court below shall be at liberty to deal appropriately with the sureties also if circumstance so warrants.

Prakash Sahani vs The State Of Bihar on 25 June, 2010

Patna High Court - Orders

[Complete Act]

Central Government Act

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 9758 of 2008(J) 1. THRIKKEPPATTA TRAVELS LTD., ... Petitioner Vs 1. THE REGIONAL TRANSPORT AUTHORITY, ... Respondent 2. THE SECRETARY, RTA, WYANAD. 3. THE TATA ENGINEERING AND LOCOMOTIVE For Petitioner :SRI.VINOD VALLIKAPPAN For Respondent : No Appearance The Hon'ble MR. Justice S.SIRI JAGAN Dated :12/08/2009 O R D E R S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W. P (C) No. 9758 of 2008 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 12th August, 2009. J U D G M E N T Learned counsel for the petitioner submits that the writ petition has become infructuous. Accordingly, the writ petition is dismissed as infructuous. Sd/- S. Siri Jagan, Judge. Tds/ [True copy] P.S to Judge.

Thrikkeppatta Travels Ltd vs The Regional Transport Authority on 12 August, 2009

Kerala High Court

"Any party, who may be dissatisfied with the decision of the Taxing Officer as to any item ............ may ......... apply to a Judge in Chambers for an order to review the taxation as to the same item...... and the Judge may thereupon make such order as to him may seem just; but the taxation of the Taxing Officer shall be final and inclusive of all matters which shall not have been subjected to in manner aforesaid". S. K. Mukherjee, J. 10. I JUDGMENT Masud, J. 1. We delivered a judgment in this appeal on January 6, 1976 allowing the appeal, after hearing the Counsel for the appellant. On that day nobody appeared on behalf of the respondent. Thereafter, the matter was mentioned by the Counsel for the respondent and the said judgment and order were recalled. The facts of the case may, briefly, be stated as follows: 2. Suit No. 69 of 1963 was filed in this Court by Himangshu Sekhar Paul against Kishori Lal Paul and others. A consent decree was passed on August 21, 1964, whereby, inter alia, a special Referee was appointed to go into the accounts between the parties. On April 1, 1966, the Special Referee allowed the plaintiff to file additional statement of facts on his oral application. On May 9, 1966 a Notice of Motion was taken by M/s. J. N. Mitter and Co., on behalf of one of the defendants to set aside the above order of the Special Referee. On August 8, 1966, A. N. Sen J. set aside the order of the Special Referee and directed a formal application to be made before the Special Referee for the purpose of filing additional statement of facts. On April 26, 1969, a bill of costs in respect of this Notice of Motion dated May 9, 1966 was taxed. The Assistant Taxing Officer allowed the costs as those of the Notice of Motion as of a Chamber application. On April 29, 1969, an exception was taken before the Registrar of this Court against the said order of the Assistant Taxing Officer. On August 12, 1970, the said exception was allowed by the Registrar who held that the costs should have been allowed as those of a Notice of Motion. On September 7, 1970, a Master's Summons was taken out before R. M. Datta J. who after hearing the parties confirmed the order of the Assistant Taxing Officer. Thereafter, this appeal has been filed against the said order of R. M. Datta J. 3. Mr. Sen, Counsel for the respondent, has raised a preliminary point that this appeal is not maintainable under the Rules of this Hon'ble Court. Relying upon Kaluram Marwari v. Matilal AIR 1933 Cal 715, he has argued that there is no scope for an appeal against the order of R. M. Datta J. The learned Judge has passed the order under Chapter XXXVI Rule 72 of the Original Side Rules. Under the said Rules, according to him, a Judge can only review the taxation made by the Registrar and once the learned Judge passed the order under the said Rule, his decision is final. The Rules forming a self-contained Code, there is nothing in the Rules which would enable the party to prefer an appeal against such order of the learned Judge. He has also substantiated his argument by referring to Chapter VI Rule 15 and Chapter XXXVI Rules 70, 71 and 72 where the words "appeal" and 'review' have been used. He has also argued that in any event the appeal is not maintainable under Clause 15 of the Letters Patent inasmuch as the said Clause provides for an appeal against a final order deciding the issues between the parties. In this matter the dispute is between the Solicitor and his client and not between the original parties in the suit 4. In our view, there is no substance in the demurrer. Under Chapter XXXVI Rule 116, the Taxing Officer includes any Assistant Registrar in the Taxing Office save and except where the words "Taxing Officer" have been mentioned in certain Rules of this Court which include Rules 70, 71 and 72 in the said Chapter. In the present case, the Assistant Registrar who happens to be the Assistant Taxing Officer has decided that the costs of the application before Sen J. should be taxed as those of a Chamber application. Against the said order the Registrar as a Taxing Officer reviewed the order of the Assistant Taxing Officer under Chapter XXXVI Rules 70 and 71, The Registrar set aside the order of the Assistant Taxing Officer and held that the cost of the application should be as those of a Notice of Motion, The respondent thereafter made an application under Rule 72 of the same Chapter before the learned Judge who reviewed the order of the Registrar and set aside the order of the Registrar. But Chapter XXXVI Rule 72 does not provide that no appeal would lie against an order passed under Rule 72 or that the order made on an application under Rule 72 would be final or conclusive. The relevant provisions of the said Rules are as follows: It is clear from this Rule that the Judge may confirm or modify or set aside the order of the Taxing Officer under this Rule but it does not say that the order of the said Judge is final. This Rule only provides that there is a finality of the taxation of the Taxing Officer in respect of those items in the bill of costs which have not been objected to by any of the parties. In the instant case, there was a dispute between the appellant and the respondents as to the costs in respect of the said application before Sen I from the initial stage. 5. Nor can it be said that the order under appeal is not a "judgment" under Clause 15 of the Letters Patent, From the order of Sen J. it is clear that the learned Judge has directed that the parties would bear their own respective costs and the said order was made, admittedly, upon a Notice of Motion taken out by a defendant other than the appellant Nobody raised any objection that the said application should have been made on a Master's Summons. All the parties proceeded on the basis that an application for setting aside an order of the Taxing Officer could be made by a Notice of Motion. In fact, the formal order, as drawn up, expressly mentions the fact that the learned Judge passed his order upon a Notice of Motion. Not only the parties treated the said application as one which could be made on a Notice of Motion, the learned Judge decided that the parties would bear their respective costs as those of an application made by a Notice of Motion. The said order of Sen J. has not been challenged either. Under these circumstances, the learned fudge having made a decision that the costs of this application should be treated as those of an application by a Notice of Motion, the Assistant Taxing Officer had no jurisdiction to take a contrary view. The decision of Sen J. on the nature of application, though not expressly made, is clear and his order of costs is final and binding on the Assistant Taxing Officer, Thus, Datta J. and the Assistant Taxing Officer had no jurisdiction to make an order contrary to the order made by Sen J. It is well settled that when an order is made without jurisdiction appeal would always lie against such order. It is also contended that the present dispute is not between the original parties, and as such it cannot be a "judgment" under Clause 15 of Letters Patent. But, in my view, the meaning of the word "Parties" in Clause 15 of the Letters Patent is not restricted to the Original Parties. To decide the question whether an order under appeal is a "Judgment" it is enough if the Court is satisfied that the order under appeal involves a final determination of a lis between two parties, As stated above, by order of Datta J. it has been finally decided that the appellant is to pay costs as those of a chamber application. The result is that the appellant solicitor and not the respondent will have to pay fees personally to the Counsel briefed in application before Sen J. The dispute here is between attorney and client, who are the parties before Datta J. This contention of Mr. Sen, therefore, also fails. 6. Mr. Sen has next argued that the application before Sen J. under Rules of this Court could not be made under a Notice of Motion and as the learned Judge has not specifically decided that point the Assistant Taxing Officer has correctly exercised his jurisdiction under the Rules, In our view, this contention also cannot be accepted. Chapter VI Rule 11 expressly mentions matters which can be disposed of in Chambers by a Judge. Item No. 18 of the said Rule reads as follows: "Such other matters as are not expressly required to be disposed of in Court and which the Judge thinks fit to be heard in Chambers, and such other applications as are directed to be made in Chambers". This item makes it clear that any matter other than matters mentioned in Items Nos. 1 to 17 may also be disposed of in Chambers, if the Judge thinks fit to be heard in Chambers. In the present case, no learned Judge has directed or thought fit that the said application before Sen J. should be heard in Chambers. Reliance may be placed upon Gobinda Das Bhatter v. Pran Kumar Das (1959) 63 Cal WN 877, 882. In Appendix Z to the Rules a long list of matters or applications other than those in Chapters VI and XI have been set out which could be dealt with or made in Chambers. The appellant in his application before Sen if, has asked for the following prayers: "(e) The orders by Special Referee for filing an additional or amended state of facts by oral application on behalf of the plaintiffs may be set aside. (f) In the alternative, Special Referee do file a special report as to why the plaintiff is allowed to file the additional state of facts in the manner sought to be done and at this stage". Prayer (e) cannot be said to be one of the matters which is included in either Chapter VI Rule 11 or in Appendix Z and therefore the application before Sen J. could only be taken by a Notice of Motion under Chapter XX Rule 3, relevant portions of which read as follows: "Except where otherwise provided by Statute or prescribed by these Rules all applications, which in accordance with these Rules cannot be made in Chambers, shall be made on Motion after notice to the parties affected thereby .........." 7. Mr. Sen has drawn our attention to paragraph 21 of the petition before Sen J. which reads as follows: "The Special Referee was requested by the Counsel on behalf of the defendants to make a special report before allowing the plaintiff to alter or amend the state of facts by filing an additional state of facts on oral application but the special Referee declined to make a special report." As the Special Referee declined to make a special report, Mr. Sen has argued that under Chapter XXVI Rule 51 the said prayer (f) can only be granted in an application under Master's Summons as set out in the Rules. But Mr. Sen has overlooked the fact that Sen J. has passed the order in terms of prayer (e). Prayer (f) has been sought for as an alternative relief. Even assuming that the Special Referee has refused to make a Special Report the learned Judge has exercised his power to treat a Chamber matter as a matter to be decided by Judge in Court under Chapter VI Rule 10 of the Rules. In the instant case, the parties admittedly, by their conduct, represented to the Court that the application should be heard by a Notice of Motion. Even assuming that the said application may be treated as an application to be moved before a Judge in Chambers, Sen J. has finally adjudicated that the matter should be disposed of in Court. If the Parties were of opinion that the application should be treated as an application before a Judge in Chambers, Counsel could have asked for a Certificate that the application was a fit and a proper one where Counsel should have been briefed. In conclusion, I would like to state that I have read the judgment of my learned brother and respectfully agree with the same. 8. Lastly, Mr. Sen has urged that the application before Sen. J. was made in a proceeding under a decree or order and, as such, the said application should be treated as a Chamber application under Ch. VI R- 13. It is not necessary for me to decide the question whether the application could have been made in chambers under the said Rule, inasmuch as the learned Judge for reasons stated above disposed of the said application as an application under notice of motion and not as a chamber application. 9. I, therefore, hold that the appeal is allowed and the order of the learned Judge is set aside. The respondent shall pay costs of the appeal and the Court below to the appellant. It is certified that the application before R. M. Datta J. is a fit case for engaging a Counsel. agree that the order should be as proposed by my Lord. I also agree that the order dated January 6, 1976 by which the learned Judge set aside the order of the Registrar and restored the order of the Taxing Officer on an application made under Rule 72 of the Chapter XXXVI of the Original Side Rules, is appealable under Clause 15 of the Letters Patent. The order is a 'Judgment' because it finally determines an independent proceeding for taxing the attorney's bill of costs to which the attorney and his client are parties. Clause 15 provides that an appeal shall lie from an order of a single Judge of the High Court, not being a judgment passed in the exercise of appellate jurisdiction by a Court subject to the superintendence of the High Court and not being an order made in the exercise of revisional jurisdiction. In the present case, the order was made on an application for review under Chapter XXXVI Rule 72, and not in exercise of revisional jurisdiction. Moreover, the order of the Registrar which was reversed by the learned Judge is not an order made by a Court subject to the Superintendence of the High Court. 11. It was contended that an order made on an application under Rule 72 is final and conclusive. The Rule does not say so. It merely says that the decision of the Taxing Officer as to any item or part of any item which has not been objected to by any party before him, shall be final and conclusive. In this context reference may be made to Rule 63 of Order XXI of the Code of Civil Procedure which lays down that where an objection is preferred under Order 21 Rule 58 the party against whom an order is made may institute a suit to establish the right which he claims to the property in dispute but subject to the result of such suit, if any, the order shall be conclusive. It has been held that the language of Rule 63 bars an appeal. The provisions of Rule 72 of Chapter XXXVI have nothing in common with Rule 63 of Order XXI of the Code in language. 12. The other argument, namely, that the order is in the nature of one made under Order XLVII of the Code of Civil Procedure is equally of no substance. The legal situation spoken of in Order XLVII is a far cry from the situation which Rule 72 of Chapter XXVI envisages. The procedure prescribed for review in Order XLVII is also radically different from the procedure enjoined in Rule 72. 13. The Assistant Taxing Officer, as also the learned Judge have relied on a rule of practice, which we were told, is being followed by the Taxing Office since 1917 pursuant to the directions of Chitty and Chaudhury JJ. The practice/direction is said to be as follows: "Note by the Regr. (Mr. Hechle as Taxing Officer on 14-5-1917) I suggest that the profession should be informed that in future if applications which can be made in Chambers are made in Court the Taxing Office will in the absence of a certificate, tax the costs of the application as of a Chamber application. "I see no particular objection to the Registrar in writing to the Incorporated Law Society to remind them of what are properly Chamber matters but I think the attorneys ought to learn the Rules for themselves. I do not allow them to evade responsibility or to plead ignorance of the Rules with regard to paragraph 2 of the note (I felt that I must take it that the Court considered that the application in question was proper for disposal in court) I think that counsel should not be allowed on taxation unless there has been a special certificate to that effect. This should apply to matters which have by inadvertence been dealt with in Court though they were really Chamber matters. It is the duty of, the Counsel and Attorneys to see that the application is made in the proper place." C.W. Chitty, 16-5-17"   Chaudhury J. "I do not think it is any use to write to the incorporated Law Society. Chamber application, if made in Court, should be taxed as Chamber application unless otherwise directed by the Court. The mere fact that they are disposed of in Court sometimes, does not affect the question of taxation. I do not usually certify for Counsel in Chamber Applications. A. Chaudhury 17-5-17"    "The Taxing Office will please note and act accordingly.    J.H. Hechle 22-5-17". 14. We asked for production of the original notes but were told that they were not available. The notes are capable of meaning that an application by chamber summons, if made in Court, should be taxed as chamber application. There is no unequivocal direction given by either of the learned Judges, and certainly not by Chaudhury J., that in the absence of any specific direction by Court, the costs of a motion should be taxed as of a chamber application, if the Taxing Officer is of opinion that the application should have been made not by a notice of motion but by a chamber summons. The application was made before A. N. Sen, J. by a notice of motion. No objection was raised from any quarters either before or during the hearing. The learned Judge, by his order dated 8th August, 1966, directed that each party do bear and pay its own costs, of and incidental to the application to be, if necessary, taxed by the Taxing Officer. The order recites that the application was made by a Notice of Motion. Assuming that the application should have been properly made by chamber summons, the application must be deemed to have been treated as a motion by Sen J. In that context, we must hold that Sen J. by necessary intendment, directed that the bill of costs should be taxed as of a motion. No appeal was preferred from the order. With utmost respect, we are unable to subscribe to the proposition that the Assistant Taxing Officer, the Registrar or for that matter the learned Judge who heard the application for review under Order, Rule 72 of Ch. XXXVI of the Original Side Rules had any power or jurisdiction to direct taxation of the bill of costs in derogation of the order of Sen, J. No Rule of practice, if any such Rule exists, can invest a Taxing Officer with jurisdiction to revise by implication an order of a learned Judge of this Court. 15. An order of G. K. Mitter J. made in Hanumatmull Boid v. Federation Bank of India in Suit No. 2020 of 1947 was relied upon in support of the order of the Assistant Taxing Master. We closely looked into the judgment and order of G. K. Mitter J. and found, as did counsel on either side, that the judgment and order have no relevance to the facts of this case. 16. In these circumstances, the appeal succeeds. In future, Taxing Officers are directed to tax bills of costs according to the tenor of the Court's order. It is not for them to decide whether an application which is made by a notice of motion should have been made by chamber summons and vice versa. Their clear duty is to implement the Court's order and nothing more.

Author: Masud

Hirendra Kumar Mitter vs Sudhangshu Shekhar Paul on 21 May, 1976

Calcutta High Court

JUDGMENT Tirath S. Thakur, J. 1. This appeal was heard by a Division Bench comprising Hon'ble H.N. Tilhari and T.N. Vallinayagain, JJ. The judgment granted a certain enhancement in the amount of compensation payable to the claimants-appellants herein. As regards the rate of interest awardable on the amount of compensation, there was a difference of opinion between the Judges comprising the Bench. While Tilhari, J., held, the claimants entitled to interest at the rate of 9% p.a. from the date of the claim petition till the date of payment, Vallinayagam, J,, took a contrary view holding that the claimants were not entitled to anything more than 6% p.a. from the date of the claim petition till payment (Smt. Sanjeevini Ananda Awate and Ors. v. The Managing Director, Hiranyakeshi Sa-hakara Sakkare Karkfiane, Nippani and Ors., ILR 2000 Kar. 4861). Both the learned Judges relied upon decisions of the Supreme Court and those delivered by this Court in support of the views taken by them and eventually recommended to the Hon'ble Chief Justice to refer the issue as to the rate of interest to a Full Bench for an authoritative pronouncement. The Hon'ble Chief Justice however viewed the difference of opinion between the two Judges as a case calling for a reference to only a third Judge for resolving the conflict under Section 98(2) of the Code of Civil Procedure. The matter was accordingly placed before Hon'ble R.V. Raveendran, J., to resolve the conflict. The judgment delivered by brother Raveendran, J., which is also in Smt. Sanjeevini Ananda Awate and Ors. v. The Managing Director, Hiranyakeshi Sahakara Sakkare Karkhane, Nippani and Anr., 2002(4) Kar. L.J. 28 : 2002(2) KCCR 1353 held that the rate of interest to be awarded in motor accidents claim cases had been linked by the Supreme Court to the prevailing Bank rates. Relying upon the decision of the Supreme Court in S. Kaushnuma Begum v. The New India Assurance Company Limited, AIR 2001 SC 185 the Court observed that the rate of interest to be awarded should be normally related to the rate of interest paid by Nationalised Banks on term deposits for one year. The Court also held that the rate of interest prevalent in the Banks when the Supreme Court delivered its decision was 9% p.a. for fixed deposits for a period of one year which having been reduced in recent times, the proper rate of interest to be awarded in favour of the claimants would be 8% p.a. It is after the third Judge has expressed his opinion on the issue referred to him that the appeal has come up for disposal before us. 2. Section 98 of the Code of Civil Procedure inter alia, provides that where an appeal is heard by a Bench of two or more Judges, the appeal shall be decided in accordance with the opinion of such Judges or of the majority (if any) of such Judges. Sub-section (2) to Section 98 deals with a situation where there is no such majority, in which case the decree appealed from, shall have to be confirmed. Proviso to Sub-section (2) however goes on to provide that where the Bench hearing the appeal is comprised of two or other even number of Judges belonging to a Court consisting of more Judges than those constituting the Bench and the Judges composing the Bench differ in their opinion on a point of law, they may state the point of law upon which they differ and the appeal shall then be heard upon that point only by one or more of the other Judges. Such point shall then be decided according to the opinion of the majority (if any) of the Judges who have heard the appeal including those who first heard it. 3. The appeal in the instant case was heard by a Bench comprising two Judges. There was, as noticed earlier, a difference of opinion between the said two Judges on a question of law relating to the rate of interest to be awarded. That question was referred to a third Judge as envisaged by the proviso to Section 98(2). The third Judge has delivered bis opinion which incidentally does not entirely agree either with one or the other opinion expressed by the Judges comprising the Bench that heard the appeal initially. That is because while Tilhari, J., had awarded 9% interest, T.N. Vallinayagam, J., found 6% to be the appropriate rate at which interest could be granted. The third Judge has agreed neither with the rate granted by Tilhari, J., nor that awarded by Vallinayagam, J. His Lordship has found 8% to be the most appropriate rate to be awarded having regard to the prevailing rate of interest in the case of Bank deposits. One could perhaps say that there was no real majority opinion on the precise rate of interest that could be awarded in motor vehicle cases. A more realistic and accurate statement may however be that the view expressed by Raveendran, J., taking 8% to be the appropriate rate of interest constitutes the majority opinion at least insofar as 8% p.a. as a rate is concerned. The views expressed by Tilhari, J., and Raveendran, J., concur as regards 8% being the proper rate of interest to be awarded. Vallinayagam, J., was therefore in minority in holding that it was only 6% that could be awarded. Suffice it to say that in accordance with the provisions of Section 98 of the CPC and the majority decision of Tilhari and Raveendran, JJ., the claimants-appellants shall be entitled to interest at the rate of 8% p.a. from the date of the claim petition till deposit. M.F.A. No. 552 of 1993 shall stand disposed of accordingly leaving the parties to bear their own costs.

Author: T S Thakur

Smt. Sanjeevini Ananda Awate And ... vs The Managing Director, ... on 10 January, 2003

Karnataka High Court

,1... IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD DATED THIS THE :0?" DAY OF SEPTEMBER 4 _ THE HON'BLE MR. JUSTICE Asmmc E'YiR'ARi if If CWRIT PETITION NO. 39035 ofizocs BETWEEN: C Sri.Narasimha sfo Narayari Bhatf' .V Aged 57 years, Occ: Agriculture', A i Rio Malavalliiviiiage, _ « Taluka Yaliapiir, ~ D _ _ District Uttiara . . . Petitioner (By Si'i}'i.V Advocate) AND: vs,i@Narayaz2 Bhat, . 3 Aged' 40 years, Occ: Agriculture, _ C. R?§Malas*al1i village, . Tai'i;vk_a'Ysllapur, Distric.tUttara Kannada. C' "fire Chief Executive Officer, A 'C . Zilla Panchayat, Karwar, C Uttara Kannada District " The Assistant Execziiive Engineer, Zilla Panchayat Engineering Sub Division, Yallapur, Uttara Kangada District é

Author: Anand Byrareddy

Sri Narasimha vs Balachandra on 10 September, 2008

Karnataka High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA CR. APP (DB) No.532 of 2006 1. JAI NARAIN YADAV SON OF RAMANAND YADAV 2. SAKAL YADAV SON OF LATE NISHAN YADAV ALL RESIDENTS OF VILLAGE- PIRAUTA, P.S. ARRAH MUFFASIL, DISTRICT- BHOJPUR..... APPELLANTS Versus STATE OF BIHAR................................... RESPONDENT ----------- 7 14-02-2011 Heard learned counsel for appellant no.1 and learned counsel for the State in respect of I.A. No. 279 of 2011 through which this appellant has renewed his prayer for bail. It has been submitted that now the appellant has remained in custody for near about 5 years and 9 months and two persons gave one Bhala blow each to the deceased out of one blow on the chest is attributed to this appellant but in the facts of the case there may not be any intention to cause death. Considering the aforesaid submission, prayer for bail is allowed. During pendency of this appeal, let appellant no.1, Jai Narain Yadav be enlarged on bail on furnishing bail bond of Rs.10,000/- with two sureties of the like amount each to the satisfaction of the learned Addl. Sessions Judge, F.T.C.IV, Bhojpur at Arrah in S.T. Case No. 338/1992. ( Shiva Kirti Singh, J.) ( Gopal Prasad, J) Naresh

Jai Narain Yadav &Amp; Anr vs State Of Bihar on 14 February, 2011

Patna High Court - Orders

JUDGMENT Abhyankar, J. (1) This judgment will also dispose of one of the common points arising in this petition and in Special Civil Application No. 704 of 1964, which was heard along with the main petition at the request of the parties, and which is regarding interpretation of S. 37 and S. 38-A of the C. P. and Berar Industrial Disputes Settlement Act, 1947. (2) The petitioners in Special Civil Application No. 684 of 1964 are the elected representatives of the Assessment Inspectors employed in the Assessment Department of the City of Nagpur Corporation. They were so elected at a meeting held by the Labour Officer of the Government on 28-7-1962. After their election as such on 4th of August 1962, the petitioners gave a notice of change under S. 32 of the C. P. and Berar Industrial Disputes Settlement Act, 1947, demanding (1) that the Assessment Inspectors working in the Corporation should also be paid a motor-cycle allowance of Rs. 40 as was paid to other inspectors, and (2) that their pay-scales should be revised with effect from 1st March 1960. (3) It does not appear that even an attempt was made to hold negotiations in respect of this demand. We are surprised that in spite of the provisions of s. 32 (20, which cast on obligation on an employer to hold negotiations with the representatives of the employees concerned in respect of the demands, no attempt should have been made on behalf of respondent No. 2 to hold such negotiations. As no negotiations were at all held, it follows that there was no agreement between the parties with regard to the demands made in the notice. As the petitioners still desired a change to be effected, they forwarded a statement of the case in the prescribed form to the office of the Deputy Commissioner of Labour at Nagpur, and a copy of the same was sent to the Labour Commissioner at Bombay. The petitioners have further alleged that their statement of the case and notice in form O were scrutinized in the office of the Deputy Commissioner of Labour at Nagpur. It was pointed out to them, as a result of the scrutiny, that demand for revision of pay-scales could not be adjudicated or considered for conciliation because there was already an award by which the pay-scales of the Assessment Inspectors were fixed in 1957. This award is called the Majumdar Award and will be referred to as such whenever necessary. (4) The petitioner were called upon to correct the notice and the statement of the case for conciliation, and the necessary corrections were made by making change in respect of pay-scales on 11-10-1962. According to the practive so far prevalent, the Deputy Commissioner of Labour thereafter sent the notice in form O with the statement of the case to the Labour Commissioner whose office is at Bombay. Notice was despatched to that officer on 24-10-1962. (5) The Labour Commissioner appointed one Mr. Badiuddin as a Conciliator on 10th November 1962. The Conciliator commenced proceedings by issuing notices to the parties to appear before him. By the first notice the parties were directed to appear on 16-11-1962, but in the meanwhile a fresh date was fixed to appear on 22-11-1962 by a notice sent on 13-11-1962. On 22-11-1962 the Conciliator was absent and by mutual consent the time was further extended between the parties. The conciliation proceedings went on before the Conciliator till 11th January 1963, on which date, it appears, conciliation was not possible and the conciliation was closed. (6) Thereafter the Conciliator submitted his report to the State Government on 14th February 1963. The petitioners filed a Reference Application under S. 38-A (1) of the Act on 13th March 1963 before the State Industrial Court at Nagpur. The order which is impugned in this petitioner was passed by the State Industrial Court in this reference which was registered as Industrial Reference No. 13 of 1963. (7) At this stage, we may also state the facts in Special Civil Application No. 704 of 1964. The petitioners in this petition are also the elected representatives of the employees who are members of what is called Vidarbha Cinema Kamgar Union. They were elected at a meeting held on 20th October 1961, and they gave a notice of change to their employer viz., respondent No. 2, Vasant Talkies of Sitabudi, Nagpur, on 11-12-1961 under S. 32 (1) of the C. P. and Berar Industrial Disputes Settlement Act. Here again there was no agreement and as the petitioners still desired a change, they forwarded a notice in form O with a statement of the case on 29-1-1962 to the Deputy Commissioner of Labour at Nagpur. That officer forwarded the statement to the Labour Commissioner at Bombay on 2nd February 1962. The Labour Commissioner appointed a Conciliator on 12th February 1962/ the proceedings before the Conciliator seem to have commenced on 20th February 1962 and came to a close without any agreement having been arrived at on 30th April 1962. Thereafter the conciliator made a report to the Government on 18-5-1962 and the petitioners filed a Reference Application under S. 38-A (1) of the C. P. and Berar Industrial Disputes Settlement Act on 10th August 1962 before the State Industrial Court. That reference has been registered as Industrial Reference No. 16 of 1962 and was rejected by the State Industrial Court by its order dated 29-6-1964, out of which Special Civil Application No. 704 of 1964 arises. The ground on which this reference application was rejected was one of limitation and it is the point of limitation which is common to both these petitions. (8) In Special Civil Application No. 684 of 1964, besides objection as to limitation, the contesting respondent, namely, the City of Nagpur Corporation, raised two other objections. Their case is that the notice of change itself was not tenable because there is subsisting between the parties an award under which the terms of employment and conditions of employment have been fixed by the award, i.e., the Mujumdar Award. Under the Mujumdar Award the petitioners are allowed a vehicle allowance called a cycle allowance, and without termination of that award, the petitioners cannot ask for a change and commence proceedings for conciliation or for arbitration. On merits their contention is that the Assessment Inspectors are required to do duties which do not involve travelling over long distances, that a majority of them are required to do work within a limited and compact area not involving much journey, and therefore, the nature of duty which is prescribed for Assessment Inspectors is quite different from other Inspectors who are held eligible to draw a motor-cycle allowance. The cycle allowance which is being paid to the Assessment Inspectors is thus an adequate compensation for the travelling they have to do in discharge of their duties. (9) The State Industrial Court in Industrial Reference No. 13 of 1963 filed at the instance of the Assessment Inspectors has held (a) that the Reference application is barred by time, (b) that they have no cause of action as the matter is covered by the Mujumdar Award, and (c) that even otherwise, they cannot be held entitled to a motor-cycle allowance considering the nature of duties they have to perform. As already mentioned, the only point on which the Industrial Reference No. 16 of 1962 was rejected is that that application is barred by limitation, not having been filed within three months of the closure of the Conciliation proceedings. (10) We will first take the question of limitation and the provisions of the law arising therefrom in both these cases. Section 37 of the C. P. and Berar Industrial Disputes Settlement Act in its various sub-sections prescribes the procedure by which a proceeding for conciliation can be commenced and completed. That section is as follows; "37 (1) If no agreement is arrived at within fourteen days of the giving of the notice the party which gave the notice shall, if it still desires that the change should be effected, forward to the Labour Commissioner a full statement of the case and thereupon an industrial dispute shall be deemed to have occurred and conciliation proceedings to have commenced from the date of receipt of such statement by the Labour Commissioner. (2) Conciliation proceedings in respect of the industrial dispute shall then be held by the Chief Conciliator or by a Conciliator or by a Board of Conciliation appointed for the purpose, as may be directed by the Chief Conciliator. (3) It shall be the duty of the conciliators or the Board, as the case may be, to endeavour to bring about a settlement of the industrial dispute and for this purpose the conciliator or the Board shall enquire into the dispute and all matters affecting the merits thereof and may do all such things as he or it thinks fit for the purpopse of inducing the parties to compute and may, subject to the provisions of sub-section (7), adjourn the proceedings for any period sufficient in his or its opinion to allow the parties to arrive at a settlement. (4) If a settlement of an industrial dispute is arrived at in a conciliation proceedings, a memorandum of such settlement shall be drawn up and signed by the employer and the representative of employees; and the Conciliator or the Borad, as the case may be, shall send a report of the proceeding along with a copy of the memorandum of settlement to the Labour Commissioner and Registrar. (5) The Registrar shall record such settlement in the register of agreements and shall then publish it in such manner as may be prescribed, and the change, if any, effected by such settlement shall come into force from the date agreed upon in such settlement or where no such date is agreed upon from the date on which it is recorded in the register. Provided that where a Chief Conciliator has held the conciliation proceedings, the report and the memorandum of settlement shall be forwarded by him to the State Government. (6) If no settlement is arrives at, the Conciliator, or the Board, as the case may be, shall as soon as possible, after the close of the conciliation proceedings, send a report of the conciliation proceeding together with his or its findings and recommendations to the State Government. (7) A conciliation proceeding shall be completed within a period of four weeks: Provided that the parties to the dispute may, be mutual agreement, extended the time limit by such period as may be agreed upon between them Provided further that if there is no such agreement the State Government may extend the aforesaid period by a further period of two weeks at a time, not exceeding in any case four weeks in the aggregate. (8) The conciliation proceeding shall be deemed to have been completed when a settlement arrived at in such proceeding is registered or if no such settlement is arrived at when the report referred to in sub-section (6) is submitted to the State government or when the time limit fixed for the completion of such proceeding under sub-section (7) has expired. (9) No change shall be made in respect of an industrial matter settled under sub-section (40 within six months of the completion of the conciliation proceeding, unless the parties agree to the making of a change. (10) No change shall be made in respect of an industrial matter regarding which no settlement is arrived at until the State Industrial Court by a decision given in pursuance of an application under section 38-A sanctions the change." (11) If the conciliation proceedings do not yield or result in a settlement, then under section 38-A by its sub-section (1) either party to the proceeding may within three months of 'the completion thereof' refer the industrial dispute for arbitration to the State Industrial Court. Under sub-section (2) of section 38-A, an express power is given to the State Government, without prejudice to the other provisions of sub-section (1) of section 38-A, in case there is failure to arrive at a settlement between the parties in conciliation proceedings held by a Board of Conciliation, to refer the industrial dispute for arbitration to the State Industrial Court but again within three months of the completion of the proceedings. (12) Though a question of limitation of time within which an application for reference can be made has been raised in both these petitions before us, each petition deals with a separate aspect of that question. In Special Civil Application no. 684 of 1964, arising out of Industrial Reference No. 13 of 1963, the State Industrial Court has held that the Labour Commissioner must be taken to have received the notice in form O with statement of the case under section 37 (1) of the C. P. and Berar Industrial Disputes Settlement Act, 1947, soon after a copy of such a notice and statement was sent by the petitioners to the Labour Commissioner on 19th September 1962. this notice, which is styled by the petitioners as a copy, was alleged to have been sent by registered post on 19-9-1962. The State Industrial Court has therefore assumed that it could safely be taken that it was delivered to the Labour Commissioner in Bombay on or about 21st September 1962. After referring to a decision of an Industrial Bench of that Court in which this question seems to have been considered, the State Industrial Court observed that the conciliation would be deemed to have commenced on 21st September 1962. the period of four weeks under S. 37 (7) will last till 19th October 1962, and conciliation ought to have been completed before 19th October 1962, unless the period is shown to have been extended by mutual consent. On this basis the reference application ought to have been filed within three months from 19-10-62 and it having been filed on 13-3-1963, it was held not to be within time. (13) The State Industrial Court then considered another contention of the petitioners that the original notice in form O with the statement of the case was corrected on 11-10-1962 by the Deputy Commissioner of Labour and it was not forwarded to the Labour Commissioner at any rate till 11-10-1962. The State Industrial court observed that no evidence was led to show as to when it was forwarded and received by the Labour Commissioner. The State Industrial Court therefore assumed that if it is taken to have been forwarded on the same date i.e. on 11-10-1962, it would be reasonable to hold that it was received in Bombay on 13-10-1962, and four weeks time from 13-10-1962 would expire on 11-11-1962; but before that date a Conciliator was appointed on 10-1101962. Even though the State Industrial Court held that there was no extention of time by mutual agreement between the parties after 10-11-1962, and therefore the time fixed by section 37 (7) would expire on 11-11-1962 and the Reference Application filed on 13-3-1963 would also be beyond time even on this recknoing, at this stage we may consider the manner in which the request made by the petitioners before the State Industrial Court for an opportunity to show that infact the Labour Commissioner had received the original form O and the statement of the case sent by the Deputy Commissioner of Labour from Nagpur on 24-10-1962 was dealt with. It appears from the order itself that the petitioners wanted to show from the records of the conciliation proceedings which were requisitioned and were before the State Industrial Court that the Deputy Commissioner of Labour forwarded the notice inform O and the statement of the case on 24th October 1962 and the earliest it could have reached the Labour Commissioner was about 25th October 1962, but the learned member of the State Industrial court rejected this request on behalf of the petitioners on the ground that before the petitioners closed their case they were given every opportunity to have whatever material they wanted from the conciliation proceedings that they did not make any attempt before the closure of their case to show when the original form O was forwarded, and therefore he declined to allow them to refer to the record of conciliation proceedings to satisfy himself as to when the form in fact left the office of the Deputy Commissioner at Nagpur and reached the Labour Commissioner at Bombay. (14) We are not satisfied that the State Industrial Court has exercised its discretion in this procedural matter on judicial considerations. It is obvious that the record of the proceedings before the Conciliator was sent for and was in Court during the pendency of the Reference proceedings before the State Industrial Court. We fail to see what objection there was in the State Industrial Court satisfying itself as to when in fact the Deputy Commissioner of Labour sent the original notice in form O along with the statement of the case and to find out when it was received by the Labour Commissioner at Bombay. If these facts can be ascertained by mere reference to the record of the conciliation proceedings, the omission of the State Industrial Court to do this is wholly unjustified, and in our opinion, the proceedings, which are in the nature of industrial arbitration before the State Industrial Court under section 38-A cannot be allowed to be hampered or hedged in by such procedural technicalities which do not govern proceedings before the authority charged with industrial arbitration. There is no prohibition in the Industrial Court referring to these proceedings, and if any technical requirement of procedural law is required to be satisfied, the Industrial Court could have asked the petitioners to take a copy and fills it if at all that was necessary. But without giving such an opportunity in our opinion, the Industrial Court has denied itself access to a material obtained on record which would have shown that the original notice with a statement of he case were in fact sent by the Deputy commissioner of Labour to the Labour Commissioner at Bombay on 24-10-1962 and must have reached that office sometime after 24-10-1962. We have also sent for the records of the conciliation proceedings and we are satisfied that in fact the Deputy Commissioner of Labour sent from Nagpur the notice in form O and statement of the case on 24-10-1962 and the same records were available also before the State Industrial Court. (15) It is clear therefore that the State Industrial Court has based its decision on the question of limitation upon certain assumptions for which there is no basis on record. The State Industrial Court has observed that when original form O was given to the Deputy Commissioner of Labour, a similar form O was admittedly sent by the petitioners to the Labour Commissioner at Bombay. The actual averment in the petition is that while the original notice in form O and the statement of the case were filed before the Deputy Commissioner of Labour for being forwarded to the Labour Commissioner at Bombay, what were sent by way of abundant caution were a copy of that notice and a copy of statement of the case. There was no evidence or material before the State Industrial Court to give a finding as to when this copy reached the office of the Labour Commissioner. There is therefore no basis for the conclusion of the State Industrial Court that this copy was received at Bombay in the office of the Commissioner of Labour on 21-9-1962 on which date, it has been assumed, that the conciliation must be taken to have commenced. In our opinion, the finding of the State Industrial Court, so far as this petition is concerned ,is clearly vitiated by an error apparent on the face of the record in determining 21-9-1962 as the date on which the Labour Commissioner was found to have received the copy of the statement of the case and the notice in form O which was despatched from Nagpur on 19-9-1962. (16) The finding given on the other question by the State Industrial court also cannot be sustained, namely, as to the consequence of the statement of the case being corrected in the office of the Deputy Commissioner of Labour at Nagpur on 11-101962. That date is the date of correction of the statement. The contention of the petitioner was that the statement was not forwarded to the Labour Commissioner till that date. The State Industrial Court has observed that no evidence was led to show as to when it was forwarded thereafter to Bombay or when it was received by the Labour Commissioner at Bombay. We have already referred in this context to the prayer made on behalf of the petitioners that they should be allowed to show from the record of the proceedings before the Conciliator which were requisitioned while the Reference was pending that the notice and the statement of the case after correction were despatched to Bombay on 24-10-1962. If only the opportunity asked for by the petitioners has been conceded by the State Industrial Court that Court could have easily satisfied itself from a perusal of the proceedings before the Conciliator that the notice in form O and the corrected statement of the case were despatched by the Deputy Commissioner of Labour at Nagpur to the Labour Commissioner at Bombay on 24-10-62. This is obvious from page 3 of the note sheets of the proceedings before the Conciliator. Thus, there is again no warrant for the assumption made by the State Industrial Court that because the form was corrected on 11-10-62 it was despeatched on the same date and must have been received in Bombay by the Commissioner of Labour on 13-10-1962 and on that footing to hold that the conciliation must be deemed to have commenced on 13-10-1962. (17) We are thus satisfied that so far as commencement of conciliation within the meaning of section 37 (1) of the C. P. and Berar Industrial Disputes Settlement Act is concerned, the conciliation cannot be deemed to have commenced in Industrial Reference No. 13 of 1963 before 24-101962 and must be deemed to have commenced on some date after 24-10-1962 when the papers should have reached the Commissioner of Labour at Bombay to whom they were despactched on 24-10-1962. After the papers were received by the Labour Commissioner after 24-10-1962, he determined, as he was required to do under sub-section (2) of section 37, that the conciliation in this case shall be held by one Shri Badiuddin. This direction was given by the Labour Commissioner on 10-11-62. This is clear from the notification issued by the Deputy Commissioner of Labour, which is Ex. 3 (Annexure J) to this petition. On the same date the conciliator Shri Badiuddin issued notices to the parties to appear on 16-11-1962 to explore the possibility of conciliation. That date was altered to 28-11-1962. But even on 28-11-1962 the conciliator being absent the parties by mutual consent extended the period from time to time. Exhibit A-6 shows that Shri Badiuddin closed the conciliation proceedings on 11-1-1963, and submitted his report to the State Government as required by section 37 (6) of the Act on 14-2-1963. This is clear from the communication by the Conciliator to the Municipal Commissioner of respondent No. 2 Corporation under Ex. A-6 (Annexure M) to the petition. It is not disputed on behalf of respondent no. 2 that in case it is established that the statement of the case and the notice inform O were received by the Labour Commissioner sometime after 24-10-1962, then the Reference Application made on 13-3-1963 would be within time because it will have been filed within three months of closure of the proceedings as well as date of the report of the Conciliator to the government under section 37-(6) of this Act. (18) It is, however, contended on behalf of the contesting respondent that presentation of the statement of the case along with the notice in form O to the Deputy Commissioner of Labour must be taken as presentation to the Commissioner of Labour. there are no rules or any provision of law under which the Deputy Commissioner of Labour was authorized to receive notice in form O or statement of the case. If, however, he received it according to the practice as suggested, then he must be taken to have acted on behalf of the Commissioner of Labour and in that view of the matter the argument runs, proceedings, should be deemed to have commenced under section 37 (1) of the Act either on 19-9-1962 when the unamended or incorrect statement of the case was received, or at any rate, on 11-10-1962 when the statement of the case was corrected. We do not think it is possible to accept this contention. Under section 37 (1) a formal date of commencement of conciliation proceedings if provided for by the Legislature and that date is the date on which the statement of the case is received by the Labour Commissioner. Labour Commissioner does not include Deputy Commissioner of Labour or, for the matter of that, Assistant commissioner of Labour. It is an admitted position that there are no rules under which the powers of receiving a statement of the case under section 37 (1) have been delegated by the Commissioner either to the Deputy Commissioner of Labour or Assistant Commissioner of Labour. Until, therefore, the statement of the case actually reaches the Commissioner of Labour, the fiction that is introduced in section 37 (1) as to the date of commencement of conciliation cannot come into force and cannot be deemed to have come into force by another fiction, namely, receipt of the statement of the case by the Deputy Commissioner of Labour or Assistant Commissioner of Labour should be deemed to be receipt of the statement of the case by the Commissioner of Labour. At the most, what happens in such a case is that the Deputy Commissioner of Labour or the Assistant Commissioner of Labour lends his good offices for receiving the application which many times may contain irrelevant or unnecessary matter or material and serves as a scrutinizing authority before the statement of the case in the proper form containing only such matters as are reasonably capable of being the subject-matter of conciliation, are forwarded and received by the Commissioner of Labour. The mere fact that the office of the Deputy Commissioner of Labour, Nagpur, lends its services to commence conciliation proceedings cannot alter the fact that so far as the fictional date of commencement of conciliation is concerned, it must be determined with reference to the date of actual receipt of the statement of the case by the Labour Commissioner at Bombay and not by any other officer. It must therefore be held that in the instant case the conciliation cannot be deemed to have commenced within the keaning of section 37 (1) of the Act until the statement of the case was received by the Labour Commissioner at Bombay and that date is certainly not earlier than 24-10-1962. (19) In support of the finding of the State Industrial Court. It is urged as a limb of the same argument that under section 37 (7) a time-limit is fixed for completion of the conciliation, and there are three such limits of time prescribed by section 37 (7). They are as follows: (1) In the absence of any action by anybody, a conciliation proceeding if required to be completed within a period of four weeks. (2) The period of limitation may be extended by mutual agreement of parties, and for such extention there is no limit of time. In other words,. the parties may extend the period during which the conciliation may pend without any restriction. (3) If the parties fail to agree to extension of time for conciliation to be completed, power is given to the Provincial Government to extend the period for such conciliation initially for a period of two weeks, liable to extension by another period of two weeks, the aggregate being not more then four weeks in all. (20) The relevancy of this period within which the law requires conciliation to be completed is intimately connected with sub-section (8) of section 37, as well as interpretation of section 38A (1) of the Act. It will be seen that under section 38-A (1) a right has been given to either of the parties to the conciliation proceedings in case there is no settlement before the Conciliator to refer the industrial dispute for arbitration to the Industrial Court, and such a reference can be made unilaterally by either of the parties, if reference is made within three months of "the completion of the conciliation proceedings". One is therefore again thrown back to find out as to when conciliation proceedings are said to be completed. For this purpose, sub-section (8) of section 37 again introduces a fiction. Under that sub-section different points of time are indicated to determine when a conciliation proceeding is to be deemed to be completed. These are: (a) When settlement is arrived at in the proceedings, then the date is the date of registration of the agreement. (b) If there is not settlement, then one date is the date when the report is submitted to the Provincial Government as required by sub-section (6) of section 37 by the Conciliator. (c) The time limit fixed for completion of proceedings under sub-section (7) of section 37 i.e., either of the three points of time which are indicated, as already observed, under sub-section (7) of section 37. (21) We are concerned in this case in a contingency where there was no settlement arrived at between the parties and the case that has arisen for consideration in the petitions is as to when for the purposes of section 38A (1) it could be said that 'conciliation proceeding was completed'. (22) It is urged on behalf of the contesting respondents that sub-section (6) of section 37, which requires a report to be made by the conciliator to the Provincial Government itself does not fix any time-limit within which the Conciliator is required to make a report after the closure of the conciliation proceedings before him. It is therefore suggested that the obligation to make a reference unilaterally under section 38A (1) cannot possibly be made depend on the submission of this report by the Conciliator because neither party has any control over the time within which the report is to be made, nor are they concerned with the making of the report. There is not express provision in the law entitling either party to have a copy of the report or even notice from Conciliator that he has made a report. Thus, the only point of time so far as the parties are concerned which is relevant according to this argument, will be the notional point of completion of proceeding under sub-section (7) of section 37, and once that point is reached by expiry of four weeks period under the first contingency of by expiry of the period mutually agreed between the parties, or empiry of the time extended by Government, the moment that point is reached under any of the three contingencies, the limitation begins to run against the party which wants to make a reference under section 38A (1). The extreme logical conclusion of this reasoning is that the moment the Labour Commissioner is shown to have received the statement of the case, which is also fictional commencement of the conciliation, on calculation of four weeks from that period, he should also determine the point of time when that conciliation can be said to have been completed under the fiction created under sub-section (8) of section 37. It is on this basis really that the first finding is reached by the State Industrial Court in Industrial Reference No. 16 of 1963 when the Court held that if the statement of case could be said to have reached the Labour Commissioner on 21-9-1962, it should be deemed to have been completed on 21-10-1962, and therefore the reference made on 13-3-1963 was beyond time. If this interpretation of the various sub-sections of section 37 is correct, it will lead to the startling result that even before a Conciliator is appointed and conciliation proceedings in fact begin the conciliation is deemed to have been completed. We are not in a position to accept such an interpretation of various provisions of section 37. (23) It is true that under sub-section (7) of section 37 the Legislature has indicated the period during which the conciliation proceeding is to be completed, but the completion of conciliation proceedings itself postulates that there is a Conciliator and a proceeding, before a conciliator. Even before the appointment of a Conciliator which a Labour Commissioner is enjoined to make under sub-section (2) of section 37, it is hardly possible to hold by fiction under section 37 (1) and section 37 (8) that a conciliation proceeding could also be said to have been completed. The appointment of a Conciliator is not a formality. The Conciliator exercises important function and powers and he is enjoined with certain duties in the process of conciliation. Elaborate rules have been made empowering the conciliator to issue notices and to make every effort to bring the parties together, smooth out the differences if possible, and to make a genuine attempt to see that an agreement is arrived at if possible. This is provided in sub-section (3) of section 37 itself. This is also clear from the nature of the report that he is required to submit under sub-section (6) of section 37 in case of a failure of agreement in the conciliation proceedings. After the close of the conciliation proceedings, the Conciliator is required to send a report, together with his finding as well as recommendations to the Provincial Government. This again is not a mechanical act of simply intimating to the State Government that the Conciliation has failed. The Conciliator has to apply his mind to the nature of the controversy, the demands, the views of each party and the material that is placed before him. He has also to find whether the demands were reasonable or unreasonable and make recommendation to the Government according to his own light, in view of the evidence and facts placed before him. Thus the role of a conciliator in conciliation proceedings is important enough and not merely a step-in aid before parties reach the stage of unilateral reference provided for under section 38-A. The Conciliator acts as a confidante of each of the parties. The proceedings before him are to be held in camera, and he has to induce a certain sense of security and protection from improper use being made for the information disclosed to him by either party. The employer is required to disclose his views and other difficulties which may hamper in coming to a settlement. On the other hand, the difficulties which prompt a notice of change either by the employer or by the employee in the day-to-day working also put a responsibility upon the Conciliator when the conciliation is in progress. The Conciliator therefore fills an important office in the scheme of settlement of disputes by negotiations and collective bargaining. The Conciliator must take his duties seriously and is enjoined to do his best to avoid threat to industrial peace and to bring about amicable settlement as far as possible. We are therefore unable to accept the contention that the conciliation proceedings are required to be completed within a period of four weeks under the first provision of sub-section (7) of section 37, from the fictional date of commencement. the four weeks period must be counted from the date when the Conciliator begins to function and function effectively. Unless a Conciliator is appointed to act as such, we fail to see how the conciliation proceedings can be said to begin, though for the purpose of the fiction introduced in section 37 (1), they are deemed to have commenced the moment the notice and the statement of the case are received by the Labour Commissioner. We will presently show that the fiction is limited for a particular purpose. (24) Under section 51 of the Act the employer is prohibited from making an illegal change, and a change made before conciliation proceedings have been completed is said to be an illegal change. It is precisely for this purpose that provisions have been made in sub-section (1) of section 37 for a deemed date of commencement of conciliation and also another deemed date for completion of conciliation proceedings in sub-section (8) of section 37. In other words, the legislative mandate is that there should be no change in the status quo by either side so long as a genuine attempt is being made to bring about the desired change by mutual agreement between the parties; and both parties are prohibited from doing anything which will put in jeopardy this attempt at an agreed solution of the dispute. But we are not prepared to hold that for the purpose of calculating the period of four weeks, within which the conciliation proceedings are required to be completed, all such subsequent period which will be mutually agreed to between the parties or which may be fixed by the Court is to be counted from the fictional point of commencement of the proceedings under S. 37 (7) because at that stage the Conciliator himself is not appointed. The conciliation proceedings must mean the proceedings before a duly appointed Conciliator and unless a Conciliator is appointed the conciliation proceedings cannot possibly be said to have effectively commenced. So far as the calculation of the period provided in sub-section (7) is concerned, that period must begin only after the appointment of a Conciliator and not till then. It is not expected that a responsible office like the Labour Commissioner will make undue delay in appointing a Conciliator, a duty cast on him under sub-section (2) of section 37. A Labour Commissioner is required to be equally alive to his duties under the provisions of the Act, and we have not been shown that there has been any undue delay in this matter or any difficulty is caused because of the inordinate delay in the matter of appointment of a Conciliator. (25) But it is urged, as we have already noticed, the Legislature could not have intended to fix two points of time for calculating the period of Limitation within which an application for reference should be made by either parties under S. 38A(1). We do not see why such a provision could not have been made by the Legislature, bearing in mind the nature and purpose of the conciliation proceedings. The two points of time are (1) expiry of the period either fixed by agreement or by the Government or four weeks, and (2) submission of report by the Conciliator under sub-section (6) of Section 37. (26) It may well be that in a given case from the very inception of proceedings it may be obvious to either party that an agreement is impossible either because the demands are too high or because the attitude of one party or the other is intransigent or not amenable to any suggestion or adjustment or accommodation. In such a case a party is enabled on the expiry of the period fixed under sub-section (7) of Section 37, within three months thereof to make an application for reference under S. 38A (1). On the other hand, it may well be that the party will prefer to wait, in view of the nature of material that has come forward and the interest which the Conciliator may have taken, to find out what his findings and recommendations to the Government may be and then decide to file a reference application within three months of the making of the report. In this connection it was suggested that there is no provision for a party to the conciliation proceedings being given a copy of the report to the Government, which is treated more or less as a confidential document. We do not find any thing in any provision of the Act or the Rules to hold that this is a privileged document to which a party may not have access or that it is confidential document in the sense that a copy of the same is not to be made available to either parties. Though the conciliation proceedings are held in camera, so far as the parties themselves are concerned, they are vitally interested in the report, findings and recommendations made by the Conciliator to the Provincial Government. We therefore do not see any reason why, if a party so chooses, it should be denied to have access to a copy of the report. In fact, even in arbitration proceedings which are commenced. the report of the conciliator, who is responsible officer and who is required to give his findings and make recommendations, will have an important bearing in deciding the questions before the arbitrator. There may be many questions of fact which may be in dispute before the arbitrator on which the parties were at issue before the Conciliator, and the conciliator may have come to his own conclusion on those matters. It will certainly be a material and relevant piece of evidence being a report of a responsible officer who has devoted time and energy to find out the common ground on which one party can meet the demand of the other. From this aspect of the matter, the second point of limitation from which within three months a party can go to the Reference tribunal also seems to have been advisedly provided by the Legislature. Moreover, we are not prepared to hold in view of the language in which sub-section (8) of S. 37 is cast, that the Legislature intended that one of the points of time when the conciliation can be said to have commenced should be excluded in interpreting the provisions regarding limitation in sub-section (1) of S. 38-A of the Act. In our opinion, either party is entitled to file a Reference Application either within three months of the period calculated within three months of the period calculated under sub-section (7) or from the date when the report is submitted under sub-section (6) of S. 37. (27) In this connection the learned counsel for the petitioners has invited our attention to a few decisions which lay down the principle on which the provisions of sub-section (7) of S. 37 regarding fixation of time or period of limitation, cast a duty on a public officer, is to be interpreted with reference to the rights of parties. In. A. M. K. Bus Service v. State of Bombay, interpretation of S. 12(6) of the Industrial Disputes Act, 1947. (Central) came in for consideration. Section 12 of the Act prescribes the duties of officers and under sub-section (6) of Conciliation Officer is required to make a report under this section within 14 days of the commencement of the conciliation proceedings, or even within shorter time if a shorter time is fixed by the appropriate Government. Under S. 33 of the same Act no employer can in regard to any matter connected with the dispute alter to the prejudice of the workmen concerned in such dispute the conditions of work during the pendency of any proceeding before the conciliation officer.. The question that arose in the case was whether a conciliation proceeding could be said to be pending when Conciliator did not submit a report within the period of 14 days of the commencement of the conciliation proceedings so as to give immunity to an employer who altered the conditions of service of workmen after period of 14 days. Their Lordship held in paragraph 5 that there was no doubt that S. 12 contemplates that the report should be made and the proceedings closed within a fortnight, and if proceedings are not closed but are carried on, or if the Conciliation Officer does not make his report within 14 days he may be guilty of the breach of duty, but the law the proceedings do not automatically come to an end but only terminate under S. 20 (2) (b) of the Act which applies to all proceedings. This appeal arose out of a decision in this Court reported in The State v. Andheri-Marol-Kurla Bus Service, , and in considering the effect of the provisions of S. 12(6) of the Industrial Disputes Act which uses a peremptory word viz., "shall" requiring the officer to submit his report within 14 days, the Division Bench has observed as follows in paragraphs 6 and 7: "6. The question of construing the provisions of S. 12 presents problems which have been considered by judicial decisions on several occasions in the past. Often enough Legislature uses words like 'shall' which are mandatory in form and often enough Courts have to decide what the effect of the use of these mandatory words is in a particular provision contained in the statute. XX XX XX XX XX (7) The construction of the material clause requires the Court to take into account the intention of the Legislature. In construing this clause, we have to bear in mind the object which the Legislature had in view, the scheme which the Legislature has adopted for carrying out that object and the effect of the construction for which both the parties contend before us. In dealing with the question as to the effect of the use of imperative words, very often distinction is sought to be drawn between cases where the statute confers upon a public officer a privilege or power or where it imposes upon him an obligation or duty." Then are quoted the following words from Maxwell: "Where powers, rights or immunities are granted with a direction that certain regulations, formalities or conditions shall be complied with, it seems neither unject nor inconvenient to exact a rigorous observance of them as essential to the acquisition of the right or authority conferred, and it is therefore probable that such was the intention of the legislature. But when a public duty is imposed and the statute requires that it shall be performed in a certain manner, or within a certain time or under other specified conditions, such prescriptions may well be regarded as intended to be directory only in cases when injustice or inconvenience to others who have no control over those exercising the duty would result if such requirements were essential and imperative." (Maxwell on Interpretation of Statutes, 10th edn., p. 376). In applying this test the Division Bench further observed as follows: "Now, if we consider the scope of the statute and the object which it has inview there can be little difficulty in coming to the conclusion that the arguments based on the object and scope of the statute are in favour of the construction for which the learned Government Pleader contends. If S. 12(6) is construed in the manner which appeared in reasonable, it would lead to this unfortunate result that in a very large majority of cases conciliation efforts are bound to fail. I have already indicated that unless the nature of the industrial dispute admits of a very easy and quick solution, in a large majority of such disputes it would be necessary for a conciliation Officer to prepare the ground for mutual settlement by collecting necessary data and statistics, by arguing with the parties one against the other, and by inducing them ultimately to agree to certain terms by consent. However quick the Conciliation Officer may be and however responsive both the parties to the dispute may be, it seems very unlikely that within the statutory period of 14 days, many industrial disputes can be settled. If that is so, then the construction which makes the Conciliation Officer's work almost impossible should, we think, be avoided if it can be reasonably so done." (28) We must therefore bear in mind the purpose for which the period of conciliation is fixed by sun-section (7) of S. 37, and the point of time from which that period can be reasonably counted. the purpose for fixing notional or fictional date of commencement of conciliation and also completion of conciliation we have already indicated, and that is to ensure the status quo being maintained by both the parties so long as a genuine attempt at solution is initiated and is in progress, and until final decision is reached, that solution is not possible and no change can be effected. In this connection we may also refer to sub-section (10) of Section 37. That sub-section provides that no change shall be made in respect of an industrial matter regarding which no settlement is arrived at until the State Industrial Court by a decision given in pursuance of an application under S. 38-A sanctions the change. This sub-section necessarily postulates that if on failure of conciliation either party wants to go to an Industrial Court for reference, then the time taken for completion of the reference proceedings is also the time during which no change can be made by either party. If either party is allowed the limitation fixed for going to industrial tribunal under s. 38-A (1), then it may be possible to say that the embargo or the restriction on the right to make a change is not removed until that stage is reached even after completion of the proceedings; the Act imposes a further limitation on the rights of the parties not to effect change even during the pendency of the reference proceedings, if a reference is made by either party. All these provisions will show that the object of the Legislature in introducing a notional or fictional date as the date of commencement of conciliation, and another notional date as the date for completion of conciliation, is to maintain the status quo between the parties so as not to put in jeopardy chances of conciliation. Such provisions cannot be utilized by an interpretation which will negate the very object and will throttle the negotiations or arbitrations on failure of such negotiations. (29)It must therefore be held so far as Special Civil Application No. 684 of 1964 is concerned that the Reference could not have been rejected as the statement of the case reached the Labour Commissioner after 24-10-1962. Similarly, in Special Civil Application No. 704 of 1964 the statement of the case was forwarded to the Labour Commissioner and must have been received by him sometime after 2nd of February 1962, and though the conciliation came to a close so far as the Conciliator was concerned on 30th April 1962, the Conciliator made his report on 18-5-1962 and the reference application was filed well within time of three months of that date and must be held to be in time. Industrial Reference No. 16 of 1962 could not have therefore been ejected on the ground that the application was barred by limitation. (30) Now we shall deal with the other two contentions which arose so far as Special Civil Application No. 684 of 1964 is concerned. (31) The second objection raised by the contesting respondent in this petition is that the notice itself was untenable as the notice covers industrial matters already adjudicated upon by the Mujumdar Award. This objection is put in two ways. It is submitted that before Mr. Mujumdar there was a claim made on behalf of the employees of the Corporation like village Patwaris, market moharrirs, tax collectors etc, for getting a cycle allowance, and an issue was also framed in respect of this demand both when the original award was given and also after remand. Dealing with this demand, the finding in the award is given in paragraph 62 in the Mujumdar Award. The learned arbitrator has disposed of this demand as follows; "The Corporation employees have asked for a uniform cycle allowance of Rs. 4 per mensem for such employees as have to work outside the Corporation office and have to visit several parts of the city in the discharge of their duties. The demand is reasonable. Here, however, difficulty is experienced in the case of those employees who are provided with a cycle by the Corporation. During the course of arguments, it was suggested by the counsel for the employees that every Corporation employee who has to move in the city for Corporation work should be encouraged to purchase his own cycle and the Corporation should not provide him with a cycle. It would thus be possible for all the employees to have Rs. 4 per month as cycle allowance and there will be left no ground for complaint that while some get Rs. 4 per month as allowance, others are paid Rs. 2 or Rs. 2-8-0 as cycle allowance because the Corporation lends its cycle to them for use. In this respect, the Corporation has passed the necessary resolution in its meeting dated 6-8-1955 and this demand is more or less accepted by the Corporation. I would direct the Corporation to act according to its resolution dated 6-8-1955. There may be employees who have to move in the city and who yet have no cycles. The corporation is directed to arrange to give such an employee, of course, after taking from him the necessary security for the return of money, such advance as may be necessary for the purchase of a cycle. I give the Corporation six months time to pay such employees the necessary advance if an application is made to it and necessary security is furnished." (32) It will be seen that so far as the actual direction in the award is concerned, the Corporation is directed to act according to the resolution dated 6-8-1955. That resolution is now made available to us and a free translation of that resolution in English could be rendered thus; "Information regarding those employees who are on outside work and for whom maintenance of a cycle becomes unavoidable, and such of them as have their own bicycles, should be collected, and if any of them are excluded from monthly cycle allowance of Rs. 4, then such allowance should be given to them. This principle is accepted by the house. Similarly, those employees who have to do executive duty and are eligible for a cycle allowance, should in as great number as possible, be given cycle advance for purchasing their own cycle and should be encouraged to purchase them and should be given a cycle allowance of Rs. 4 per month." (33) It will be seen that there is no express reference to any class of Inspectors or Assessment Inspectors in the category of employees on whose behalf the demand seems to have been made. The actual reference in demand No. 6 is to employees like village patwaris, market moharrirs, tax Collectors etc. When we asked the learned counsel for the corporation i.e., respondent No. 2 to point out the objections in their written statement to this demand, it was admitted that no such objection was raised in the written statement, but it was pointed out by reference to paragraph 6 of the written statement that the demand regarding pay-scales was not tenable firstly because it was given up before the Conciliator, and also not maintainable in view of the provisions of Ss. 54 and 55 of the C. P. and Berar Industrial Disputes Settlement Act. Now, under S. 54 of the Act whenever there is an award after submission of a dispute, the employees who are parties to the dispute are bound by the award. It is not disputed that the Assessment Inspectors were parties to the dispute which was referred for adjudication by Mr. Mujumdar. But their demands were regarding pay-scales. Unless it is shown that the Assessment Inspectors have also put up a demand for any kind of vehicle allowance or for motor cycle allowance by way of transport facility or vehicle allowance, provisions of neither S. 54 nor S. 55 would come in the way of the petitioners in giving a notice of change claiming motor-cycle allowance which they claimed in this notice. We are somewhat surprised that the Industrial Court should have allowed this issue to be raised even without any pleading or objection to that effect on the part of the Corporation. But we have heard the learned counsel for the Corporation in view of the finding given by the Industrial Court, which finding has the effect of non-suiting the petitioners. Unless the demand in the earlier award covered the same field as the demand of the change in the notice under challenge, we fail to see how either the provisions or the principles of Ss. 54 and 55 can be called in aid by the respondent. It is, however, suggested that all those who were getting cycle allowance must be deemed to include the Assessment Inspectors who are undoubtedly getting cycle allowance, and though grant of cycle allowance at the current rate to Assessment Inspectors was not the subject-matter of adjudication before Mr. Mujumdar. Mr. Mujumdar should be taken to have decided that the allowance for people who are asked to work outside should be by way of cycle allowance and no change is necessary. It is difficult to accept this construction of the adjudication on this point by Mr. Mujumdar. We are also not inclined to accept the contention that merely because one kind of vehicle allowance has been granted under previous adjudication, when with change of duties, and change of circumstances, another kind of allowance comes to be claimed, such a demand can ipso facto be said to be a change in respect of the same industrial matter. In order that an adjudication in a previous award must result as an effective bar for an invitation to a fresh adjudication, the demand must cover the same field. It is only then that a claimant will be required first to terminate the award and then ask for a change by a notice. It is also doubtful whether a part of this award can be terminated by a notice by some persons affected by the award. In view of the fact that no such contention was raised in the plea we fail to see how many evidence could be led on this question. Normally, the issues which arise out of the contest between the parties as a result of pleadings or claims should be indicated with sufficient clarity to focus the attention of the parties on the points in controversy. This is a singular case in which we find that this procedure has not been followed. It has naturally resulted in all kinds of topices being introduced at the stage of evidence. It is unfair to either party to allow evidence to be led on matters on which the case of each side has not been specifically put before the Court. If the respondents wanted to raise a bar previous adjudication, they should have specifically raised an issue and attention of the parties ought to have been focussed on such contention. We are therefore not in a position to find out what exactly the objection of the respondent is to the raising of this question in the notice. If it is contended that the question of cycle allowance was adjudged in the reference before Mr. Mujumdar, no material has been placed before us to hold that the Assessment Officers had made any such demand before Mr. Mujumdar. We are not prepared to hold that demand No.6, which was confined to inferior class of employees of the Corporation should also be deemed to have included in it. Assessment Officers who are a more responsible class of employees of the Corporation as they belong to supervisory staff. merely because they have been paid the same scale of cycle allowance as those who have demanded it as indicated in demand No. 6. Mr. Pendharkar is undoubtedly right in saying that if this demand is covered by previous adjudication, full effect will have to be given to Ss. 54 and 55 and unless the petitioners were to get rid of the effect of subsistence of the award as a binding contract between the parties, a fresh demand in respect of the same matter could not be made. But in our opinion the respondents have failed to establish that any such demand on the part of the Assessment Inspectors was in issue or was adjudged in the Mujumdar Award, and therefore any contentions based on the subsistence of Mujumdar Award must fail. (34) This takes us to the decision of the State Industrial court regarding the merits of the claim. It is obvious that the State Industrial Court has devoted considerable time and energy to give the findings on issues of law and comparatively very insufficient attention seems to have been paid to determining the validity of the main demand of the petitioners regarding the motor-cycle allowance. The whole discussion is contained in the last but one paragraph of the order. In fact, the reference itself is disposed of as an order in the order sheet. One of the contentions raised by Mr. Dhabe is that there is no award in this case. Apart from the technical aspect of this contention, one should have expected a detailed consideration of the evidence and material placed before the Industrial Court before a conclusion could be reached as to the tenability or validity of the demand. (35) The petitioners' grievance was that they have to do duties more or less analogous to other Inspectors in other departments. It is an admitted position that a motor-cycle allowance is paid to Inspectors in Health Department, Market Department, Octroi Department, Education Department and also in Public Conveyance Department, but it is not paid to Inspectors in Assessment Department. One salient fact which has emerged and which is not controverted, is that all the inspectors are employed in the same grade of pay-scales, and that an Inspector in one department is transferable to any other department. This one fact must necessarily lead to the conclusion that while an Inspector who is doing a duty in the Assistant Department will have to use a cycle as a vehicle for transport and will be eligible to draw only Rs. 4 per month by way of vehicle allowance, which is a cycle allowance, when the same person is transferred to other Departments where an Inspector is entitled to draw a motor-cycle allowance. We put it to the learned counsel whether an Inspector who purchases a motor cycle when he was working in such department as an Inspector, should allow that vehicle to remain idle if he is transferred to Assessment Department and should also make available to himself a bicycle because he is eligible to draw only the cycle allowance; no satisfactory answer was available. If the Inspector in one department is liable to be transferred to another department, this involves an admission that work as an Inspector in all these Departments is more or less of the same type, involving the same kind of duty or work load. The learned member of the State Industrial Court has observed by reference to certain statements in evidence that those Inspectors who had to do current work in the Assessment Department had to visit 450 houses a month, which comes to 4 to 5 houses a day, and those who are required to do revaluation work cover an area of one-fourth of a ward each ward consisting of 1000 houses, which again comes to 4 or 5 houses a day. We do not think the whole matter could be disposed of by an arithmetical calculation of this type. The Corporation on its part has not made any specific attempt in its written statement to state specifically details of actual work required to be done by Assessment Inspectors. Much of the written statement is devoted to a denial of the allegations made by petitioners in the application. But in a proceeding like the present, for industrial adjudication in respect of a demand made by employees, something more than a strict conformity with the pleading and action at law is expected on both sides. The Corporation as employer was in the best position to disclose to the arbitrator precisely what are the duties of Assessment Inspectors as well as other Inspectors in other departments who are paid motor-cycle allowance, in order to compare and contrast the duties between the two classes of Inspectors. The petitioners have placed on record Ex. A-7 which is a list of duties which Assessment Inspectors are required to perform. It is a fairly long list and the correctness of the same has not been disputed. It is an admitted position that about 10 Inspectors in the Assessment Department are appointed as Divisional Inspectors. As Divisional Inspectors, their duties extend to more than one ward and may be about 4 wards for each Divisional Inspector. So far as those Assessment Inspectors who are allotted the work of Divisional Inspector are concerned, their duties must involve travelling over a considerably wider area than the Assessment Inspectors who are merely doing the work of revaluation or even current work. One of the witnesses examined for the Corporation, Mr. Motghare, stated that moto cycle allowance is attached to the post and is not related to the area covered a statement which runs entirely counter to the whole case of respondent Corporation that the choice of giving cycle allowance or motor cycle allowance is determined by the area which is to be covered in the course of duties by an Inspector. It is an admitted position that Market Inspectors qualify for a motor cycle allowance. We asked the learned counsel for the Corporation whether a market inspector is expected to go on the market day beyond the market area, but no satisfactory explanation or elucidation was possible from the information or material on record in this connection. The learned counsel for the Corporation referred us to duties of different types of Inspectors, or such of them as were considered by the Mujumdar Award, and one of the categories of Inspectors considered there were Market Inspectors. At page 974 of volume II of the printed Paper Book in respect of the appeal which went to the Supreme Court, is given the duty list of Market Inspectors in respect of dangerous trade, in respect of weights and measures and in charge of weekly markets. Now, a perusal of the duties of an Inspector allotted to weekly market shows that he is required to check work in connection with the holding of wholesale vegetable market, to check the licences of dalals and to check daily collection register of bazar dues. But from these duties it is not clear whether on a single day the Market Inspector is required to visit more than one weekly market. If the work is confined to the area of a single weekly market, we do not see how that work differs from the area of the Assessment Inspector whose area of operation for one day is mostly confined to a limited space as observed by the State Industrial Court. What we have stated above is only illustrative of the fact that sufficient material has not been placed before the Court by the Corporation and it was necessary for adjudication in a matter like this to call upon both the parties to give details of work done by the Assessment Inspector to find out as far as possible at least approximately, the actual area required to be covered in a single day's work, and then to compare that with the work allotted to Inspectors in other departments who have qualified for a motor-cycle allowance. It may be that after a thorough investigation another Court may come to the same conclusion as it has now, but before a demand is rejected or accepted, it is essential that all the aspects of the demand must be thoroughly investigated. (36) In an industrial adjudication it is not as if an arbitrator is restricted to the pleadings of the parties and the evidence that may be led. He is not hampered by any strict rules of evidence or pleadings, or for the matter of that, technicalities of procedure. An arbitrator is in a better position to collect information which has any bearing and relevance in determining the issues raised before the arbitrator, and these powers are required to be exercised in order that the matter raised in an industrial dispute may be satisfactorily adjudged. If after a detailed investigation it is found that a change is or is not necessary, the party against whom the award may be pronounced, may find considerable difficulty in challenging the adjudication before any other tribunal. It is only in this context when the arbitrator has fully applied his mind, considered the matter from all these aspects that the principle for which the learned counsel contended, namely reluctance of this Court to exercise extraordinary jurisdiction under Art. 226 or Art.227 of the Constitution either in re-appraising the matter or in interfering with the award, can be legitimately called in aid. If the arbitrator failed to do this duty, then it is not possible to hold that in spite of such a failure there can be no interference with the order. It is in this aspect of the matter that the contention of the petitioners that there has been no award has some force. It looks as if the matter has been treated as an issue arising in a suit between the parties and finding is given because one party has failed to establish its case as is required by the Code of Civil Procedure. We are unable to accept that this is a proper approach in an industrial adjudication. The special machinery that has been created by the law regarding industrial adjudication is intended for ensuring that all aspects of the dispute or the demands have been thoroughly investigated and considered, and then a finding is given as to the justness or tenability of the demand. With some reluctance we have come to the conclusion in this case that the order which has been challenged before us does not satisfy these tests. It is true, this Court exercising its powers under the Constitution will not substitute its own finding for that of the arbitrator, nor are we called upon by the petitioners to do this. But the petitioners can certainly show that the adjudication is not proper and all aspects of the matter have not been considered and their case has been thrown out on insufficient consideration. We must therefore hold that the finding of the State Industrial court in this case of petitioners that they are not entitled to a change in the matter of motor vehicle allowance payable to them is not satisfactorily made out and on this ground also the order of the State Industrial Court is liable to be quashed. (37) Accordingly we quash the order dated 24-3-1964 and remand the reference for a fresh decision according to law. The parties will be called upon to make detailed statements, issues will be raised and parties shall be called upon to lead evidence, documentary and oral, in respect of their respective contentions. Thereafter the matter will be decided afresh. In the circumstances, the petition in Special Civil Application No. 684 of 1964 is allowed. The petitioners will be entitled to costs. (38) The petition is Special Civil Application No. 704 of 1964 is also allowed, the order of the State Industrial Court dated 29-6-1964 is set aside and the case is remanded for a fresh decision according to law. Both the petitioners will be entitled to costs. (39) Petitions allowed.

Author: Abhyankar

Haralal Sadasheorao Bande And ... vs State Industrial Court, Nagpur ... on 23 September, 1965

Bombay High Court

ORDER S.L. Peeran, Member (J) 1. This appeal arises from Order-in-Original No. 8/2005, dated 15-2-2005 by which the demands have been confirmed by the Commissioner including imposition of penalty on the ground of allegation of clandestine removal of goods; valuation of the goods declared by them has not been accepted as normal price in terms of Section 4(1)(b) of the C.E. Act. The evidence pertaining to clandestine removal is the difference of figures shown in RG-1 Register and the Balance Sheet for the years 1994-95 to 1998-99. With regard to the allegation of valuation, there has been escalation of prices and as such the Revenue has proceeded to enhance the value on the allegation of suppression of facts. 2. The contention of the appellant is that they are paying the duty on the ex-factory price as determined by the Cost Construction Method and Provisions of 4(i)(a) of Valuation Rules (sic). They contended that the Department was aware of the fact that the assessable value of their products had been based on Cost Construction Method and the RT-12 returns were duly assessed. They pointed out that the certificates issued by the Chartered Accountant disclosed that there was revision on the higher side in the each year and that designing, drawing, etc., was done at the site, laying, jointing, commissioning, testing, etc., were done at the site after clearance and that nuts, hard crates and rings were also required at site and therefore, the said value cannot be added in the value of pipes. They also contended that the goods were not comparable and the data rate of PSC pipes cannot form the basis for determining the value of their product and there could be variation in the overhead charges, labour charges, etc., from manufacturer to manufacturer. They contended that escalation charges were not for manufacturing activity alone but for other items of work not connected with manufacture of PSC pipes. They also contested the allegation that figures shown in the Balance Sheet should not be the basis for ascertaining the allegation of clandestine removal. They also pleaded to treat the values cum-duty and grant them the benefit of time-bar. As the facts were known to the Department, there was no suppression or misdeclaration of facts and therefore, penalty and interest is not leviable. However, the Commissioner has rejected all their pleas by upholding the charges and confirming the demands and has imposed penalties. 3. The learned Counsel submitted that in an identical matter of their competitor industry, similar allegations have been raised pertaining to allegation of clandestine removal of pipes and non-accountable in RG1 Register and the figures shown in the Balance Sheet were taken to show that there was clandestine removal. In that case also the valuation had been revised. He submits that this Bench after due consideration in the case of Karnataka Cement Pipes Factory v. CCE by Final Order Nos. 757 and 758/2005, dated 20-10-2005 2006 (206) E.L.T. 215 (Tribunal) disagreed with the assessee's contention pertaining to the escalation charges not to be added in the assessable value. The Tribunal set aside the demands on allegation of clandestine removal based solely on the figures shown in the Balance Sheet in the light of several judgments of the Tribunal. The Tribunal also remanded the matter to grant the benefit of cum-duty and rework out the same. The learned Counsel submits that in this case, they are contesting the confirmation of duty on larger period, as all the details have been disclosed to the Department. Therefore, he submits that the benefit of the Final Order Nos. 757 and 758/2005, dated 20-10-2005 2006 (206) E.L.T. 215 (Tribunal) rendered in the case of Karnataka Cement Pipes Factory be granted to them. 4. The learned JCDR after due perusal of the records contended that the escalation charges are required to be added in the assessable value and submitted that the matter could be remanded for de novo with regard to the prayer to treat the assessment as cum-duty and with regard to the valuation, time-bar and penalty. He contended that the Tribunal in the case of Karnataka Cement Pipes Factory have set aside the demands on the allegation of clandestine removal solely based on the figures shown in the balance sheet. 5. On a careful consideration and perusal of the judgments rendered in the case of Karnataka Cement Pipes Factory by Final Order Nos. 757-758/05, dated 20-10-2005 2006 (206) E.L.T. 215 (Tribunal). (sic) It is seen that the Tribunal has set aside the demands confirmed on the allegation of clandestine removal solely on the basis of the higher figures shown in the Balance Sheet. The Tribunal has upheld the allegation of addition of escalation charges. The Final Order has also held that the demands have to be restricted for the period within time, as there was no suppression of facts with an intention to evade duty. As the issue is common and same pertaining to like industry, therefore this Bench is required to follow its Order cited supra. Respectfully following the same, the demands confirmed on allegation of clandestine removal solely based on the figures shown in the Balance Sheet is set aside. The inclusion of escalation charges is confirmed. The other issues, that is with regard to claim of deduction on the ground of the price being cum-duty, valuation, time-bar and penalty are set aside and remanded to Commissioner for de novo consideration. The Commissioner shall examine the issue on these points by granting an opportunity of hearing to the appellants and follow the ratio of the judgments that would be referred by the assessee and grant the benefit, if any, as per law. This issue is remanded on this ground alone for de novo consideration. The Commissioner shall re-determine the issue within four months on receipt of this order. (Operative portion of this Order was pronounced in open Court on conclusion of hearing)

S. Peter vs Commissioner Of C. Ex. on 21 June, 2006

Customs, Excise and Gold Tribunal - Bangalore

CENTRAL INFORMATION COMMISSION (Hearing at UT Chandigarh) File No. CIC/LS/C/2009/000083 Complainant : Shri P.C. Wadhwa Public Authority : Punjab University, Chandigarh (through Shri Vikram Nayyar, Finance and Development Officer (PIO) & Shri Dharam Pal, Dy. Registrar (RTI)) Date of Hearing : 19.1.2010 Date of Decision : 19.1.2010 FACTS As per the appeal memo dated 19.11.2008 filed before the Commission, the salient facts in this case are as follows. The complainant had sent a cheque of Rs. 1,06,000/- to the Registrar of Punjab University for institution of scholarship called "P.C. Wadhwa Scholarship" of Rs. 500/- per month. The scholarship was to start from the acadmic year 2006-07. As per his intention, the amount of Rs. 6000/- was for the said scholarship for academic year 2006- 07 and Rs. 1 lakhs was required to be put in fixed deposit account and the scholarship was to be provided in the subsequent years out of the interest accruing on this deposit. However, as no scholarship was established, vide letter dated 17.3.2008 addressed to the Vice Chancellor, Punjab University, Shri Wadhwa had requested for refund of the said amount which was declined by the University in the light of the decision dated 29.7.2008 of the Syndicate. It is in this connection that vide his RTI application dated 21.8.2008, the complainant had requested for information on the following 03 paras :- "(i) Copy of any document on record in the O/o Vice Chancellor/Registrar, Punjab University, Chandigarh bearing my signature and purporting to make any donation by me for Institution of Endowement for the award of 'P.C. Wadhwa Scholarship'; (ii) Copy of the Agenda Item pertaining to the said Scholarship placed before the Syndicate in its Meeting held on 29.7.2008; & (iii) Copy of para 8 of Minutes of the said Meeting of the Syndicate held on 29.7.2008." 2. Advisor (Finance) (PIO) vide letter dated 22.9.2008 had supplied the following documents to the complainant :- (i) Request letter for the institution of a Scholarship by the name 'P.C. Wadhwa Scholarship' bearing your signature with a cheque of Rs. 1,06,000/-. (ii) Agenda Item 8 (Syndicate) alongwith office note regarding an amount of Rs. 1,06,000/- be refunded. (iii) Minutes of the Syndicate (dated 29.7.2008) para 8. 3. Dissatisfied with the response, Shri Wadhwa has filed the present complaint before the Commission. 4. Heard on 19.1.2010 at UT Guest House, Chandigarh. Shri Wadhwa is present along with Advocate Wadhera. The public authority is represented by the officers named above. Shri Nayyar would submit that not only the requisite information has been provided to the complainant but also an amount of 1,06,000/- along with interest thereon since refunded to him. Shri Wadhwa, however, is not fully satisfied with the response of the University. He would submit that the University has not informed him till date as to how the amount of Rs. 1,06,000/- sent to the University was treated as 'donation', even when he had made a clear stipulation that it was meant for institution of scholarship in his name. According to him, this has caused him mental agony and distress and he would like the University to realize its mistake. 5. To this, Shri Nayyar would respond that the decision of the Syndicate was communicated to the appellant wherein the amount remitted by Shri Wadhwa was treated as 'donation'. He would also reiterate that not only the entire amount has since been refunded but also required documents supplied to Shri Wadhwa. 6. This University appears to be in error but it has made amends. Hence, the matter does not call for any orders from the Commission and is closed. Sd/- (M.L. Sharma) Central Information Commissioner Authenticated true copy. Additional copies of orders shall be supplied against application and payment of the charges, prescribed under the Act, to the CPIO of this Commission. (K.L. Das) Assistant Registrar Address of parties :- 1. Shri Vikram Nayyar Finance and Development Officer (PIO), Punjab University, Chandigarh-160014 2. Shri P.C. Wadhwa Ananda Kutir, 100, Sector-28A, Chandigarh-160002

Shri P.C. Wadhwa vs Punjab University, Chandigarh on 19 January, 2010

Central Information Commission

JUDGMENT E. Padmanabhan, J. 1. The above Second Appeal has been preferred by the defendant in O.S. No: 6586 of 1989 on the file of the IV Assistant Judge, City Civil Court, Madras challenging the judgement and decree dated 22.1.1991 made in O.S. No. 6586 of 1989 on the file of the IV Assistant Judge, City Civil Court, Madras as confirmed by the judgement and decree dated 27.11.1991 made in A.S. No. 252 of 1991 on the file of the Additional Judge, City Civil Court, Madras. 2. Pending the appeal, the sole respondent-plaintiff passed away and respondents 2 to 7 were brought on record as his legal representatives by order dated 19.8.2002 made in CMP. No. 6125 to 6127 of 2001. 3. Heard Mr. A. Palaniappan, for Mr. M. Devendran, for the appellant and Mr. J.R.K. Bhavanantham, learned counsel appearing for the respondent. The parties will be referred as arrayed before the trial court for convenience. 4. The deceased first respondent instituted the suit O.S. No. 6586 of 1989 for declaration of title and permanent injunction besides other consequential reliefs. After contest the learned trial court on consideration of the oral and documentary evidence let in by either side decreed the suit granting the relief of declaration of title as well as relief of injunction and other consequential reliefs. The defendant being aggrieved by the said judgement and decree of the trial court dated 22.1.1991. preferred A.S. No. 252 of 1991 on the file of the I Additional City Civil Judge, Madras. The first appellate court after consideration of oral and documentary evidence dismissed the appeal by its judgement and decree dated 27.11.1991. Being aggrieved, the present second appeal has been preferred by the defendant in the suit. 5. At the time of admission, the following substantial questions of law were framed:- (i) Whether the courts below are right in the view they took that Ex.A.1 dated 18.11.19868 executed by Lakshmi Ammal in favour of the plaintiff is true and valid? (ii) Whether the courts below were right in their conclusions that despite the grant of probate of the ill dated 11.6.1984 in O.P. No. 474 of 1986, it will be null and void and also not binding on the plaintiff? 6. It is essential to refer to the facts briefly. The suit came to be presented on 5.7.1989. According to the plaintiff the suit property originally belonged to Alamelu Ammal from whom late Lakshmi Ammal purchased the same with her separate funds on 29.6.1935 in and by a registered document of sale. The said Lakshmi Ammal constructed a house and was in possession and enjoyment of the same. The said Laksmi Ammal while in sound disposing state of mind on her own on 18.11.1968 executed a deed of settlement settling the suit property and handed over possession of the B Schedule property to the plaintiff. According to the settlement deed the said Lakshmi Ammal has to enjoy the property during her life time and vested reminder to go to the plaintiff. On 6.5.1983 the said Lakshmi Ammal passed away. After the death of Lakshmi Ammal there has been mutuation of patta and taxation in favour of the plaintiff and he is in possession of the same. It was claimed that the first defendant's father-in-law Munusamy Mudaliar executed a Will on 11.2.1974 and the defendant claimed the same under the pretext of a Will. The said Munusamy Mudaliar is the brother of Duraisamy Mudaliar, who married the said Lakshmi Ammal. The said Will is not genuine. Munusamy mudaliar passed away on 20.9.1984. The defendant has probated the Will executed by Munusamy Mudaliar by instituting O.P. No. 474 of 1986. The said Will of Munusamymudaliar is a brought up document and for more than 60 years there was no relationship between Duraisamy Mudaliar and Munusamy Mudaliar and at any rate Mnusamy Mudaliar has no right at all over the property and he cannot execute a Will. The application moved by the plaintiff on the original side of this court was disposed of with a direction that the plaintiff has to seek appropriate relief before the competent court. The said Will is not binding on the plaintiff and hence the present suit. 7. The respondent defendant filed a written statement pleading that Duraisamy Mudaliar and Munusamy Mudaliar were members of the undivided Hindu joint family, that Duraisamy Mudaliar has no issues, but Munusamy Mudaliar has seven sons, that out of the seven two of them passed away and five of them are alive, that Munusamy Mudaliar has given his savings to the Manager Duraisamy Mudaliar, that Duraisamy Mudaliar from the joint family income purchased the suit property in the name of his wife Lakshmi Ammal for the benefit of the joint family, that with the funds of the joint family the roof of the building was covered, that Lakshmi Ammal has no source or income to purchase, that after the death of Duraisamy Mudalirar in the year 1962 Munusamy Mudaliar and Lakshmi Ammal were jointly enjoying the suit property, that Lakshmi Ammal died on 6.5.1983, that the plaintiff is the sister's son of the said Lakshmi Ammal, that the plaintiff prevented the defendant from paying rent through Munusamy Mudaliar, that Munusamy Mudaliar caused a notice through his Advocate to the plaintiff on 7.5.1983, that on 19.5.1983, the plaintiff sent a reply containing false averments besides disclosing the settlement deed dated 18.11.1968, that the settlement deed is not a true document, that the settlement deed will not confer any right or title, that the settlement deed is a fabricated and brought up document, that Lakshmi Ammal executed the alleged will under vitiating circumstances of threat, coercion and against her will, that Munusamy Mudaliar filed O.P. No. 89 of 1984, pending the said O.P., Munusamy Mudaliar died, that the present defendant substituted himself in the place of Munusamy Mudaliar, that the defendant applied for probate to the High Court and probate was granted in his favour, that the property was transferred in the defendants name, that application to set aside the probate/letters of administration moved by the plaintiff was dismissed, that in terms of the Probate already granted the defendant is entitled to the suit property exclusively and that the suit is liable to be dismissed. 8. On the said pleadings the trial court framed the following six issues: (i) Whether the plaintiff is entitled to the relief of declaration prayed or? (ii) Whether the plaintiff is entitled to the relief of injunction? (iii )Whether the defendant has prescribed title by adverse possession? (iv) Whether the suit is barred by res judicata? (v) Whether the suit is maintainable? (vi) To what relief if any the plaintiff is entitled to? 9. The plaintiff examined three witnesses and marked Exs.A.1 to A.28 while the defendant examined two witnesses and marked Exs.B.1 to B.24. After a detailed consideration of oral and documentary evidence the trial court recorded a finding that the settlement deed executed by Lakshmi Ammal father of the plaintiff is true, that the defendant has not acquired any right in the suit property and consequently granted the relief of declaration as well as injunction as prayed for. The trial court decreed the suit with cost. 10. The defendant preferred he first appeal and the first appellate court framed the following points for consideration:- (i) Whether Lakshmi Ammal purchased the suit property under sale deed dated 29.6.1935 for the benefit of the joint family members consisting of Duraisamy Mudaliar, his brother Munusamy Mudaliar and whether the suit property belong to Lakshmi Ammal or the joint family of Duraisamy Mudaliar and Munusamy Mudaliar? (ii) Whether the settlement deed dated 18.11.1958 was obtained by fraud, undue influence and coercion by the plaintiff from Lakshmi Ammal as alleged in paras 18 and 28 of the written statement? (iii) Whether the Will dated 11.6.1984 executed by Munusamy Mudaliar in favour of the defendant is binding on the plaintiff? (iv) To what relief if any the appellant is entitled to? 11. All the points were answered against the the defendant appellant and the first appellate court while deciding all the four points in favour of the plaintiff, dismissed the appeal and confirmed the judgment and decree of the trial court by its judgment dated 27th November 1999. 12. Mr. Palaniappan, learned counsel appearing for the appellant challenged the findings recorded by the two courts below, despite the fact that the findings being concurrent and the two courts have considered the evidence in its entirety and findings recorded being balanced. The two substantial questions of law framed at the time of admission was pressed apart from contending that there are clinching materials which would militate against the respondent-plaintiff. Mr. Palaniappan, learned counsel took the court through the pleadings, oral and documentary evidence as well and made his submissions. 13. The following points arise for consideration in this appeal:- (i) Whether Lakshmi Ammal was the owner of the property or whether she is a name lender holding the property for the benefit of the alleged joint family? (ii) Whether the acquisition of property by Lakshmi Ammal is for the benefit of the joint family? and whether she was holding the property benami for the members of the joint family? (iii)Whether the settlement deed Ex.A.1 dated 18.11.1968 is true, valid and confer valid title on the plaintiff? (iv) Whether the grant of Probate of the alleged Will dated 11.6.1984 in O.P.NO:474 of 1986 by the testator confers any right on the defendant and takes away the plaintiff's title and interest? (v) Whether any right has accrued to the testator of the Will dated 11.6.1984 and whether he could bequeath the suit property in favour of the defendant? (vi) To what relief if any? 14. It has to be pointed out here and now that the plea of benami has not been raised specifically nor any issue has been framed by the two courts below in this respect. It is also to be pointed out that neither there is a specific pleading nor there is an issue with respect to this material point before the two courts below and the appellant/defendant seeks to raise a new contention at the stage of second appeal. Sitting in Second Appeal, this court will not be justified in permitting the appellant to raise a new pleas for the first time in the second appeal and such a new plea cannot be raised for the first time in this second appeal. 15. Taking up the first two points namely Whether Lakshmi Ammal was the owner of the property or whether she is a name lender holding the property for the benefit of the alleged joint family?, here and now it has to be pointed out that there is no specific plea in this respect. But a vague plea has been set out and on that basis the learned counsel for the appellant seeks to advance this contention. Lakshmi Ammal purchased the property on 29.6.1935 under Ex.A.2. Lakshmi Ammal's husband Duraisamy Mudaliar passed away during the year 1962. Lakshmi Ammal passed away on 6.5.1983. Munusamy Mudaliar, brother of Duraisamy Mudaliar also passed away on 20th September, 1984. The defendant in the suit is the son-in-law of the said Duraisamy Mudaliar while the plaintiff in the suit is sister's son of Lakshmi Ammal. There is no dispute with respect to the above relationship. 16. Though it was contended that Lakshmi Ammal has no wherewithal to purchase the suit property during the year 1935 under Ex.A.2, equally there is nothing to show that the funds for the purchase under Ex.A.2 was provided by Munusamy Mudaliar and Duraisamy Mudaliar. No evidence has been placed before the court below to show that funds were available or provided or any asset of the joint family nucleus or members was utilised for the purchase under Ex.A.2 in the name of Lakshmi Ammal. Further, there is nothing to show that there was joint family assets on the crucial date or at or about the time when Ex.A.2 purchase was made. Munusamy Mudaliar under Ex.A.18 issued a notice to Manickavelu through his Advocate. In that there is not even a whisper about the purchase. The claim that Munusamy Mudaliar and Duraisamy Mudaliar provided funds for the purchase of the suit property in the name of Lakshmi Ammal has not been established, nor there is any claim that it is a joint family property, nor there is even an indication that the property has always been treated as joint family property. In the said notice Ex.A.18 on the other hand Munusamy Mudaliar admitted that the suit property belongs to Lakshmi Ammal and such a notice has been issued through the counsel after proper advice. The said notice is fatal to the plea of benami or that the property was purchased in the name of Lakshmi Ammal out of the money provided by the joint family or for the two brothers namely Duraisamy Mudaliar and Munusamy Mudaliar or that the deceased Lakshmi Ammal was holding the property for the benefit of the family as a benami. 17. Lakshmi Ammal purchased the property under Ex.A.2 on 29.6.1935. The said Lakshmi Ammal during her life time on 22.4.1946 under Ex.A.3 mortgaged the property and thus she has asserted her title to the property. In Ex.A.3 mortgage deed, Lakshmi Ammal asserted that it is her property. It is true that in the said document Ex.A.3, her husband Duraisamy Mudaliar was a party. But the recital in Ex.A.3 would show that the said Lakshmi Ammal has asserted her title to the suit property. 18. That apart, after the death of Duraisamy Mudaliar, during the year 1962, and till the death of Lakshmi Ammal at no point of time, Munusamy Mudaliar had chosen to claim or assert or put forward any claim in respect of the suit property as one purchased out of the joint family funds or held by Lakshmi Ammal as benami or that he was having a share in the property. Apart from the first mortgage Ex.A.3, the said Lakshmi Ammal also executed mortgages Exs.A.4 and A.6 respectively dated 2.6.1953 and 22.4.1961, wherein also she claimed exclusive title and mortgaged the property and to those mortgages her husband stood as a joint executant and he has assured payment. 19. Ex.A.11 would show that the property tax demand stands in the name of Lakshmi Ammal. When there is no evidence to the contra, there is nothing to show that either Duraisamy Mudaliar or Munusamy Mudaliar have provided funds. Further, there is no plea as to why the property was purchased in the name of Lakshmi Ammal or what is the motive behind such purchase, much less, benami purchase on the material point of time. On a consideration of the above facts, the two courts below rightly negatived such a plea and as well as this court holds that the suit property is the separate property of Lakshmi Ammal and she is the exclusive owner. Neither Duraisamy Mudaliar, nor Munusamy Mudaliar could claim any interest nor they have succeeded in establishing the plea of benami purchase. The first point is answered in favour of the plaintiff and against the defendant. 20. Taking up the next point, namely, whether Lakshmi Ammal is the owner of the suit property who executed Ex.A.1 Settlement Deed and whether it is a true and valid document, it is to be pointed out that at no point of time it has been pleaded by the defendant that Lakshmi Ammal never executed Ex.A.1 Settlement Deed and there is no specific denial in this respect. The plea of the defendant in this respect is a vague plea. There is no plea that Lakshmi Ammal has not affixed her mark on Ex.A.1. In the absence of such a plea, it is sufficient to hold that it is proved that Lakshmi Ammal has executed Ex.A.1 settlement deed. The defendant also pleaded that Ex.A.1 is vitiated by fraud, undue influence and other vitiating circumstances. But there is no evidence to sustain such a plea. What has been pleaded by the defendant is the settlement deed Ex.A.1 dated 18.11.1968 is fictitious and a fraudulent document and that it was never intended to be given effect to or acted upon. It was further stated that Lakshmi Ammal was a feeble minded person and she was not in possession of full mental faculty even to sign. In this respect, the two courts have recorded a concurrent finding that Lakshmi Ammal executed the settlement deed on her own volition with full knowledge and conscious and the two courts below negatived the plea of fraud or undue influence or other vitiating circumstances. This court was taken through the evidence by the learned counsel for the appellant and this court has to point out that the defendant has miserably failed to establish such a plea and the plaintiff has established that Lakshmi Ammal has executed the settlement deed validly. 21. The plea that the settlement deed came into being by fraud, undue influence, etc, has not at all been established and the defendant who has put forward such a plea has failed to discharge the burden in this respect. On the other hand, the plaintiff has established that it is Lakshmi Ammal who executed Ex.A.1 settlement deed. 22. P.W.2 Sivasankaran deposed about the execution of the settlement deed by the deceased Lakshmi Ammal. In para 14, the learned First Appellate Judge rightly extracted the very deposition both chief and cross examination as well as re-examination and on a consideration of the oral evidence recorded a finding and rightly too that Ex.A.1 settlement deed has been executed by Lakshmi Ammal while in a sound disposing state of mind and it is a true document and is not vitiated by fraud, indue influence or other vitiating circumstances. 23. On the facts of the case, it is clear that the settlement has been duly executed by the deceased Lakshmi Ammal and attested by two witnesses and she has presented the same before the Registrar for registration and she has been identified as well. The evidence let in by plaintiff has been accepted in this respect. No exception could be taken to the findings. Hence the hair splitting argument that there is no valid execution, on the facts of the case, cannot be sustained. 24. The findings recorded by the two courts below in respect of the settlement deed are concurrent findings. The learned counsel for the appellant is unable to point out any perversity or omission in the appreciation of evidence in this respect. Siting in Second Appeal, this court will not be justified in re-appreciating the evidence. That apart, the very deposition would show that the findings recorded by the two courts below are balanced finding, supported by reasons and no interference is called for. Therefore the plaintiff under Ex.A.1, settlement deed has valid title to the suit property. 25. Taking up the 3rd and 4th points, when once the settlement is held to be true and proved it follows automatically that the plaintiff is the exclusive owner and the settlement having been acted upon the plaintiffs title cannot be divested by the alleged will. It is true that the defendant applied for Probate in O.P. No. 474 of 1986 and a Probate was granted. But the plaintiff not being a party to the Probate proceedings he is not estopped or barred from seeking for declaration of title to the suit property by virtue of a settlement anterior in point of time. 26. It is well settled in law that grant of Probate would not mean a title of either the executor or the testator is established or substantiated. In fact the plaintiff applied on the Original Side of this Court for revocation. But this Court rejected the said application as not maintainable and thereafter the present suit has been filed seeking for declaration of title and for other consequential reliefs. 27. The leaned counsel for the plaintiff rightly relied upon the pronouncement of the Supreme Court in Elizabeth Antony Vs. Michael Charles John where the scope of probate proceeding was considered and the Apex Court held thus:- "10. The learned counsel however, lastly submitted that the petitioner in spite of having substantial interest in the estate is losing her right to prove that the alleged Will by Miss Zoe Enid Browne (sic) is not a genuine one and that it is a fictitious one. We must point out that by granting a probate, the court is not deciding the disputes to the title. Even with regard to a probate granted, it can be revoked as provided under Sec. 263 of the Act in any one of the cases mentioned therein. But the learned counsel for the petitioner submits that the findings of the Sub Court and the High Court regarding the caveatable interest will come in the petitioner's way in seeking revocation of the grant of probate. It is needles to say that the findings regarding the caveatable interests of the petitioner have a limited effect and are relevant only to the extent of granting of probate. But they cannot deprive his right, if he has any to invoke Sec.263 of the Act it is up to the petitioner to satisfy the Court." 28. In Rukmani Devi Vs. Narendra Lal , and Chiranjilal Shrilal Goenka Vs. Jasjit Singh, , the Apex Court considered identical situation and held that grant of probate would mean that the court was satisfied about the execution of the Will by the testator, the value of the suit property for which the probate is applied for and that does not establish the title of the testator and it follows that if a testator has no title his executing the will on the person will have no consequence at all and a right which has accrued to the plaintiff by executing a settlement deed cannot be taken away by the will by a stranger to the suit property. 29. In Ghulam Qadir Vs. Special Tribunal and others, , their Lordships of the Supreme Court held that grant of probate does not decide question of title or of the existence of the property mentioned in the Will. The Apex Court in this respect held that grant of probate establishes as to the appointment of the executor and a valid execution of the Will and it does not establish more than the factum of Will as Probate Court does not decide the question of title or of the existence of the property mentioned therein. The Apex Court in this respect held thus:- "62. Learned counsel appearing for the appellant referred to the judgements of this court reported in Rukmani Devi V. Narendra Lal Gupta and Chiranjilal Shrilal Goenka Vs. Jasjit Singh to urge that the probate granted in favour of the appellant by a competent court of jurisdiction is conclusive of the validity of the will unless it is revoked and no evidence can be admitted to impeach it except in proceedings taken for revoking the probate. There cannot be any dispute to the legal proposition that the grant of probate establishes conclusively as to the appointment of the executor and the valid execution of the will. However, it does not establish more than the factum of the will as probate court does not decide question of title or of the existence of the property mentioned therein. If despite admitting the execution of the will and issuance of the probate, a question arises as to its effect on the property of another person which is likely to be affected, nothing prevents the authorities under the Act to examine the Will or the probate to that extent......." 30. The two courts below concurrently and rightly recorded a finding that alleged will, will not confer any title on the defendant. In fact the application taken out by the plaintiff to revoke the order passed in O.P. No. 474 of 1986 and the said Application has been disposed of holding that the plaintiff herein has no coveatable interest and not being one of the heirs of Munusamy Mudaliar he cannot seek to have the probate revoked and his remedy is elsewhere. Munusamy Mudaliar has no right to execute the Will, nor he could dispose of the suit property or deal with the suit property as he was not the owner at any point of time and the property was the exclusive property of Lakshmi Ammal. Hence the Probate proceedings are of no consequence and that will not in any manner divest the right of the plaintiff in the suit property. When once it is proved that Lakshmi Ammal executed settlement deed in favour of the plaintiff, it follows automatically that Munusamy Mudaliar has no right to execute the Will or bequeath the property in favour of the defendant. The Probate proceedings will neither constitute res judicata nor the plaintiff is estopped from instituting the present suit. In the circumstances, the next two points are also answered against the defendant and in favour of the plaintiff. 31. The two courts below concurrently negatived the defendant's plea and sustained the claim of the plaintiff. On the 4th point it follows automatically that the testator of the Will dated 11.6.1984 has no right, nor authority to execute a Will or bequeath the property in favour of the defendant as he was never a owner of the property nor he has any interest in the suit property. Hence, the 4th point is also answered against the defendant and in favour of the appellant. 32. While discussing in detail the matter in respect of the first two points, this court as well as the two courts below concurrently taken the view that Lakshmi Ammal was the owner and she was not a benami or name lender for the joint family of Munusamy Mudaliar and Duraisamy Mdaliar, nor there is any proof to show that any portion of the joint family asset has been utilised for the purchase of the property by Lakshmi Ammal, nor there is any material to show that the joint family had any asset or funds. No motive at all has been suggested, nor been established and therefore the plea of benami also has to fail. When the suit property has been purchased by Lakshmi Ammal not out of jointly family funds nor she was holding property benami for the purpose of the joint family, nor the joint family had at any point of time asserted any right over the suit property the plea of benami has to fail. Hence this 5th point is also answered against the appellant and in favour of the respondent. 33. In this respect also the two courts concurrently recorded a finding and no illegality could be pointed out, nor made out by the counsel for the appellant though he had argued the appeal verbose with all emphasis, but he has miserably failed to persuade this court to interfere. Being a second appeal and when the plaintiff has substantiated his case which has been accepted by the two courts below after a consideration of oral and documentary evidence, this court sitting in second appeal will not be justified at all in interfering with the concurrent findings when the findings are balanced and they are not perverse nor there is any illegality warranting interference. The jurisdiction to interfere with the concurrent finding is rather limited. On the facts of the case, it is clear that the plaintiff has succeeded and the two courts have rightly sustained the claim of the plaintiff and the defendant has miserably failed. 34. In the result, all the points are answered against the appellant. The appeal fails and it is dismissed with cost.

Author: E Padmanabhan

P.G. Gopal vs V. Manickavelu (Died) And Ors. on 19 September, 2003

Madras High Court

JUDGMENT Chamier and Piggott, JJ. 1. This is a Government appeal against an order of acquittal and is brought under the following circumstances. There were four accused persons, Rahmat, Moti, son of Pir Bakhsh, Jhandu and Moti, son of Khilari, all of the Banjara caste, and the case against them, was that they had beaten with lathis their caste fellow, Pir Bakhsh, inflicting serious injuries which as a matter of fact resulted in the death of the said Pir Bakhsh. The Magistrate who inquired into the case, for reasons given by him, framed a charge under Section 325, Indian Penal Code, but committed the accused persons for trial before the Court of Session, The case unfortunately came before a Sessions Judge of very limited experience. He rejected an application made on behalf of the prosecution for amendment of the charge into one under Section 304, Indian Penal Code, or Section 302, Indian Penal Code, and then permitted the case to be compounded upon an arrangement come to between the accused persons and the widow of the deceased He thus acquitted the accused without taking any evidence at all. The order is obviously illegal. An offence punishable under Section 325, Indian Penal Code, is no doubt compoundable with the permission of the court, but it is compoundable by the person to whom the hurt was caused. In this case the parson to whom the hurt was caused was dead and the case was certainly not compoundable by his widow. 2. In dealing with this matter to-day we are placed in a certain difficulty. Moti, son of Pir Bakhsh, has been arrested and has had notice of to-day's hearing. He has been represented before us by counsel. The other three accused persons cannot be found and are presumably absconding. The warrant issued by this Court for their arrest has not hitherto been executed. Notices of to-day's hearing were issued to them and they have been served on their near relatives, but they themselves cannot be found. The Government Advocate, who appears in support of the appeal, informs us that he is willing to withdraw the appeal as against the three absconding accused provided this Court is prepared to take up the case so far as they are concerned in the exercise of its revisional jurisdiction. The case is a very clear one and there is no question of convicting any of the accused on evidence upon the record. Over and above setting aside an order of acquittal, all that we could do would be to direct these persons to be tried. Under these circumstances we think that the three absconding accused have been given a reasonable opportunity of being heard to-day in their defence, within the meaning of the 2nd clause of Section 439, Code of Criminal Procedure, and that we can take up the question as regards them in the exercise of our revisional jurisdiction. 3. With regard to Moti, son of Pir Bakhsh, therefore we so far accept this appeal that we set aside the order of acquittal passed in respect of the said Moti and direct that he be put on his trial before the Court of Session. As regards Rahmat, Jhandu and Moti, son of Khilari, the Government appeal against their acquittal is withdrawn. Taking up the matter in the exercise of our revisional jurisdiction we set aside the order acquitting these three men, which is clearly an illegal order. We leave the local authorities to take such steps with regard to the prosecution of these three men as they may consider suitable.

Author: C A Piggott

Emperor vs Rahamat And Ors. on 21 April, 1915

Allahabad High Court

Court No. - 24 Case :- SERVICE SINGLE No. - 6313 of 2009 Petitioner :- Jai Prakash Awasthi S/O Sanakata Prasad Awasthi Respondent :- State Of U.P. Thru Prin. Secy. Irrigation & Ors. Petitioner Counsel :- Manish Mani Sharma Respondent Counsel :- C.S.C. Hon'ble Rajiv Sharma,J. As prayed by the learned Standing Counsel six weeks' time is allowed for filing counter affidavit. Petitioner may file rejoinder affidavit in next two weeks. List immediately after the expiry of the aforesaid period before the appropriate bench. Order Date :- 27.1.2010 HM

Jai Prakash Awasthi S/O Sanakata ... vs State Of U.P. Thru Prin. Secy. ... on 27 January, 2010

Allahabad High Court