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Gujarat High Court Case Information System Print CR.RA/196/2009 2/ 2 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL REVISION APPLICATION No. 196 of 2009 ========================================================= VALLABH @ VATSAL NATWARLAL PITHADIYA - Applicant(s) Versus PARULBEN VALLABH @ VATSAL PITHADIYA & 1 - Respondent(s) ========================================================= Appearance : MR ZUBIN F BHARDA for Applicant(s) : 1, MR HARSHAD K PATEL for Respondent(s) : 1, MR. J M PITHADIYA for Respondent(s) : 1, MS ML SHAH, APP for Respondent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 19/07/2010 ORAL ORDER Heard the learned counsel for the parties. Petitioner is husband of respondent No.2. He is directed to pay maintenance of Rs.1700/- per month to the wife. He has, therefore, challenged the said order. Having heard the the learned counsel for the parties and considering the submissions made, the petitioner is directed to pay Rs.1500/- per month by way of interim maintenance to the wife for the entire past period and shall continue to pay the same amount till final disposal of the maintenance application by the court below. The learned Judge may attempt to dispose of the application as early as possible and preferably by 31st December 2010. I have expressed no opinion on the rival contentions and this order shall not come in way of either side in producing necessary evidence in support of their stand. As per this modified order, it will be open for the petitioner to clear the arrears by 30th September 2010. The petition stands disposed of accordingly. (Akil Kureshi, J.) (vjn)     Top

Author: Akil Kureshi,&Nbsp;

Vallabh vs Parulben on 19 July, 2010

Gujarat High Court

ORDER 1. This revision petition is by the legal representative of the original plaintiff in O.S. No. 159 of 1957. When the legal representative in appeal came on record, he submitted that he could prosecute the appeal without paying Court fees since the original plaintiff was permitted to file the suit in forma pauperis. He further submitted that he himself was an indigent person within the meaning of Order 33 Rule 1 of the Civil Procedure Code. The learned Civil Judge who enquired into the matter has held that he would not be an indigent person as contemplated under Order 33, Rule 1 C. P. C. He has further held that the legal representative has no immunity from paying the Court fee. Aggrieved by the said order, the present revision petition is filed. 2. The points, therefore, that arise for my consideration in this appeal are- (1) Whether the learned Civil Judge was justified in holding that the legal representative of the original plaintiff who was permitted to sue in forma pauperis, can continue the suit without paying Court fee or without getting himself declared as an indigent person? (2) Whether the order passed by the learned Civil Judge that the legal representative of the original plaintiff is not an indigent person is legal and proper? 3. The learned Advocate for the revision petitioner invited my attention to a decision in the case of Smt. Kalavati Devi v. Chandra Prakash, , wherein it is laid down that once the plaintiff is allowed to sue in forma pauperis, the legal representative, after the death of the plaintiff, can continue with the suit without paying the Court fee and without getting declared that he was also an indigent person. This ruling, however, is differed by this Court in the case of Hussain v. J. Khaza Hussain Sab, (1964) 2 Mys LJ 100. His Lordship Chandrashekhar, J., (as he then was) in that case referred to the decision in the Allahabad case and observed: "Mr. Muralidhar Rao, learned Counsel for the petitioner, relied on the decision in Kalavatidevi v. Chandra Prakash where Raghubar Dayal, J., (before whom the case came up on difference of opinion between B. Mukerji and J. K. Tandon, JJ.) has held that a legal representative added as a party to the suit on the death of the plaintiff who had been allowed to sue as a pauper, cannot be called upon to pay the Court fee during the pendency of the suit as a condition precedent for continuing the suit as a legal representative of the deceased plaintiff " ............ "The ratio of the decision of Raghubar Dayal, J., in the said Allahabad case, is that the right to sue as a pauper is not a distinct and separate right from the right to sue for redress of the wrong". "But the view taken by this Court in Salam B. S. R. V. Motors Private Ltd. v. S. S. Krishna Sastry (AIR 1962 Mys 47) is that the right to sue as a pauper is a personal right distinct and separate from the right to sue for redress of wrong and dies with the person. The same view was taken up by the former High Court of Mysore in Devaraju Naidu v. T. M. Prabhuvaiah (AIR 1953 Mys 57). This is also the view taken in Lalit Mohan Mandal v. Satish Chandra Das ((1906) ILR 33 Cal 1163); Mt. Janikibai v. Mt. Bhikai (AIR 1933 Nag 334) and Subbiah v. Bala Tripura Sundara Boyamma (AIR 1928 Mad 278)." "I should follow the view already taken by this Court which is also supported by preponderance of authority that the right to sue as a pauper is a personal right which dies with the plaintiff although this view was expressed by Somanath Iyer, J., in considering the question whether the legal representative of the deceased applicant when sued in forma pauperis can continue such an application when the original applicant dies during the pendency of such application." "Once it is held that the right to sue in forma pauperis is a personal right which dies with the plaintiff who was granted such permission, it must follow that the petitioner who is the legal representative of the deceased plaintiff cannot be permitted to continue the suit unless he pays the Court fee or establishes that he himself is also a pauper". 4. Thus, it is obvious that the view taken by the Allahabad High Court has not found favour with this Court. It may further be mentioned that in a recent decision of the Bombay High Court, a Division Bench of that Court in the case of Santok Singh v. Radheshyam, , has dealt with this matter at great length reviewing the case law and has arrived at the same conclusion viz., that the privilege to sue in forma pauperis is a personal privilege given to the person and that that benefit would not extend to the legal representative of the plaintiff if the plaintiff dies during the pendency of the suit. The Bombay High Court has also explained the observation of the Supreme Court made in a different context in , followed in . Similar is the view expressed in . That being so, I am satisfied that the learned Civil Judge was justified in holding that the legal representative of the original plaintiff has to either pay the Court fee or prove that he could also enjoy the immunity provided under Order 33 Rule 1 C.P.C. 5. Adverting to the next point, it is true, as rightly pointed out by the learned counsel for the revision petitioner, that the order does not say that notice was issued in deciding the status of the legal representative in the proceeding, commenced under order 33, to the other side though there is a mention, that the Government did not file any objections. Hence, it is obvious that the procedure followed by the learned Civil Judge is illegal in not issuing notice to the other side who has also a right to contest the proceeding. Hence, the revision petition is partly allowed. The order passed by the learned Civil Judge holding that the legal representative is not a papuer within the meaning of Order 33 C.P.C. is set aside. The learned Civil Judge is now directed to issue notice on the application given by the legal representative for getting the immunity contemplated under Order 33 CPC to the respondents in the appeal as also to the Government and give adequate opportunity to the parties to adduce additional evidence if they so desire. He shall thereafter proceed to dispose of the application given under Order 33 CPC and then proceed to dispose of the appeal in accordance with law. 6. Intimate the order to the learned Civil Judge, forthwith to enable him to proceed with the matter in question in the light of the directions given above. No costs. 7. Revision partly allowed.

Saraswatewwa And Anr. vs Shivarudrappa Channappa Kinnala ... on 20 August, 1980

Karnataka High Court

Central Information Commission Appeal No. CIC/PB/A/2008/00507, 530, 630-SM dated 31.07.2008, 14.07.2008 Right to Information Act-2005 - Under Section (19) Dated 30.12.2008 Appellant: Mr. Devesh Bhatt Respondents: Reserve Bank of India Appellant not present inspite of notice. On behalf of the respondents, following are present: (i) Sh. H. R. Khan, CPIO & Executive Director (ii) Sh. A. Unnikrishnan, Dy. Legal Advisor (iii) Sh. Thomas Mathew, Dy. Gen. Manager The appeal was heard on 18.12.2008. 2. Shri Bhatt has filed three appeals (No. 0507, 580, 630) in all. He has sent a request for adjourning the case and also to refer the case to a larger bench of the Commission on the ground that the Respondents have violated the directions/observations given in a full Bench decision of the Commission in the case of Shri Ravin Ranchhodbhai Patel Vs Reserve Bank of India. We are not inclined to agree with the Appellant. This Commission has not passed any order in the past in his three appeals and matters even if the order of the Commission in the case of Shri Ravin Ranchhodbhai Patel Vs Reserve Bank of India has any relevance to the matter involved in these three appeals, we do not see how that should stop us from hearing these appeals. We do not see any complex or larger issue involved in these appeals which would need a full Bench hearing and, hence, we reject the request of the Appellant to refer these cases to a full Bench of the Commission. Also, we are not inclined to postpone the hearing of these appeals. This Commission believes in simple procedures and expeditious disposal of appeals. Already, there has been considerable delay in the disposal of these cases. We do not want to delay these cases any further and, therefore, we would like to continue with the hearing even in the absence of the Appellant who has chosen not to be present inspite of the notice. 3. The brief facts of the cases are as under: 4. In appeals No. (507 & 530), the Appellant had sought information from the CPIO concerned regarding the copies of the inspection report filed with the Reserve Bank of India in respect of certain complaints against the UCO Bank. The CPIO concerned refused to disclose this information or give copies of the inspection report on the ground that the reports contained information in the nature of commercial confidence and trade secrets of third party, the disclosure of which would compromise their commercial interest and hence exempt under Section 8(1) (d) of the RTI Act. Since, the reply of the CPIO in both the cases was sent late, beyond the stipulated period, the Appellant had filed appeals before the Appellate Authority. The Appellate Authority decided both the cases and held that since the reply of the CPIO had been sent before the appeal had been filed and the Appellant had probably not seen the reply the appeals were disposed off without going into the substantive merit of the case. Against the decision of the Appellate Authority, the Appellant has approached the Commission in second appeal in both the cases. 5. In respect of the appeal No. 630, the Appellant had approached the CPIO in his letter dated 20.04.2007 seeking permission for inspection of reports under Section 35 of the Banking Regulations Act of a certain Branch of State Bank of Saurashtra and other related records. The CPIO in his belated reply dated 1.06.2007, denied the information by invoking the exemption provisions of Section 8(1) (a) & (e) of the RTI Act. The Appellant filed an appeal against this before the Appellate Authority in the Bank on 21.06.2007. The Appellate Authority decided the appeal on 07.07.2007 and upheld the decision of the CPIO and dismissed the appeal. The Appellant approach the Commission in second appeal. 6. Since the Appellant was absent inspite of our notice, we carefully perused the appeal memo and other records filed by him. We also perused the reply given by the CPIO in all the three cases as also the orders of the Appellate Authority. Besides, we also kept in view the detailed comments offered by the Reserve Bank of India In all these cases. In two of the appeals, namely, appeal Nos. 507 and 530, it is noted that in both these appeals, the Appellant had raise the issue of non-receipt of reply from the CPIO and had sought directions from the Appellate Authority to the CPIO for supply of information. Since, the Appellate Authority had not gone into the merit of the denial of information by the CPIO in both the cases, we consider it proper to remand both these cases to the Appellate Authority in the reserve Bank of India to consider these cases afresh and, after giving due opportunity of hearing to the Appellant, pass an appropriate and reasoned order on the substantive issues involved in the denial of information by the CPIO. 7. In regard to appeal No. 630 the Appellant has challenged the order of the Appellate Authority on the ground that the Appellate Authority had misread the observations of the CIC in its order dated 07.08.2006 in the case No. 241 and 243 IC(A)/2006 appeal Nos. CIC/MA/A/2006/00406 and 00150. On a careful perusal of the detailed order given by the Appellate Authority in the Reserve Bank of India, we find that the Appellate Authority has rightly interpreted a full bench order of the Commission in the case of Shri Ravin Ranchhodbhai Patel Vs Reserve Bank of India (decided on 7.12.2006). The Appellant has sought to inspect the reports of the special inspection carried out by the Reserve Bank of India of the Surender Nagar Branch of the State Bank of Saurashtra and related documents. As rightly held by the Appellate Authority, allowing inspection of such reports or providing copies thereof under RTI Act may lead to diverting of confidential information concerning third party and might not be in the over all economic interest of the Country. However, we are of the view that the Public Authority should make an effort to isolate those Sections of the report which are exempted from disclosure under provisions of Section 8 of the RTI Act and allowing the remaining portions to be inspected. We direct the Appellate Authority and the CPIO concerned to decide to the extent to which reasonably those Sections of the inspection notes and related documents as sought by the Appellant should be severed from the rest which are exempted under the RTI Act and allow the rest to be inspect by the Appellant within 15 working days from the receipt of this order. 8. The Appeal are, thus, disposed off. Copies of this order be given free of cost to the parties. Sd/- (Satyananda Mishra) 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. Sd/- (Vijay Bhalla) Assistant Registrar

Mr. Devesh Bhatt vs Reserve Bank Of India on 30 December, 2008

Central Information Commission

[Section 15B] [Complete Act]

Central Government Act

JUDGMENT D.R. Dhanuka, J. 1. The Employees' State Insurance Corporation has preferred this appeal against order dated April 29, 1983 passed by the Employees' Insurance Court, Bombay in Application (ESI) No. 27 of 1979. By the impugned order under appeal, the trial Court held that the head office/principal office and warehouse of the applicant company were not covered under the Employees' State Insurance Act, 1948. By the said order, the trial Court further held that the establishments mentioned in para. 6 of the application (Exhibit C-1) were also not amenable to coverage under the said Act. By the said order, it was further declared that the applicant company was not required to comply with any provisions of the E.S.I. Act and/or the Scheme and/or the Regulations framed thereunder in respect of or in relation to any of the concerned establishments or the persons employed therein till the time the position disclosed in the application (Exh. C-1) subsisted. 2. Indian Sewing Machine Co. Ltd. is a Corporation organised and existing under the laws of the Stale of New Jersey, U.S.A. having its principal office of business in India at 207, Dr. Dadabhoy Naoroji Road, Bombay. The said company was formerly known as Singer Sewing Machine Company. The respondent is engaged in the business of marketing of industrial sewing machines and domestic sewing machines and their accessories etc. The respondents do not have and never had a "factory" within the meaning of Employees' State Insurance Act, 1948. The respondent has several establishments situate in the State of Maharashtra and other parts of India. 3. On September 18, 1978, the Government of Maharashtra issued a notification bearing No. ESI, 1677/3910/PH-15. By the said notification, the provisions of the Employees' State Insurance Act, 1948 were extended to various classes of establishments mentioned in column 1 of the Schedule appended thereto in the areas specified in column 2 of that schedule. The said notification was issued under Section 1(5) of the Act. By the said notification, "shops" wherein 20 or more employees are employed or were employed for wages on any day of the preceding twelve months were covered by and under the provisions of the said Act if the establishment was situate within the limits of Municipal Corporation of Greater Bombay and within the talukas of Thane district as specified in the said notification. 4. At the head office of the respondent, the respondent employed about 170 employees at the material time out of which about 55 employees were employed on wages of Rs. 1000/- or less. The business of the respondent including the marketing activity was mainly conducted from the said head office. Along with the said head office, the respondent also had a shop situate in the said premises i.e. 207, Dr. Dadabhoy Naoroji Road, Bombay wherein 19 employees were employed at the relevant time. 5. Apart from the said head office and the said shop situate at 207, Dr. D.N. Road, Bombay, the respondents have several other shops situate at various places in the city of Bombay, Thane, Pune and Nagpur employing three to four employees at the said shops. At the material time, the respondent also had a warehouse situate on 14, Thane Street, Carnac Bunder, Bombay, employing 8 employees at the said warehouse. The establishment of the respondent known as head office was got registered by the respondent as a "commercial establishment" under the Bombay. Shops and Establishments Act, 1948. Each of the shops referred to in para 6 of Application (ESI) No. 27 of 1979 was separately registered as a shop under the provisions of the said Act and the warehouse prescribed at serial No. 10 of para 6 of the said application was got registered separately as a commercial establishment under the said Act. 6. Disputes and differences arose between the parties in respect of interpretation of the word 'shop' used in the said notification dated September 18, 1978 and the coverage of the head office or the shops or the warehouse by or under the provisions of the Employees' State Insurance Act, 1948. It was the contention of the respondents at the material time that the head office was not covered by the said notification as it was an administrative office and not a "shop". It was the contention of the respondents at the material time that the warehouse referred to at serial No. 10 of para 6 of the above referred application was neither a shop nor a commercial establishment and was therefore not covered on any view of the matter. It was also the contention of the respondent that each shop described at serial Nos. 1 to 9 in para 6 of the said application was a separate independent unit and these shops were also not covered under the said Act as the number of employees employed at these shops were less than 20. It was the contention of the appellant Corporation at the material time that the number of employees employed at the head office and the shops and warehouse were liable to be aggregated and the head office as well as each of the 10 establishments referred to in para 6 of the application were covered under the Act. It was also contended by the appellants at one stage that these shops were liable to be considered as branches of the head office. An attempt was also made to cover all the establishments under the Act by relying on the doctrine of "clubbing" of various establishments where functional integrality between different establishments was established. 7. On May 10, 1979, the respondent filed the above referred application before the trial Court seeking a declaration that the provisions of the Act did not extend to and/or cover the head office and/or any of the other establishments of the respondent situate within the limits of Municipal Corporation of Greater Bombay and/or Thane, Taluka of Thane District and at different places outside the State of Maharashtra and more particularly the establishment described in paras 6 and 7 of the application. By para. 18 of the written statement of the appellant before the trial Court it was prayed that the trial court be pleased to hold and declare that the principal office/head office/warehouse/shops etc. were all covered under the provisions of the Act with effect from November 12, 1978 and the respondent employer was required to cover all their employees under the said Act. At the trial of the said application, oral and documentary evidence was led by the parties. One Shekhar Barkur Shetty was examined as a witness on behalf of the respondents. No oral evidence was led on behalf of the appellant Corporation. During his examination-in-chief, the said witness stated that none of the establishments detailed in para 6 of the application were inter-connected or dependent on any other establishment. The said witness stated that each of the establishments operated separately and independently. During the course of his cross-examination, the said witness stated that the goods received by the respondents are first stored in their warehouse from where orders for different locations are executed. It was stated that each shop was having a Managing Salesman duly appointed by the head office. All appointments v/ere made by the head office. Salary is paid to the employees at these shops from the head office. It was admitted that all these shops were centrally administered by the head office. Each shop maintains separate accounts. All the accounts maintained by each shop of the respondent are consolidated. 8. It is common knowledge that prior to recent Supreme Court judgments various High Courts including our High Court have taken a narrow view in respect of meaning of the word "shop". The view taken was that the expression "shop" used in the above referred notification meant a house or building where goods were purchased or sold. In the case of International Ore and Fertilizers (India) Pvt. Ltd. v. Employees' State Insurance Corporation, (1988-I-LLJ-235 at 237), the Supreme Court held that the expression "shop" meant a place of business or place where one's ordinary occupation was carried out. In the case of Cochin Shipping Company (1993-II-LLJ-795), the Supreme Court held that the establishment of clearing and forwarding agent was liable to be treated as a shop within meaning of the above referred notification. In this case also, the Supreme Court held that the expression "shop" was not liable to be construed literally particularly as Employees' State Insurance Act was a welfare legislation. The Bombay High Court had taken a similar view in the case of Dattaram Advertising (P) Ltd. In Employees' State Insurance Corporation v. R.K. Swamy, (1994-I-LLJ-636 at 639), the Supreme Court held that the office premises of an advertising agency was liable to be considered as a "shop" within the meaning of the above referred notification. By its judgment delivered in the said case, the Supreme Court reversed the view taken by High Courts of Bombay, Madras and Kerala to the contrary in series of cases noticed therein. Any place where an economic or commercial activity is carried on can be considered as a 'shop' under the above referred notification. 9. Relying on the old case law which held the field then, the trial Court held that the head office/principal office of the respondent could not be treated as a 'shop* within the meaning of the said notification and the same was thus not covered under the Act. In view of the above referred Supreme Court judgment, this view of the trial Court is hereby overruled. In para, 20 of its judgment, the trial Court held that the expressions "commercial establishments" and "shops" were mutually exclusive. It is no longer possible to treat commercial establishment and shop as mutually exclusive for the purpose of Employees' State Insurance Act. 10. If the head office of the respondent was duly covered establishment as it was a shop employing more than 20 employees at the relevant time, the entire complexion of the controversy changes and the appeal shall have to be decided even in respect of the other establishments in the context of the provisions contained in Section 2(9) of the Act rightly relied upon by the learned counsel for the appellant. With effect from November 18, 1978, the head office of the respondent situate at D.N. Road, Bombay, was covered by and under the provisions of the said Act. The said office has: 1. Marketing Division, 2. Central and Finance Division, 3. Industrial Products Division, 4. Spare Parts Distribution Centre, 5. Purchase and Distribution Division. 6. Training School, and 7. Law and Personnel Department. 11. Section 2(9) of the said Act concludes the controversy in favour of the appellant and against the respondent even in respect of coverage of the shops and warehouse referred to in para. 6 of the above referred application. The establishments referred to in para 6 of the said application are as under: Shop 3 The learned counsel for the appellant submits that any person employed for wages in connection with the work of the establishment covered under the Act is also covered by definition of the expression "employee" under Section 2(9) of the Act. Section 2(9) of the said Act reads as under- "(9) "employee" means any person employed for wages in or in connection with the work of a factory or establishment to which this Act applies and- (i) who is directly employed by the principal employer on any work of, or incidental or preliminary to or connected with the work of, the factory or establishment, whether such work is done by the employee in the factory or establishment or elsewhere; or (ii) who is employed by or through an immediate employer on the premises of the factory or establishment or under the supervision of the principal employer or his agent on work which is ordinarily part of the work of the factory or establishment or which is preliminary to the work carried on in or incidental to the purpose of the factory or establishment; or (iii) whose services are temporarily lent or let on hire to the principal employer by the person with whom the person whose services are so lent or let on hire has entered into a contract of service; and includes any person employed for wages on any work connected with the administration of the factory or establishment or any part, department or branch thereof or with the purchase of raw materials for or the distribution or sale of the products of, the factory or establishment;......" All persons employed for wages connected with distribution or sale of the products concerning the establishment covered under the Act are thus specifically covered under Section 2(9) of the said Act. The employees working in the shops or warehouse referred to hereinabove were employed for wages on work connected with marketing of the sewing machines which is the main business of the respondent. In view of the applicability of the above referred provisions to the case of each of the shops and the warehouse referred to hereinabove, nothing more is required to be decided in this appeal. The concept of clubbing of different shops or different establishments or treating the same as one establishment is technically different. It is not necessary for the purpose of this appeal to decide as to whether the employees working at each of the shops or the warehouse are liable to be clubbed together or whether the 10 establishments described in para 6 of the above referred application are liable to be treated as one establishment. All these employees are directly covered under Section 2(9) of the Act as discussed above. 12. In the result, it must be held that the head office of the respondent is covered by and under the said Act with effect from November 12, 1978. All the employees working in the said head office or working in the shops or the warehouse referred to in para 6 of the application whose wages at the material time did not exceed sum of Rs. 1000/- were and are also covered by and under the provisions of the said Act. It is not necessary to examine the reasoning of the trial Court in detail as the said reasoning runs counter to the recent judgments of the Supreme Court as indicated above. 13. In the result, the appeal is allowed. Order of the trial Court passed on April 29, 1983 in Application (ESI) No. 27 of 1979 is set aside. Application (ESI) No. 27 of 1979 is dismissed. The respondent is directed to comply with the provisions of the Act and pay the amount of contribution payable by them to the appellant within two months of the receipt of the notice of demand calculating the figures of contribution payable by the respondent to the appellant. 14. Having regard to the facts and circumstances of the case, there shall be no order as to costs. 15. The Registrar, High Court, Bombay, is directed to return the records and proceedings to the trial Court as expeditiously as possible, and latest within one month from today. 16. Issue of certified copy expedited.

Author: D Dhanuka

E.S.I.C. vs Indian Sewing Machine Co. Ltd. on 10 August, 1994

Bombay High Court

Gujarat High Court Case Information System Print CR.MA/5659/2009 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 5659 of 2009 ===================================================== MUKADAS HUSSAIN @ MUKADAS ANVAR HUSSAIN SHEIKH - Applicant(s) Versus STATE OF GUJARAT & 2 - Respondent(s) ===================================================== Appearance : THROUGH JAIL for Applicant(s) : 1, Mr.L.B.Dabhi,learned ADDL.PUBLIC PROSECUTOR for Respondent(s) : 1, None for Respondent(s) : 2 - 3. ===================================================== CORAM : HON'BLE SMT. JUSTICE ABHILASHA KUMARI Date : 12/05/2009 ORAL ORDER This application has been filed by the applicant,who is an under-trial prisoner, through jail, for the grant of regular bail. It appears that the applicant had earlier approached the Sessions Court for grant of bail,which application appears to have been rejected. As no papers are attached to the application, and as the applicant has preferred the application through jail, the interest of justice would be met if legal aid is provided to the applicant. Accordingly the Registry may refer the matter to the Secretary,Legal Aid Committee, High Court, to do the needful. (Smt.Abhilasha Kumari,J) arg     Top

Author: Abhilasha Kumari,&Nbsp;

Mukadas vs State on 11 August, 2010

Gujarat High Court

JUDGMENT Sulaiman, J. 1. This is an application in revision from an order passed on appeal directing the prosecution of the applicant under Sections 193 and 471 of the Indian Penal Code. The applicant filed a suit on the basis of a promissory-note alleged to have been executed by the defendant and also produced a receipt purporting to be of the same date. The defendant denied the genuineness of these documents and denied that he had ever borrowed any money from the plaintiff. The promissory-note and the receipt were sent to the Thumb Impression expert at the instance of the plaintiff, but the report received from the expert was that the impressions were too blurred to be decipherable. The plaintiff then stated before the Court that if the defendant took an oath on the Ganges water that he had not borrowed the money from the plaintiff he would agree to the suit being dismissed. The defendant agreed to take the oath. On the oath being taken by the defendant the Court without going into any further evidence dismissed the suit. Neither the plaintiff nor any witnesses on his behalf were examined. After the dismissal of the suit the defendant applied to the Trial Court for proceedings being taken against the plaintiff under Section 193 and Section 471 of the Indian Penal Code inasmuch as he had verified the plaint and filed documents which were said to be forged. The Trial Court declined to pass any such order. On appeal the learned Judge has reversed the order. 2. As the case would be merely one of oath against oath without any conclusive documentary evidence to prove that the pro-note and the receipt were forgeries I might have inclined to interfere in revision on the criminal side if the application were, as it purports to be, under Section 439 of the Cr. P.C. On the other hand if this is a proceeding of a civil nature and my power of revision is confined to the provisions of Section 115 of the C.P.C., I would find it absolutely impossible to interfere, as there is neither any want of jurisdiction or any irregularity or illegality in the exercise of jurisdiction. 3. I have, therefore, to consider whether a revision from an order passed under Section 476-B by the superior Court lelates to a proceeding within the meaning of Section 439 of the Cr. P.C. 4. Under the old Code a Full Bench of this Court In the matter of the petition of Bhup Kunwar 26 A. 249 : A.W.N (1904) 15 : 1 Cr L.J. 73 overruling several previous cases held "where an order is passed under Section 476 by a Civil Court, the case does not fall under Section 439 of the Cr. P.C., and the High Court has no power of interference in revision." 5. After some years a Full Bench of the Calcutta High Court came round to the same opinion in the case of Har Prasad Das v. Emperor 19 Ind. Cas 197 : 40 C 477 : 17 Cr. L.J. 245 : 14 Cr. L.J. 197, 17 C.W.N. 647. There it was held that Section 439 of the Cr. P.C., was inapplicable to a case where a Civil or Revenue Court had passed an order under Section 476. 6. The Full Bench case had of course been followed by this Court till the Code was amended. The amended Code has made certain alterations in Sections 195, 476, 439 and 537. 7. A Criminal Revision No. 428 of 1924 came up before Mukerji, J., who considered the question to be of some importance and referred it to a larger Bench. It appears that in the course of the argument he was informed that the general opinion now held is that the earlier view of this Court required reconsideration. I am not aware of the extent to which such opinion is held. The learned Judge suggested that the point required re-consideration in view of the fact that under Section 476-D an appeal is now allowed. The Bench before which the case went up however did not decide this question, but dismissed the application on the merits. 8. I have, therefore, to consider whether the amendment of the Cr. P.C. has made the Full Bench ruling of this Court no longer a good law. 9. Section 476 of the old Code as well as the corresponding section of the new Code empowers any Civil, Criminal or Revenue Court to take steps mentioned therein. It follows that merely because a Court is taking proceedings under Section 476 it cannot be supposed that that Court is necessarily a Criminal Court. A Civil Court exercising powers under Section 476 remains a Civil Court. Section 476 of the old Code did not provide for any appeal from an order passed by the first Court, but Section 476-D provides an appeal from an order passed by any such Civil, Revenue or Criminal Court to a Court to which such former Court is subordinate within the meaning of Section 195(3). Then the superior Court is defined in Section 195(3) of the new Code as being a Court to which appeals ordinarily lie from the appealable decrees or sentences of such former Court or in the case of a Civil Court from whose decrees no appeal ordinarily lies, the principal Court having ordinary original civil jurisdiction. It follows, therefore, that the superior Court to which appeals ordinarily lie and which is empowered under Section 476 B to hear an appeal cannot necessarily be deemed to be a Criminal Court. It can continue to be a Civil Court if it is in fact a Civil Court. 10. Section 435 of the Cr. P. C, empowers the High Court to call for the record of any inferior Criminal Court, but it does not empower the High Court to call for the record of any Civil or Revenue Court. It cannot, therefore, be contended for a moment that the record of the superior Court under Section 476-D can be called for by the High Court under Section 435. It must, however, be noted that Section 439 is slightly wider in scope and covers cases where the record of proceeding has been called for by the High Court or which has been reported for orders or which otherwise comes to its knowledge. Even under the old Code some learned Judges interfered with an order passed under Section 145 of the Code although under Section 435(3) the record of that case could not be called for. It would seem that the High Court, therefore, may interfere in revision under Section 439 even if it has not been empowered to call for the record under Section 435. But the view taken by the Full Bench of this Court referred to above was that Section 435--439 must be read together and that the word "proceeding" mentioned in Section 439 meant the same proceeding as is mentioned in Section 435. It may be that the word "proceeding" in Section 439 may mean the proceeding in any Criminal Court referred to in Section 435 or it may possibly mean any proceeding to which the Cr. P.C. is applicable. If the latter meaning were to be assumed perhaps the power of revision of the High Court might be wider, but the Full Bench accepted the view that the word ''proceeding" meant proceeding in any Criminal Court and not necessarily any proceeding referred to in the Cr. P.C. I am bound to follow that view and I see nothing in the amended Code which can alter the effect of that Full Bench ruling. The mere fact that now an appeal is provided to a superior Court cannot make that Court a Criminal Court nor can it make the proceeding before that superior Court one which can be interfered with under Section 439. 11. Under the old Code there was one difficulty in the way of the view expressed by the Full Bench, namely, that Section 537-B assumed that a High Court could interfere on appeal or revision in cases of an irregularity in proceedings taken under Section 195 or Section 476. The Full Bench, however, took the view that that must refer to proceedings under Section 476 before a Criminal Court. No such difficulty now arises before me. Sub-clause B of Section 537 has altogether been deleted in the new Section 537, It is further to be noted that even in the old Code there was no mention of Section 476 in the old Section 439 but there was a mention of Section 195. In the corresponding section of the new Code even the mention of Section 195 has now been omitted. It is further clear that the substantial effect of an order under Section 476 is the filing of a complaint on behalf of the Court before a Magistrate. When an order is to be revised it would mean not only an order superseding the order of the, lower Court but also an order directing the withdrawal of that complaint. Section 438 does not expressly empower the High Court to direct the withdrawal of a complaint which might have been filed by a subordinate Court. It is confined to the powers which are conferred on a Court of Appeal by Sections 423, 426, 427, 428 or 438. It, therefore, seems to me that the amendment of the Cr. P.C., has strengthened the view of the Fall Bench rather than weakened it. I am accordingly of opinion that I have no power of interference on the criminal side. 12. The learned Counsel for the applicant has urged before me that I should exercise the power of superintendence conferred on the High Court under Section 107 of the Government of India Act. I doubt very much whether the word "superintendence" could have been intended to mean the same thing as revision. I, however, consider it unnecessary to decide whether the word "superintendence" is used in an administrative sense or not. I do not think that this is a case in which an extraordinary power of the High Court, even if it were vested in it, should be exercised. 13. The application is accordingly dismissed.

Author: Sulaiman

Banwari Lal vs Jhunka on 6 November, 1925

Allahabad High Court

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 6083 of 2002 -------------------------------------------------------------- SATISHBHAI NANUBHAI PATEL Versus DEPUTY EXECUTIVE ENGINEER -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 6083 of 2002 MRS SANGEETA N PAHWA for Petitioner No. 1 GOVERNMENT PLEADER for Respondent No. 1 -------------------------------------------------------------- CORAM : MR.JUSTICE N.G.NANDI Date of Order: 25/11/2002 ORAL ORDER On the request of Ms. Sangeeta Pahwa, learned advocate for the petitioner, time granted to file affidavit in rejoinder. To come up on 9/12/2002. (N.G.Nandi,J.) (vipul)

Author: N.G.Nandi,&Nbsp;

Special Civil Application No. ... vs Government Pleader For on 2 August, 2010

Gujarat High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM Con.Case(C).No. 1612 of 2007(S) 1. P.PARAMESWARAN PILLAI, ... Petitioner Vs 1. JAMES VARGHESE, ... Respondent 2. MOHANA ABRAHAM, AGED 53, For Petitioner :SRI.P.N.MOHANAN For Respondent : No Appearance The Hon'ble the Chief Justice MR.H.L.DATTU The Hon'ble MR. Justice A.K.BASHEER Dated :28/07/2008 O R D E R H.L.DATTU, C.J. & A.K.BASHEER, J. ------------------------------------------------------- Cont. Case (Civil) No.1612 of 2007-S ---------------------------------------------------- Dated, this the 28th day of July, 2008 JUDGMENT H.L.Dattu, C.J. This contempt case is filed by the respondent in W.A.No.2253 of 2004 dated 3-6-2005, inter alia alleging that the respondents have disobeyed the positive directions issued by this Court while disposing of W.A.No.2253 of 2004 dated 3-6-2005. Therefore, a request is made to initiate appropriate contempt proceedings against the respondents as envisaged under the provisions of the Contempt of Courts Act, 1971 read with Article 215 of the Constitution of India. 2. The one and the only direction that was issued by this Court while disposing of W.A.No. 2253 of 2004 dated 3-6-2005 is as under: 3. Notice of this contempt case was ordered to be issued  COC No.1612/2007 -2- and served on the respondents. They have entered appearance through Government Advocate. 4. Today, the learned Government Advocate would produce before us the orders passed by the State Government dated 8-7-2008. In that, after considering the request of the respondent in the writ appeal, the Government have rejected the same on various grounds. 5. In order to initiate contempt proceedings against the respondents, in our view, there must be a deliberate and wilful disobedience of the orders and directions issued by this Court as envisaged under provisions of the Contempt of Courts Act. 6. In the instant case, as we have already noticed the one and the only direction that was issued by this Court was to consider the case of the petitioners for grant of Vocational Higher Secondary Schools. The respondents, after considering the request of the respondent in the writ appeal has rejected the same by order dated 8-7-2008. 7. In our opinion, there is substantial compliance of the orders and directions issued by this Court. Therefore, it may not be necessary for us to take cognizance of this contempt case filed by the respondent in the appeal. Therefore, the contempt proceedings are dropped. COC No.1612/2007 -3- 8. Liberty is reserved to the petitioner/respondent in the appeal, if he so desires, to question the correctness or otherwise of the orders passed by the State Government dated 8-7-2008, in appropriate proceedings. Ordered accordingly. (H.L.DATTU) CHIEF JUSTICE (A.K.BASHEER) JUDGE MS 

P.Parameswaran Pillai vs James Varghese on 28 July, 2008

Kerala High Court

Gujarat High Court Case Information System Print SCA/1271/2010 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 1271 of 2010 ========================================================= DEPUTY ENGINEER & 1 - Petitioner(s) Versus MUSABHAI ABDULSALAM CHARKHA - Respondent(s) ========================================================= Appearance : MR RC JANI for Petitioner(s) : 1 - 2. MR SK BUKHARI for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE RAVI R.TRIPATHI Date : 08/03/2010 ORAL ORDER Heard learned advocate Mr.R.C. Jani for the petitioners. The learned advocate invited attention of the Court to the application and the oder passed below the same. Having perused the order this Court is of the opinion that the learned Judge has passed the order as he was rendered helpless due to non cooperation on the part of the learned advocate. In view of that this Court is of the opinion that the petition does not deserve to be entertained. The petition is dismissed. Notice is discharged. (RAVI R. TRIPATHI, J.) karim     Top

Author: Ravi R.Tripathi,&Nbsp;

Deputy vs Musabhai on 8 March, 2010

Gujarat High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C) No. 34470 of 2004(C) 1. JOHNSON MATHEW, S/O.MATHEW, ... Petitioner Vs 1. KRISHNAN POTTY, S/O.SANKARAN POTTY, ... Respondent 2. MARIYAMMA THOMAS, PLAKOOTTATHIL For Petitioner :SRI.K.C.CHARLES For Respondent :SRI.T.A.UNNIKRISHNAN The Hon'ble MR. Justice PIUS C.KURIAKOSE Dated :08/08/2007 O R D E R PIUS C. KURIAKOSE, J. .......................................................... W.P.(C)No.34470 OF 2004 ........................................................... DATED THIS THE 8th AUGUST, 2007 J U D G M E N T In a suit for specific performance of a contract for sale, serious dispute arose as to the genuineness of the handwriting and signatures relating to an endorsement made on the reverse side of the suit agreement. The endorsement was to the effect that a sum of Rs.35,000/- which had been advanced by the petitioner was returned to him. The instant application was filed by the petitioner for forwarding the agreement to a forensic expert for a report after comparing the admitted signatures on the agreement with the disputed signatures on the reverse side of the agreement. The learned Munsiff noticed that there was considerable delay in the matter of filing the application. The learned Munsiff also noticed that the petitioner had not complied with the direction that specimen signatures of the relevant period should be produced. The learned Munsiff was not prepared to accept the claim of the petitioner that the Forensic Science Laboratory, Thiruvananthapuram to which the document was sought to be forwarded will be able to file their report within two to three months. The learned Munsiff found, obviously from his own experience, that the Forensic Science Laboratory will take three to four  WP(C)N0.34470/04 -2- years for submitting their reports. 2. I have heard the submissions of Sri.K.C.Charles, counsel for the petitioner and Sri.T.A.Unnikrishnan, counsel for the 1st respondent. 3. Mr.Charles submitted that concededly the 1st respondent has already sold the property to the 2nd respondent and that the 1st respondent may not any longer be an interested party. It was the 1st respondent alone who filed counter affidavit before the court below. The 2nd respondent had not filed counter affidavit before the court below nor has that respondent entered appearance before this Court. Mr.Charles would flay the impugned order on the basis of the various grounds raised. Mr.Charles submitted that competent private experts are available and they will be able to submit reports within a time- frame as short as six months. The submission of Mr.Charles is that the learned Munsiff was not justified in insisting on production of admitted signatures pertaining to the relevant period since there are admitted signatures on the agreement itself. It was only an endorsement on the reverse side which was in dispute. All other signatures were admitted, submitted the learned counsel. 4. Mr.T.A.Unnikrishnan, counsel for the 1st respondent would submit that the obvious object in filing the application is to delay the  WP(C)N0.34470/04 -3- trial and disposal of the suit further. The petitioner could have filed the application as soon as the written statement was filed or at least when the case was posted for pre-trial steps, submitted the learned counsel. 5. Having considered the rival submissions, I am inclined to agree with Mr.Charles in his submission that for resolving the issue in the suit, the best evidence will be the report on the basis of a forensic scrutiny of the document. I do agree with the learned Munsiff and Mr.T.A.Unnikrishnan that there was considerable delay on the part of the petitioner in filing the application. But, at the same time, I do not think that this Court will be justified in awarding costs to the 1st respondent who has ceased to have any interest in the property. 6. I set aside the impugned order and allow I.A.No.971 of 2004 on condition that the petitioner pays a sum of Rs.500/- by way of costs to the High Court Legal Services Authority within three weeks from today. Once the cost is paid and the order allowing the I.A. becomes operative, the learned Munsiff will permit both sides to submit panels containing the names of private experts. The court below will appoint one expert from out of the panels submitted by the parties. The entire expenses to be incurred in connection with the forensic scrutiny of the  WP(C)N0.34470/04 -4- document in question will be borne by the petitioner irrespective of the result of the suit. In other words, the expenses incurred in the context of the present I.A. will not be part of the ultimate costs of the suit. The learned Munsiff will issue appropriate directions to the expert so as to ensure that the report is received at the earliest. Once the report is received, the suit will be special-listed for trial and disposed of at the earliest. The Writ Petition is disposed of as above. (PIUS C.KURIAKOSE, JUDGE) tgl  WP(C)N0.34470/04 -5-

Johnson Mathew vs Krishnan Potty on 8 August, 2007

Kerala High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA CR. APP (DB) No.658 of 2009 KRISHNA SHAH Versus STATE OF BIHAR ----------- Prakash ( Shailesh Kumar Sinha, J.) 7 01.06.2011 As prayed for, put up this case on next Monday.

Krishna Shah vs State Of Bihar on 1 June, 2011

Patna High Court - Orders

Gujarat High Court Case Information System Print CR.RA/312/2009 2/ 2 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL REVISION APPLICATION No. 312 of 2009 ========================================================= DIRECTOR OF REVENUE INTELLIGENCE, AHMEDAL ZONAL UNIT - Applicant(s) Versus STATE OF GUJARAT & 1 - Respondent(s) ========================================================= Appearance : MR HRIDAY BUCH for Applicant(s) : 1, MR HL JANI Ld. APP for Respondent(s) : 1, MS SM AHUJA for Respondent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 20/01/2011 ORAL ORDER The original complainant Director of Revenue Intelligence, has filed this application under sec. 397 read with sec. 401 and 439(2) of CrPC challenging the order dated 21.4.2009 passed by the learned Addl. Chief Metropolitan Magistrate, Ahmedabad. Heard Mr Buch learned advocate for the complainant, Mr HL Jani learned APP for the State and Ms SM Ahuja learned advocate for respondent no. 2. Mr. Buch learned advocate has argued that in para-3 of the impugned order, the learned Judge has observed that the case of the prosecution under sec. 135(1)(i) and under sec. 135(1)(ii) is bailable offence. Mr Buch has contended that prior to the production of evidence on record, only from the submission of the respondent for releasing him on bail, the learned Judge cannot decide whether the respondent has committed the said offence punishable under sec. 135(1)(i) and 135(1)(ii) of the Customs Act and, therefore, the impugned order is required to be quashed and set aside. I have considered the submissions of learned advocates for the parties and also perused sec. 135 of the Customs Act. It appears that the learned Judge has committed the grave error by observing that the said offence is bailable. However, I do not want to observe anything with regard to the observation made by the learned Judge while releasing the respondent no. 2 on bail. There being no substance in this application and the same is dismissed. Rule discharged. (Z.K. SAIYED, J) mandora/     Top

Author: Z.K.Saiyed,&Nbsp;

Director vs State on 15 April, 2011

Gujarat High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA CR. APP (DB) No.965 of 2010 MISHRI RAI @ AMAR NATH RAI Versus STATE OF BIHAR ----------- 2. 12.8.2010 Admit the appeal. Call for the lower court records of Sessions Trial No. 374 of 2008 from the court of Additional Sessions Judge- VIII, Patna. Prayer for bail of the appellant will be considered on receipt of the lower court records. ( Mridula Mishra, J.) ( Dharnidhar Jha, J.) Kanth

Mishri Rai @ Amar Nath Rai vs State Of Bihar on 12 August, 2010

Patna High Court - Orders

CASE NO.: Appeal (civil) 5206 of 2003 PETITIONER: Shakuntala & Ors. RESPONDENT: Vs. Balkrishna & Ors. DATE OF JUDGMENT: 25/07/2003 BENCH: K.G. BALAKRISHNAN & P. VENKATARAMA REDDI. & JUDGMENT: J U D G M E N T (Arising out of SLP(Civil) No. 2901/2002) K.G. Balakrishnan, J. Leave granted. The claimants in a motor accident claim are appellants before us. They are the legal heirs of one Rajashekhar Kasture who died in a motor accident. The deceased Rajashekhar Kasture was aged about 24 years at the time of his death. He was employed as a Munim in Avinash and Co. On 20.7.1996, when he was travelling in a lorry to bring sugar for his employer, the lorry met with an accident and he fell down and died on the spot. The claimants preferred claim contending that he was the only earning member and was earning Rs. 3000/- p.m. The respondent No. 2 namely, the lorry owner contended that the deceased was working only as a office boy and was having a salary of Rs. 600/- p.m. To support his plea, RW1, the owner of the company was also examined. The Tribunal after considering the evidence on either side held that the salary of the deceased must have been around Rs. 1200/- p.m. and by deducting 1/3rd for his personal expenses, the monthly dependency of the claimants must have been Rs. 800/- p.m. Taking the annual income as Rs. 9600/-, the total compensation was fixed at Rs. 1,53,600/- and an award was passed in favour of the claimants. Aggrieved by the same, the second respondent preferred an appeal before the High Court of Karnataka and the High Court reduced the compensation to Rs. 81,600/- under the heading 'loss of dependancy'. The Judgment of the High Court is challenged before us. We heard learned Counsel on either side. The High Court considered the evidence of RW1, the partner of the Avinash and Company with whom the deceased was employed. RW1 deposed that the monthly salary of the deceased was Rs. 600/-. RW1 had chosen to produce some receipts purportedly signed by the deceased but he cleverly withheld the salary register maintained by the company for the relevant period. The receipts were not originally produced but later he produced them and the Tribunal rightly declined to take note of the same. During the time of cross-examination, he admitted that the persons who were similarly employed were being paid Rs. 1,500/- p.m. It is also difficult to believe that the company would employ a person with such a meagre amount of Rs. 600/- p.m. It may also be noticed that the company under the management of RW1 was having 4 to 5 lorries and about 30 workers were employed under them. He must have been keeping some documents in respect of payment of salary to his workers but such documents were not produced. The Tribunal had considered the evidence in detail and came to a rational conclusion regarding the income of the deceased. The learned Single Judge without considering the evidence of RW1 simply brushed aside the whole evidence and accepted the statement of RW1 solely on the ground that the employer himself had spoken regarding the salary and it must have been taken as correct. This approach made by the High Court is not at all justified having regard to the entire facts and circumstances of the case. The High Court, on flimsy reasons, interfered with the award passed by the Tribunal. The compensation awarded by the Tribunal was just and reasonable. In the result, we allow the appeal preferred by the claimants and set aside the Judgment of the learned Single Judge. If the appellants have not been paid the amount, the same shall be paid as directed in the award by the Tribunal within two months. There will be no order as to costs.

Author: K Balakrishnan

Shakuntala & Ors vs Balkrishna & Ors on 25 July, 2003

Supreme Court of India

1 S.B. Civil Misc. Appeal No.1384/2008 National Insurance Co. Ltd. vs. Surjan Singh & Ors. S.B. Civil Misc. Appeal No.1384/2008 National Insurance Company Ltd. vs. Surjan Singh and others. Date : 7.1.2009 HON'BLE MR. PRAKASH TATIA, J. Mr.Sanjeev Johari, for the appellant. Mr.Rajesh Panwar, for the respondents. - - - - - Heard learned counsel for the parties. The appellant insurance company is aggrieved against the award dated 27.6.2008 passed by Motor Accident Claims Tribunal, Parbatsar in MACT Case No.173/2006. In the accident dated 23.9.2006 by the tractor No.RJ 21 RA 4043, one young boy Munna of age of 5 years died and the claimants, father and mother of the deceased, submitted claim petition wherein after trial, the Tribunal assessed the notional income of the deceased as Rs.15,000/- per annum 2 S.B. Civil Misc. Appeal No.1384/2008 National Insurance Co. Ltd. vs. Surjan Singh & Ors. and applied the multiplier of 15 and awarded total compensation of Rs.2,25,000/- to the claimants. According to learned counsel for the appellant, the deceased was traveling in the tractor and he fell down and he died. Since he was passenger on the tractor, therefore, the insurance company cannot be held liable to pay the compensation. Learned counsel for the appellant relied upon the FIR, copy of which has been shown to this Court, whereby the learned counsel for the appellant submitted that it is clear that in the FIR, it is mentioned that Munna was traveling in the tractor. I considered the submissions of learned counsel for the parties and perused the FIR as well as the documents prepared by the police during investigation. The claimants stated that deceased boy Munna was going with his mother on 23.9.2006 from their house to their agricultural field and on way, the non-applicant no.1 came with the tractor no.RJ 21 RA 4043 and hit the boy Munna, because of which, 3 S.B. Civil Misc. Appeal No.1384/2008 National Insurance Co. Ltd. vs. Surjan Singh & Ors. Munna died. Report for this accident was lodged and copy of which has been placed as Ex.1 on record. The report contains quite vague facts which have been interpreted to mean that boy Munna was also traveling on the tractor whereas the site inspection report dated 28.9.2006 clearly explained how the accident occurred and also made it clear that boy Munna did not fell down from the tractor. There is also no reason to disbelieve the statement of AW1 victim's mother Santosh Kanwar who stated that the accident occurred when she was going with deceased Munna and deceased Munna was hit by the tractor. In view of the reasons, I do not find any merits this appeal and the same is hereby dismissed. (PRAKASH TATIA), J. S.Phophaliya

N.I.C.Ltd vs Surjan Singh & Ors on 7 January, 2009

Rajasthan High Court - Jodhpur

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 5611 of 2010(O) 1. V.C. ELIAS, ... Petitioner Vs 1. GOVERNMENT OF KERALA, ... Respondent 2. THE ASSISTANT EXECUTIVE ENGINEER, 3. TAHSILDAR, THALAPPILLY, For Petitioner :SRI.P.SANTHOSH (PODUVAL) For Respondent : No Appearance The Hon'ble MR. Justice P.BHAVADASAN Dated :05/03/2010 O R D E R P. BHAVADASAN, J. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= W.P.(C) No. 5611 of 2010 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 5th day of March, 2010 JUDGMENT In this petition filed under Article 227 of the Constitution of India the petitioner challenges Exts.P7 and P8 orders passed by the Second Addl. Sub Court, Thrissur. The petitioner instituted O.S. No.630 of 2008 before the Second Addl. Sub Court, Thrissur, seeking a mandatory injunction to the respondents to construct the slab described in the plaint schedule in place of the demolished slab or in the alternative to realize an amount of Rs.7 lakhs as damages on account of the illegal demolition of the slab. 2. The petitioner claims that he owns 37 cents of land in Kumaranelloor Village and a building therein. The property is situated much lower than the road on the west. A drain runs near the building of the petitioner. The petitioner states that he approached the 2nd respondent for sanction to construct a retaining wall on both sides of the drain and put a slab across the drain, so as to enable him to use it for  W.P.(C) No. 5611/2010 2 vehicular traffic and also to enter his building. Sanction was granted and work was carried out. The petitioner has incurred huge amount for the same. 3. It is alleged that the 2nd respondent issued notice dated 25-6-2007 directing removal of the said construction. The petitioner approached this Court by filing W.P. (C) No. 16233 of 2007 challenging the action taken by the 2nd respondent. During the pendency of the writ petition and after receiving notice therein, it is alleged, the 2nd respondent demolished the construction. However, the writ petition was disposed of reserving the right of the petitioner to approach the civil court for appropriate relief. Then the suit was filed. 4. The respondents pointed out that they had not demolished any construction for which sanction was given. The case was listed for trial on 19-1-2010. The petitioner examined PW1 and produced Exts.A1 to A6. Commission report was also marked as Ext.C1. The 2nd respondent was examined as DW1. He took a contention that the construction, which was demolished, is not the one  W.P.(C) No. 5611/2010 3 mentioned in the plaint schedule property. He has also deposed in contradiction with the sanction order dated 20-7- 1996. 5. The petitioner, therefore, filed I.A. No.1178 of 2010 to appoint a Commissioner to ascertain whether the construction made by the petitioner in the property is the same for which sanction was granted and whether it was demolished by the respondents. A copy of the application is produced as Ext.P4. He also filed I.A. No.1179 of 2010 for summoning the entire file with respect to the sanction order and also the minutes of the meeting of the Taluk Development Committee held on 2-6-2007. The court below dismissed both the applications. 6. The learned counsel for the petitioner submits that in the light of the deposition given by DW1, it became necessary to take out an Advocate Commissioner and seek a report. The learned counsel also submits that the production of documents summoned are highly necessary in the nature of the contradictory stand taken by the respondents. Fort this purpose the court below ought to have allowed the  W.P.(C) No. 5611/2010 4 applications. 7. The order passed by the court below do not reflect application of mind to the purpose for which applications were filed. They were mechanically dismissed. 8. The petitioner had specifically pointed out that applications became necessary in the light of deposition of DW1 of matters which were not covered by pleadings. He also had stated his purpose, for which applications were filed. 9. There is no justification in dismissing the applications. There is nothing to show that applications lack bona fies. Hence, the orders are unsustainable. 10. The impugned orders are set aside and I.A. Nos.1178, 1179 and 1180 of 2010 are allowed. Necessary steps may be taken by the court below. This writ petition is allowed as above. P.BHAVADASAN, JUDGE. mn.

V.C. Elias vs Government Of Kerala on 5 March, 2010

Kerala High Court

JUDGMENT Mahmood Ali Khan, J. 1. This petition filed under Article 227 of the Constitution of India raises a short but interesting question. The question is whether Delhi School Tribunal (hereinafter the Tribunal) while hearing an appeal of a dismissed employee of a school preferred under Section 8(3) of Delhi School Education Act (in short the Act) was required to refer the appeal to an arbitrator on an application being filed before it by the petitioner under Section 8(1) of the Arbitration & Conciliation Act. 2. The factual matrix of the case, the disclosed by the pleadings of the parties, may be set out summarily as follows. The petitioner is the management committee of an unaided minority school, known as Montfort Senior Secondary School. The respondent Mr. Vijay Kumar was working as an Assistant Teacher in that School. Pursuant to the disciplinary action taken against him the petitioner Managing Committee of the school terminated his services by order dated 04.5.2000 against which the dismissed employee preferred an appeal to the Tribunal under Section 8(3) of the Act. The petitioner filed an application under Section 8(1) of the Arbitration and Conciliation Act, 1996 before the Tribunal. The Tribunal dismissed this application by order dated 07.6.2001, which is impugned in this petition. He extensively quoted the judgment of the Supreme Court in Frank Antony Public School v. Union of India, and the decision of the nine judges Constitution Bench of the Supreme Court in Ahmedabad St.Xaviers College Society v. State of Gujarat, which made the provision of Chapter IV of the Act. barring Section 8(2) applicable even to the employees of an unaided minority schools and held that Section 12 of the said Act is inapplicable to that extent. 3. The petitioner invoked the provision of the Section 8(3) for challenging the order of termination of his service before the Tribunal. The petitioner management of the school on noticing filed an application under Section 8(1) of the Arbitration and Conciliation Act for referring the appeal to an arbitrator in terms of the arbitration clause contained in service rules by virtue of provision of Section 15 of the Act. 4. Before adverting to the argument of the parties, it will be necessary to set out a few relevant provisions of the Act and the Arbitration and Conciliation Act, 1996. Montfort Sr.Sec.School, which was the employer of the respondent teacher was an unaided minority school and was governed by the provisions of the Act so far as they were specifically enacted for such institutions. Section 12 of the Act specifically excluded the application of the provisions of Chapter IV of the Act to a unaided minority institution. This chapter, inter alia, comprised of Section 8. In this case this court is concerned with the provision of Section 8(3) of the Act which provides for an appeal against an order of the dismissal or removal from services or reduction in rank of an employee of recognized private educational institution to the Tribunal constituted in accordance with Section 11 of the Act. To be precise, Sub-section (3) of Section 8 reads as under:- "Any employee of a recognized private school who is dismissed, removed or reduced in rank may, within three months from the date of communication to him of the order of such dismissal, removal or reduction in rank, appeal against such order to the Tribunal constituted under Section 11." 5.The Tribunal, as seen above, is constituted under Section 11 of the Act. Reproduction of this Section may be necessary to determine the exact nature of this Tribunal as whether it is a 'judicial authority' within the ambit of Section 8(1) and other provisions of the Arbitration and Conciliation Act. Section 11 reads as under: Tribunal ..... (1) The Administrator shall, by notification, constitute a Tribunal, to be known as the "Delhi School Tribunal", consisting of one person: Provided that no person shall be so appointed unless he has held office as a District Judge or any equivalent judicial office. (2) If any vacancy, other than a temporary absence, occurs in the office of the presiding officer of the Tribunal, the Administrator shall appoint another person, in accordance with the provisions of this section, to fill the vacancy and the proceedings may be continued before the Tribunal from the stage at which the vacancy is filed. (3) The administrator shall make available to the Tribunal such staff as may be necessary in the discharge of its functions under this Act. (4) All expenses incurred in connection with the Tribunal shall be defrayed out of the Consolidated Fund of India. (5) The Tribunal shall have power to regulate its own procedure in all matters arising out of the discharge of its functions including the place or places at which it shall hold its sitting. (6) The Tribunal shall have power to regulate its own procedure in all matters arising out of the discharge of its functions including the place or places at which it shall hold its sitting. (7) The Tribunal shall for the purpose of disposal of an appeal preferred under this Act have the same powers as are vested in a court of appeal by the Code of Civil Procedure, 1908, (5 of 1908) and shall also have the power to stay the operation of the order appealed against on such terms as it may think fit." 6. Even at the risk of repetition it may be noted here that Section 8(3) of the Act was not available to an employee of a recognized unaided minority school for preferring an appeal before the Tribunal against the order of dismissal, removal from service or reduction in rank. This section was made applicable to such employees by virtue of the judgment of the Supreme Court in Frank Anthony Public School (supra) and Ahmedabad St.Xaviers College Society (supra). 7. The petitioner, however, has strenuously urged that the Tribunal has failed to take notice of the provision of Section 15 of the Act and the contract of service entered into between the parties which contained an arbitration clause. The petitioner has annexed the service rules for the staff of the school which were framed in accordance with Section 15 of the Act. It contained an arbitration clause framed in terms of Clause (e) of Sub-section (3) of Section 15. Section 15 being relevant for determining the question raised in this petition, is reproduced as under:- "Contract of Service ..... (1) The managing committee of every unaided minority school shall enter into a written contract of service with every employee of such school: Provided that if, at the commencement of this Act, there is no written contract of service in relation to any existing employee of an unaided minority school, the managing committee of such school shall enter into such contract within a period of three months from such commencement: Provided further that no contract referred to in the foregoing proviso shall vary to the disadvantage of any existing employee the term of any contract subsisting at the commencement of this Act between him and the school. (2) A copy of every contract of service referred to an Sub-section(1) shall be forwarded by the managing committee of the concerned unaided minority school to the Administrator who shall, on receipt of such copy, register it in such manner as may be prescribed. (3) Every contract of service referred to in Sub-section(1) shall provide for the following matters, namely: (a) the terms and conditions of service of the employees, including the scale of pay and other allowances to which he shall be entitled; (b) the leave of absence, age of retirement, pension and gratuity, or, contributory provident fund in lieu of pension and gratuity, and medical and other benefits to which the employee shall be entitled; (c) the penalties which may be imposed on the employee for the violation of any Code of Conduct or the breach of any term of the contract entered into by him; (d) the manner in which disciplinary proceedings in relation to the employee shall be conducted and the procedure which shall be followed before any employee is dismissed, removed from service or reduced in rank; (e) arbitration of any dispute arising out of any breach of contract between the employee and the managing committee with regard to..... (i) the scales of pay and other allowances, (ii) leave of absence, age of retirement, pension, gratuity, provident fund, medical and other benefits, (iii) any disciplinary action leading to the dismissal or removal from service or reduction in rank of the employees; (f) any other matter which, in the opinion of the managing committee ought to be, or may be, specified in such contract. 8. This provision specifically applies to unaided minority schools. Montfort Sr.Sec.School, of which the petitioner is the managing committee is one such school. It has entered into a contract of service with the respondent in the form of the service rules framed by it which are applicable to all its employees. Service rules are annexure-P to the petition and are at page 54 of the paper book. Inter alia, it provided the code of conduct, disciplinary proceedings for violation of it and the penalties which could be imposed on the delinquent employee. Clause 31 of rules provided as follows: "If the employee feels aggrieved against the decision of the Discipline Committee or of the managing Committee, he has the right to appeal to the arbitrator, appointed as such, by the Society. His decision shall be final and binding on both parties". It is not disputed that both the parties, the petitioner management and the respondent teacher were subject to this rule and it formed part of the contract of service between the respondent and the petitioner management committee of the school. 9. The contract of service between the parties, as such, has a arbitration clause. In the event of termination of service of employee consequent to disciplinary action against him, the affected employee had a right to prefer an appeal to the arbitrator which was to be appointed by the managing committee. This clause was inserted in the rules in accordance with Sub-section (3) of Section 15 of the Act. In accordance with this provision the contract of service between the employee and the unaided minority school was to provide for, inter alia, for the arbitration of the dispute arising out of the breach of contract between the employee and the managing committee with regard to "any disciplinary action leading to the dismissal or removal from service or reduction in rank of the employees". In this case the respondent has been terminated from the service on account of a breach of contract between the parties which led to the disciplinary action against him. Pursuant to the disciplinary enquiry report, he was dismissed and removed from the service. 10. Referring to the judgment of the Division Bench of this court in Union of India v. Bharat Engineering Corporation 2nd (1997) II Delhi 57 counsel for respondent has argued that the arbitration agreement as defined by Section 2(b) of the Arbitration and Conciliation Act is a bilateral agreement and not unilateral. It is held in this case that an arbitration agreement as defined in Clause(a) of Section 2 of the Arbitration Act 1940 the agreement has to be bilateral and both the parties must have been given right of reference. The agreement should not be contingent or conditional or confer option to a party but contract of option becomes an arbitration agreement in exercise of that option. Argument of counsel is that Sub-clause(iii) of Clause(e) of Sub-section(3) of Section 15 and Rule 31 of the service rules confers right of appeal to only one of the parties, i.e. the employee who has been dismissed or removed from service or reduced in rank, therefore, it is not a bilateral agreement. He has argued that the definition of the arbitration agreement given in Section 2(1)(b) read with Section 7 of Arbitration and Conciliation Act, 1996 is in no way different and distinguishable from an arbitration agreement defined under Clause(a) of Section 2 of the old Arbitration Act, therefore, the ratio of the judgment of the Division Bench aforesaid is equally applicable to it. It is argued that it is not an arbitration agreement envisaged in the Arbitration and Conciliation Act. The Tribunal had no power and jurisdiction to refer the appeal to an arbitrator under Section 8(1) of the Arbitration and Conciliation Act for adjudication in accordance with the said Act. 11. Conversely, argument of counsel for petitioner is that is being a statutory arbitration agreement, the provisions of Arbitration and Conciliation Act are equally applicable over such an arbitration agreement, therefore, the Tribunal had no option but to refer the appeal to the arbitrator by virtue of Section 8(1) of the Arbitration and Conciliation Act and it had no jurisdiction to decide the appeal and proceeding before him would be barred by Section 5 of the Arbitration and Conciliation Act. 12. Before proceeding further to discuss the matter, it will be necessary to produce the provisions of Section 5 and 8 of the Arbitration and Conciliation Act. They are extracted below:- "5. Extent of judicial intervention ..... Notwithstanding anything contained in any other law for the time being in force, in matters governed by this Part, no judicial authority shall intervene except where so provided in this Part. 8. Power to refer parties to arbitration where there is an arbitration agreement ..... (1) A judicial authority before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party so applies not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration. (2) The application referred to in Sub-section(1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof. (3) Notwithstanding that an application has been made under Sub-section(1) and that the issue is pending before the judicial authority, an arbitration may be commenced or continued and in arbitral award made. 13. The jurisdiction of civil court in dealing with any dispute relating to or arising out of an arbitration agreement is clearly restricted and barred to the extent provided in Section 5. If there was an arbitration agreement, the provisions of Arbitration and Conciliation Act are attracted and the civil court will deal with those dispute only to the extent which is permitted by the special statute relating to the arbitration and proceedings arising there from. Section 8 on the other hand enjoins upon "a judicial authority" before which an action is brought in a matter which is a subject of an arbitration agreement to refer the parties to the arbitration. The only condition precedent is the parties should apply not later than submitting the first statement on the subsistence of the dispute before that authority. 14. One more section of Arbitration and Conciliation Act needs attention. It is Section 2(4), which embraces a statutory arbitration within the ambit of an arbitration agreement over which the provisions of the Arbitration and Conciliation Act are applicable. It is as under:- "2(4). This pat except Sub-section(1) of Section 40, Sections 41 and 43 shall apply to every arbitration under any other enactment for the time being in force, as if the arbitration were pursuant to an arbitration agreement and as if that other enactment were an arbitration agreement, except in so far as the provisions of this Part are inconsistent with that other enactment or with any rules made there under." 15. A reading of provision of Section 15 of the Act and the provisions of Section 2(4) of the Arbitration and Conciliation Act clearly show that Rule 31 of Service Rule was a statutory arbitration agreement between the parties. 16. A bilateral arbitration is the conscious act of the parties to that agreement. On the other hand a statutory arbitration is the creation of statute. It does not require consent of the parties for its application. Section 15(3)(e)(iii) is one such statutory arbitration incorporated in the Service Rule which regulate the conditions of service of the respondent. Therefore, merely because right of appeal to an arbitration is given only to the employee it will not take it out of the purview of 2(4) of the Arbitration and Conciliation Act. The argument of the counsel for the respondent to the contrary is not tenable and is repelled. 17. The pertinent question next arises whether the Tribunal is a "judicial authority" within the meaning of Sub-section(1) of Section 8 of the Arbitration and Conciliation Act. The expression "judicial authority" has not been defined under the said Act. The argument of counsel for petitioner is that the Tribunal has all the trapping of a court. The District Judge or an equivalent judicial officer is the presiding officer of the Tribunal, the expenditure incurred on the Tribunal is defrayed from the Consolidated Funds of India, the Tribunal is vested with the power to regulate its own produce and for this purpose of disposal of an appeal preferred under Section 8(3) of the Act the Tribunal is vested with the same powers as are vested in a court of appeal under the Civil Procedure Code. It also has power to stay the operation of the order appeal against. He, therefore, urged that the bare reading of the provision of Section 11, which has been reproduced in forgoing paragraphs would show that the Tribunal has all the necessary powers which an appellate civil court has for deciding an appeal and pass interim stay orders. He also invited attention to Section 25 of the Act which barred the jurisdiction of the civil court "in respect of any matter in relation to which..... or an authority appointed or specified by or under this Act, is empowered by or under this Act to exercise any power.....". According to him finality has been attached to the order of the Tribunal subject to any judicial review under Article 26/227 or Article 32 of the Constitution of India. He sought support to his arguments from the judgment of a Division Bench of Punjab and Haryana High Court in A.L. Mehra v. The State which after elaborate discussion on various judgments and authorities explained the meaning of the words "act judicially" and "judicial power". Since provision of Section 11 of the Act clearly vest all the powers of a civil appellate court in the Tribunal while dealing with an appeal preferred before it under Section 8(3) of the Act, I need not discuss in detail as to who were the judicial authority apart from the courts. Suffice to mention a few cases which deal with the judicial powers and the administrative powers exercised by an authority. 18. In Regina John M'Evoy v. Dublin Corporation (1878) 2 LR Ir.371(D) it was observed as under:- "the term 'judicial' does not necessarily mean acts of a judge or legal tribunal sitting for the determination of matters of law, but for the purpose of this question a judicial act seems to be an act done by competent authority, upon consideration of facts and circumstances, and imposing liability or affecting the rights of others." In Huddart Parker and Co. v. Moorehead , (1909) 8 CLR 330(E) judicial powers were defined as under:- "The words 'judicial power' as used in Section 71 of the Constitution mean the power which every sovereign authority controversies between its decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property. The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action". In Rex v. London County Council (1931) 2 KB 215 (F) judicial authority was defined as under:- "It is not necessary that it should be a Court in the sense in which this Court is a Court; it is enough if it is exercising, after hearing evidence, judicial functions in the sense that it has to decide on evidence between a proposal and an opposition; and it is not necessary to be strictly a Court." 19. In Royal Aquarium and Summer and Winter Garden Society, Limited v. Parkinson, (1892) 1 QB 431 dealing with the meaning of the word 'judicial' it was observed as under: "The word 'judicial' has two meanings. It may refer to the discharge of duties exercisable by a judge or by justices in Court, or to administrative duties which need not be performed in court, but in respect of which it is necessary to bring to bear a judicial mind that is, a mind to determine what is fair and just in respect of the matters under consideration." A full Bench of Nagpur High Court in Bhailal v. Additional Deputy Commr. Akola and Anr. AIR 1953 Nagpur 89 made following observation: "From this quotation it is clear that the term 'judicial' embraces even the acts of special tribunals which though administrative in character perform functions resembling those of Courts." 20. As such, when an authority other than a court in the ordinary sense, is in discharge of the duties expected to act fairly and honestly or exercises some of the powers akin to the powers of a civil court it may not be a court in its strict sense but it would essentially fall within the definition of a judicial authority. It is bound by law to act on the facts and circumstances as determined upon the enquiry in which a person who is to be affected is given full opportunity to place his case. Section 11(6) of the Act vested in the Tribunal the power to (i) give the parties opportunity of presenting their dispute orally or in writing; (ii) consider the evidence produced by the parties which culminated into the order subject matter of the appeal or produced in appeal; (iii) consider all the questions of law to which the parties were subjected which were applicable in the case of the parties; and (iv) give a verdict disposing of whole of the matter. The decision which such a Tribunal gives is a judicial decision. Support to this view can be had from the judgment of the Supreme Court in Bharat Bank v. Employees of Bharat Bank wherein Industrial Tribunal was held to have all necessary attributes of a court of justice and; Parduman Singh v. State of Punjab wherein it was held that a Custodian of Evacuee Property has to decide the question of cancellation of allotment under Section 26(1) of Administration of Evacuee Property Act by a judicial decision. In Canara Bank v. Nuclear Power Corporation of India Ltd. (1995) 3JT SC42, the Supreme Court held that a Company Law Board was a court exercising the functions of the court. No challenge has been made to the argument of counsel for petitioner that the Tribunal is a judicial authority within the meaning of Section 8(1) of the Arbitration and Conciliation Act. 21. Now interesting but crucial question is whether the appeal filed by the respondent was required to be referred to the arbitrator appointed in terms of service rules framed under Section 15(3) of the Act or the Tribunal could proceed to hear appeal preferred before him under Section 8(3) of the Act. Section 15 provides hearing of appeal by an arbitrator whereas Section 8(3) give right to the Tribunal to hear such appeal. Needless to mention that the judgment of the Supreme Court which held that the provision of Chapter VI of the Act except the provisions of Section 8(2) was applicable to the employees of an unaided minority school i.e. the parties to this case is the law of the land and this court is bound by it. Therefore, it shall be assumed that the provisions of Section 8(3) was available as an alternative remedy to the respondent for challenging the order of his termination/dismissal from service. 22. The Supreme Court in the judgment of the Frank Anthony Public School (supra) and the Nine Judges Constitution Bench in Ahmedabad St.Xaviers College Society (supra) had taken note of the scheme of the Act, various provisions which were applicable to the recognized un-aided minority schools and to others. The court was very much conscious of the provision of Section 15 of the Act, which provided for a clause in the service contract regarding hearing of the appeal by an arbitrator After keeping in view of all the provisions of the Act the Supreme Court laid down that the provision of Section 8(3) of the Act was applicable to the employees of unaided minority school also. At first glance the provision of Section 15 and 8(3) of the Act seems to be self-contradictory but if one reads the judgments of the Supreme Court in the above referred two cases carefully it is not difficult to comprehend the reasons for giving benefit of Section 8(3) to the employees of recognized unaided minority schools at par with their counterpart in private schools. Juxtaposed these two provisions serve the same purpose. One provides for an appeal to an arbitrator and the other allows a dissatisfied employee to approach the Tribunal for judicial scrutiny of the disciplinary action. They may not be construed to be contradictory in true sense but two alternative remedies for achieving same object. They, of course, cannot be resorted to simultaneously or one after the other and are mutually exclusive. Once a remedy provided under Section 15 or 8(3) is exhausted the effected party will be debarred from invoking the other remedy for redressing its grievance. Both the statutory provisions give right of appeal only to one of the parties to dispute i.e., the dissatisfied employee and once the right given is exercised the opposite party cannot scuttle that right by raising objection that right should have been exercised in the manner or procedure provided in the alternative provision. 23. Can the provision of Section 8(3) of the Act which is also applicable to the case of the respondent could be made nugatory on the plea of the petitioner that the dispute was referable to an arbitrator? The respondent had two options; one given by Section 15 read with the service contract framed in conformity with it and the second which gave a right to challenge the dismissal / termination from service before a judicial authority in an appal. Once he had exercised this option, to my considered view, it would not be open to the petitioner to challenge this appeal on the ground that the dispute could have been referred for arbitration under another provisions of the Act. The Tribunal, therefore, was right in rejecting the application of the petitioner in the light of the judgment of the Supreme Court in Frank Anthony Public School(supra) and Ahmedabad St.Xaviers College Society (supra). There is no legal infirmity in this order. 24. The petition is filed under Article 227 of the Constitution of India which gives this court discretionary jurisdiction of superintendence and control over subordinate courts and the Tribunals. High Courts power of superintendence is exercised to keep the subordinate courts and Tribunals within the bounds of their authority and to see that they do what their duty requires and that they do it in a legal manner. The jurisdiction of superintendence over courts and Tribunal is exercised in exceptional or special circumstances and where it would be appropriate to interfere with the order. Mere wrong order without anything more is not enough to attract this jurisdiction. In the instant case it cannot be said that the learned Tribunal has exceeded his jurisdiction or his order is not warranted by law. His order is in accordance with judgment of Supreme Court. There is no reason for this court to interfere with it. For the reasons stated above. I do not find any merit in the petition. It is dismissed.

Author: M A Khan

The Management Committee Of ... vs Mr. Vijay Kumar And Ors. on 4 April, 2002

Delhi High Court

Court No. - 29 Case :- WRIT -- A No. -- 25260 of 2010 Petitioner :- Ram Pratap Singhal Respondent :- State Of U.P. And OthersPetitioner Counsel :- Siddharth Khare,Sri. Ashok Khare Respondent Counsel :- C. S. C. Hon'ble Sunil Ambwani J. Hon'ble Kashi Nath PandeV.J. On the request made by learned counsel for the petitioner, the case is directed to be listed in the next cause list. Order Date :- 12.7.2010 A. Verma

Ram Pratap Singhal vs State Of U.P. And Others on 12 July, 2010

Allahabad High Court

Megha 502_sa_709_2018.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.709 OF 2018 WITH CIVIL APPLICATION NO.1495 OF 2018 WITH CIVIL APPLICATION NO.1493 OF 2018 IN SECOND APPEAL NO.709 OF 2018 Manoj Gangadhar Burkule and Anr. ...Appellants Versus Chandrabhagabai Pandurang Shevare and Ors. ...Respondents ..... Ms Gunjan Shah i/b. Mr. K.P. Shah for the Appellants. Mr. Milind M. Sathaye for the Respondent No.3. CORAM : SMT. ANUJA PRABHUDESSAI, J. DATE: 26th FEBRUARY, 2019. P.C.:- Not on board. Upon being mentioned on the ground of urgency, taken on board. 2. Ad-interim relief granted by order dated 26 th October, 2018 to continue till the next date of hearing. Stand over to 19.3.2019. (SMT. ANUJA PRABHUDESSAI, J.) Megha 1/1 ::: Uploaded on - 28/02/2019 ::: Downloaded on - 21/03/2019 19:44:39 :::

Manoj Gangadhar Burkule & Anr vs Chandrabhagabai Pandurang ... on 26 February, 2019

Bombay High Court

JUDGMENT Nagendra Rai and S.K. Chattopadhyaya, JJ. 1. With the consent of the parties, this application is being disposed of at the stage of admission itself. 2. The petitioner has, field the present writ application challenging certain provisions of the Employees' Pension Scheme, 1995. 3. In order to appreciate the rival contentions raised by the parties it is necessary to state briefly the facts of the case. The petitioner was an employee of Heavy Engineering Corporation and superannuated on 1.2.1992. At the time of his retirement the Family Pension Scheme, 1971 framed under the provisions of Section 6A of the Employees Provident Fund (Miscellaneous Provisions Act, 1952 (hereinafter referred to as the Act) was applicable. On 16th November, 1995 the Government framed the Employees Pension Scheme, 1995. The 1971 Scheme ceased to operate with effect from 16th November, 1995 in view of Paragraph 44 of the 1995, Scheme. According the sub-para 2 (a) of Paragraph 1 this scheme came into force on the 16th day of November, 1995. Paragraph 2 (b) provides that subject to the provisions of this scheme the employees have an option to become the members of the Scheme with effect from the 1st April, 1993. Para 7 gives option to certain classes of employees to join the Scheme. This option has been given to those employees only who were out of employment on or after 1st April, 1993. Sub-para 2 (b) of para 1 and para 7 are quoted hereinbelow: 1. Short title, commencement and application.--(1) This scheme may be called the Employees' Pension Scheme, 1995. 2 (b). Subject to the provisions of this scheme the employees have an option to become the members of the scheme with effect from the 1st April, 1993. 7. Option for joining the scheme.--(j) Every employee who is a member of the Employees' Provident Fund or of Provident Funds of factories and other establishments exempted under Section 17 of the Act and/or Paragraph 27-27-A of the Employees' Provident Fund Scheme, 1952 but is not a member of the Family Pension Fund immediately before the commencement of this Scheme, shall have the option to join this scheme. (2) Employees referred to in sub-paragraph (1) and the members of the Family Pension Scheme, 1971, who were out of employment on or after the 1st April, 1993 may also exercise the option to become members of this scheme. (3) The option referred to in sub-paragraphs (1) and (2) shall be exercised within a period of six months from the 16th day of November, 1995. 4. According to the counsel for the petitioner the provisions providing option to certain classes of employees from 1st of April, 1993 is an arbitrary one because its being a beneficial scheme, it should apply to all the employees who were out of employment prior to coming it no force of the said scheme. His grievance is that the date fixed for exercising option is arbitrary and on this ground sub-paragraph 2 (b) of Paragraph 1 and Paragraph 7 of the said Employees' Pension Scheme have to be struck down on the ground of arbitrariness for the reason that it has no nexus with the object of the scheme. 5. From the counter affidavit it appears that the Employees Pension Scheme was introduced in the Parliament sometimes in March, 1993 and it was to be implemented from 1.4.1993. However, the bill could not be passed and later on an ordinance was progulmated from implementing the said scheme in 1995 to make it effective from 16th day of November, 1995. As the scheme was originally planned to be made applicable from 1.4.93 an option was given to the employees retiring in between 1.4.93 to 15.1.95 to avail the benefits of the Employees' Pension Scheme, 1995. 6. In support of his submission, counsel for the petitioner has relied on a decision rendered in the case of D.S. Nakara and Ors. v. Union of India, wherein it was held that classification in revised pension formulla between pensioners on basis of date of retirement is arbitrary and violative of Article 14 of the constitution. He has also relied on the decision in the case of Premilobail Vishnu Dixit v. State of Maharashtra , wherein the Apex Court relying upon the law laid down in Nakara's case (supra) held that if widows and dependents of deceased Government servants since after September, 22, 1977 would be entitled to benefits of family pension scheme without the obligation of making contribution, those widows who were denied the benefits on the ground that the government servants having not agreed to make the contribution, could not be differently treated because that would be introducing an invidious classification among those who would be entitled to similar treatment. 7. From the facts of Nakara's case it will appear that an artificial date was fixed classifying the retiring employees into two different classes though they were governed by the same rule and were similarly situated. That case was considered by a constitution Bench of the Apex Court in Krishna Kumar's case reported in 1990 (4) SCC 207 and it was held that different dates of retirement benefits can be fixed for the employees retiring on different dates. Recently the Apex Court considered the question whether different retiral benefits can not be conferred on the employees retiring on different dates in the case of State of Rajasthan v. Savanivatra Karmachari Hitkarai Samittee, . It was held therein that it is permissible to introduce different retirement benefits for the government servants on the basis of the date of retirement. The only requirement is that the government has to prescribe the date in a reasonable manner having regard to the relevant facts. It is relevant to quote paragraph 22 of the said judgment which reads as follows: After considering the respective contentions made by the learned Counsel for the parties, it appears to us that after the impugned decision was made by the Rajasthan High Court, this Court has considered that import of the decision rendered in D.S. Nakara case. This Court has noticed the ratio of D.S. Nakara case as indicated in Krishana Kumar case and in Indian Ex-Service League case and also in Rajasthan Pensioner Samaj case, it has been clearly indicated by this Court that the Government servant can be governed by different sets of retiral benefit rules with reference to their holding of office from cut off date. In Krishana Kumar case it has been indicated that in D.S. Nakara case this Court considered a case where an artificial date was specified classifying the retires into two different classes even though they where governed by the same rules and were similary situated. Such classification where both the grounds were governed by the same rules amounted to deprivation of one group of the benefit of liberalisation of pension rules. It was only in that situation it was held in D.S. Nakara case that situation it was held in D.S. Nakara case that specification of the date from which the liberalisation pension rules were to come into force was arbitrary. This Court, in D.S. Nakara case clearly indicated that it was not a new scheme but only a revision of the existing scheme and it was not a new retiral benefit, but it was a case of upward revision of existing benefit. In D.S. Nakara case it was pointed out that if it was wholly a new concept, a new retiral benefit, one could have appreciated an argument that those who had already retired could not accept it. The constitution Bench in Krishena Kumar case has upheld different sets of retiral benefits being made applicable to the employees retiring prior to 1..4. 1977 and retiring thereafter. It has been indicated by the Constitution Bench in Krishena Kumar case that any argument to the contrary would mean that the Government can never change the condition of service relating to retiral benefits w.e.f. a particular date. It has, however, been pointed out that the State cannot back a date out of its hat but it has to prescribe a date in a reasonable manner having regard to the relevant facts and circumstances. 8. Law is well settled that retirement benefits can be fixed to the government servants on the basis of their date of retirement provided classification is not arbitrary and irrational. In the present case the enforcement of the 1995 scheme has been made from 16th day of November, 1995. As the bill was introduced in the Parliament in the year, 1993 and the same could not be passed, the Central Government with a view to give benefits to those employees also who could not avail of the beneficial period of non- passing of the bill, has given the option to become member of the scheme. In our view, giving option to the employees retired from the back date i.e. from 1st of April, 1993, in the facts of the case is reasonable and does not suffer from any arbitrariness. This apart, so far the petitioner is concerned, he retired while the earlier scheme was in force and the present scheme has come into force in 1995, and, as such, it cannot be said that his interest." in any way is prejudiced by not allowing the benefits of the present scheme to him. The only point raised on benefit of the petitioner, in our view, has no substance. 9. In the result, we find no merit in this application which is, accordingly, dismissed.

Md. Sohail Shamsi vs Union Of India (Uoi) And Ors. on 7 February, 1997

Patna High Court

Central Information Commission ***** No.CIC/OK/A/2008/00334 Dated: 14 August 2008 Name of the Appellant : Ms. Renu Chatterjee H.No 652/3, Subhash Nagar Mughalsarai, Chandauli, Name of the Public Authority : East Central Railway Background: Smt. Renu Chatterjee of Mughalsarai-Chandauli filed an RTI-application with the Public Information Officer, East Central Railway, Danapur on 5 January 2007, seeking information relating to the non-payment of Provident Fund dues of the Appellant's husband who had retired from service on 1 August 1974. 2. The PIO vide his letter dated 26 February 2007 replied to his RTI- application. Not satisfied with the reply of the PIO, the Appellant filed an appeal with the first Appellate Authority on 13 June 2007 who vide his letter dated 22 August 2007 replied to it. Thereafter, the Appellant approached the Central Information Commission with a Second Appeal on 2 November 2007. 3. The Bench of Dr. O.P. Kejariwal, Information Commissioner, heard the matter on 6 August 2008. 4. Shri Bipin Kumar Singh, Sr. DPO & PIO and Shri Radhey Raman, ADRM & Appellate Authority, represented the Respondents. 5. The Appellant, Smt. Renu Chatterjee, was represented by Smt. A. Chatterjee. Decision: 6. The Commission heard both the sides: the Appellant through audio conference and noted that the widow of an employee of the Department wanted details of PF dues of her late husband. Accordingly to the Respondents, the concerned employee had retired in 1974 and his PF dues paid in 1986. According to the Appellant, on the other hand, this had not been received by her and wanted to know the cheque number under which the payment had been made. During the hearing, the Respondents stated that since the retention of such records as per the Department's standing guidelines was 10 years, they could not provide information beyond 1996. However, they did confirm that the cheque had been made and that this was entered in their CO7 Ledger which indicated the amount which was paid. However, as the case was beyond the period of retention, they were not able to provide the concerned vouchers. 7. They further stated that they maintained a register for the unpaid vouchers and that this cheque/payment was not recorded in this. Hence, under all presumptions, according them, the amount had been paid. According to the RTI-application, the Appellant wanted information as to "under whose pleasure such an unlawful act for non-payment of PF has been committed and request that it should be immediately disbursed as my legitimate right". 8. It is not for the Commission to issue orders for relief of such grievances and the Appellant is advised to take up the issue with the senior officials of the Department itself. 9. The Commission now directs the Respondents to open up all the documents/files including the ones mentioned above to the Appellant. This may be done by 5 September 2008 for which both the parties may fix up a time mutually convenient. 10. The compliance of this Order may be communicated to the Commission either in person or by phone (No. 26185088) on 5 September 2008 at 2.45 p.m. 11. The Commission ordered accordingly. Sd/- (O.P. Kejariwal) Information Commissioner Authenticated true copy: Sd/- (G. Subramanian) Assistant Registrar Cc:

Ms. Renu Chatterjee vs East Central Railway on 14 August, 2008

Central Information Commission

Rs. Rs. The amount of refund on account of appellate order 14,28,934 Less: Refund already allowed on provisional audit 5,69,879 Less: Refund allowed as per order of amend- ment made Under Section 154 on 29-7-1982 before receipt of the appel- late order 1,41,084 7,10,963 7,17,971 ORDER S.K. Chander, Accountant Member 1. This appeal by the assessee is directed against the order of the, learned Commissioner (Appeals) dated 3-8-1984 relating to the assessment year 1979-80. 2. In order to appreciate the grievances projected in the cross appeals, it would be necessary to record the factual backdrop of the case, which is not in dispute. 3. The assessee before us is Dalmia Dairy Industries (P.) Ltd. having its head office at 11, A.B.C., Atma Ram House, 1-Tolstoy Marg, New Delhi. The assessee is assessed to tax under the Income-tax Act, 1961 ('the Act') by the ITO. For the assessment year 1979-80, the assessee filed the return of its income on 30-6-1979 declaring income of Rs. 1,26,19,211. On the basis of this return, the ITO made a provisional assessment under Section 141A of the Act on 1-9-1979. This resulted into a refund of Rs. 5,69,879 after taking into consideration the payment of advance tax of Rs. 78,54,000 and tax deducted at source amounting to Rs. 3,473. 4. The assessee follows the previous year ending on 30th September. The original regular assessment was made by the ITO on 22-4-1982 under Section 143(3) of the Act determining total income of the assessee at Rs. 1,35,64,870. On the basis of this assessment and considering the advance tax paid and the tax deducted at source, as reduced by the refund of Rs. 5,69,879 allowed in the provisional assessment made on 1-7-1979, the ITO determined the tax payable at Rs. 5,46,170. This regular assessment made by the ITO was challenged in appeal before the first appellate authority. The first appellate authority made the appellate order on 31-5-1983. In order to give effect to this appellate order, the ITO made an order on 6-8-1983. This appears at pages 1 to 5 of the assessee's paper book. In the ITNS-150A which formed part of this order, the ITO computed the amount of refund payable to the assessee at Rs. 7,17,971 as under: 5. On receipt of this refund, the assessee made an application to the ITO on 30-8-1983 appearing at page 6 of the paper book and made a prayer that in working out the quantum of refund of Rs. 7,17,971, the ITO had not given or taken into consideration the interest under Sections 214 and 244 of the Act to which the assessee was entitled in accordance with the decision of the Delhi High Court in the case of National Agricultural Cooperative Marketing Federation of India Ltd. \. Union of India [1981] 130 ITR 928. On receipt of this letter, the ITO replied by his letter dated 7-10-1983 appearing at page 7 of the paper book and pointed out to the assessee that, "In this connection, you are requested to kindly furnish bank guarantee and an undertaking to the effect for the refund of the amount of the interest to be given to you in case the Delhi High Court's view is not upheld by the Supreme Court". The ITO further observed that after the assessee furnished the necessary bank guarantee and undertaking the interest payable as per the Delhi High Court judgment will be given to the assessee. On receipt of this letter, the assessee responded by a letter dated 11-10-1983/12-10-1983. In this letter, the assessee did not accept the condition about the bank guarantee and undertaking required by the ITO but asserted its claim that in accordance with law, the refund in accordance with the judgment of the Delhi High Court should be allowed to the assessee without laying any conditions, whatsoever, as no such conditions for issuing refund were provided in law. 6. Thereafter, the ITO made an order under Section 154 of the Act on 24-11-1983 appearing at page 9 of the assessee's paper book. In this order, the ITO held that the assessee's claim that there was a mistake apparent from record for not allowing interest as claim under Section 214, while passing an order giving effect to the appellate order, was not acceptable : 'As there are conflicting judgments on this issue'. The application was rejected. 7. This order of his was challenged in appeal before the Commissioner (Appeals). 8. The learned Commissioner (Appeals) was required to consider various grounds taken up by the assessee as per grounds of appeal, the copy of which has been filed along with memorandum of appeal before us. According to the learned counsel for the assessee, he had projected before the learned Commissioner (Appeals) that omission of the ITO to apply a particular provision of law, which was applicable to the facts of the case is a mistake apparent from record covered by the provisions of Section 154 in view of the ratio of the Supreme Court judgment in the case of M.K. Venkatachalam, ITO v. Bombay Dyeing & Mfg. Co. Ltd. [1958] 34 ITR 143. The learned counsel for the assessee had raised other grounds which in a nut shell project the grievance that the ITO was in error in not allowing to the assessee, interest on the sum of Rs. 7,17,971 at the time he made the order giving effect to the order of the appellate authority on 6-9-1983. The learned Commissioner (Appeals) has in his impugned order dealt with the grounds raised before him. However, insofar as the legal aspect of whether an omission on the part of the ITO to apply a provision of law makes the said order, an order containing a mistake apparent from record, was not specifically dealt with. The learned Commissioner (Appeals) has otherwise dealt with the issues projected before him in a detailed manner. The order of the learned Commissioner (Appeals), however, went against the assessee, as he held the view that despite the judgment of the Hon'ble Delhi High Court referred to above, he could not agree to the claim made by the assessee, because, 'A debatable issue on this proposition has come to be created by the Allahabad High Court in the case of J.K. Synthetics Ltd. v. O.S. Bajpai, ITO [1976] 105 ITR 864'. Finally, the learned Commissioner (Appeals) upheld the order of the ITO dated 6-8-1983 refusing to grant interest to the assessee on the sum of Rs. 7,17,971 as worked out and shown in this order. In coming to this conclusion, he, inter alia, referred to the judgment of the Supreme Court in the case of T.S. Balaram, ITO v. Volkart Bros. [1971] 82 ITR 50. 9. In appeal before us, the learned counsel for the assessee submitted that the impugned order of the learned Commissioner (Appeals) is not in accordance with law because he has failed to appreciate the ratio of the judgment of the Delhi High Court and the settled position of law that any authority working under the jurisdiction of a particular High Court is bound to follow the judgment of the said High Court notwithstanding the contrary judgments, if any, of any other High Court whose jurisdiction does not apply to the case of the assessee. In support of this proposition the learned counsel for the assessee relied upon the ratio decidendi of the following judgments. They are : K. Subramanian, ITO v. Siemens India Ltd. [1985] 156 ITR 11 (Bom.), Omega Sports & Radio Works v. C1T [1982] 134 ITR 28 (All.) and CIT v. Ramjibhai Hirjibhai & Sons [1977] 110 ITR 411 (Guj.). It was submitted that after the appellate order the assessee had become entitled to refund of the amount of Rs. 7,17,971. In determining this amount refundable to the assessee, the ITO had already set off two amounts refunded to the assessee earlier at the time of making a provisional assessment and an order of amendment under Section 154 as already mentioned above. The amount actually refundable to the assessee on the basis of the order of the ITO dated 6-8-1983 was Rs. 14,28,934 and it is only after deduction of the sum of Rs. 7,10,963 refunded on account of provisional assessment and order of amendment that the sum of Rs. 7,17,971 remained refundable. According to him, the assessee was entitled to interest on this amount in the clear cut ratio of the Hon'ble Delhi High Court judgment in the case of National Agricultural Co-operative Marketing Federation of India Ltd. (supra). It was contended by him that the learned Commissioner (Appeals) failed to appreciate the legal proposition that even if there were conflict of judicial pronouncements on a particular point of law, the authority working under a particular High Court cannot but follow the judgment of that High Court. The Commissioner (Appeals) was, therefore, in error, according to him, in refusing to give to the assessee the relief as claimed on the proposition that considering the judgment of the Allahabad High Court on the issue, the point brought in appeal before him by the assessee was debatable; 10. As pointed out earlier, he also made a grievance of the learned Commissioner inadvertently not pronouncing his opinion on the issue whether the omission of the ITO to apply a particular provision of law made his order an order containing a mistake apparent from the face of record in view of the judgment of the Supreme Court in the case of Bombay Dyeing & Mfg. Co. Ltd. (supra). It was, thus, submitted that the learned Commissioner (Appeals) erred in allowing to the assessee interest which was admissible on the facts of the case and the law applicable thereto under Section 214. 11. The learned Commissioner (Appeals), in disposing of the appeal of the assessee had dwelt on the issue that the judgment of the Hon'ble Delhi High Court in the case of National Agricultural Co-operative Marketing Federation of India Ltd. (supra) was subjudice. It is common ground that at the point when this issue was to be considered by the ITO and when it was considered by the learned Commissioner (Appeals) there was an appeal to the Supreme Court against the judgment of the Hon'ble Delhi High Court in the case of National Agricultural Co-operative Marketing Federation of India Ltd. (supra). The learned counsel for the assessee submitted that such a situation should not have abstained or debarred the learned Commissioner (Appeals) from adjudicating upon the issue because, it has been held by the Bombay High Court that even if the judgment of the High Court is not accepted by the parties and further proceedings on the same are pending the authorities working under the jurisdiction of the said High Court are duty bound to follow the said judgment. In this regard, he placed reliance upon the Bombay High Court judgment in the case of Siemens India Ltd. (supra), 12. The learned senior departmental representative, on the other hand, submitted that the assessee cannot draw any support from the ratio decidendi of the judgment of the Hon'ble Delhi High Court in the case of National Agricultural Co-operative Marketing Federation of India Ltd. (supra) because that judgment turned upon its own facts, which were peculiarly different from the facts of the case of the assessee. In this regard, the learned departmental representative pointed out that in the case of National Agricultural Co-operative Marketing Federation of India Ltd. (supra) there was a return filed by the assessee showing nil income. On the basis of the assessment raised by the ITO and taking into consideration, the advance tax paid, refund had become payable. In that case, there was no provisional assessment and there was no order of amendment under Section 154. Therefore, on the peculiar facts of that case, the Hon'ble Delhi High Court held that the assessee had to be allowed interest on the amount refunded to the assessee on the basis of order made by the ITO on appeal made by the assessee. In order to elaborate this argument, the learned departmental representative specifically projected to us that in the case of the assessee a refund of Rs. 5,69,879 had been allowed at the time of provisional assessment. He further pointed out that a refund of Rs. 1,41,084 has been allowed at the time the order of amendment under Section 154 was made by the ITO on 29-7-1982. Therefore, according to him, the assassee was not entitled to interest on the balance amount of Rs. 7,17,971. In order to support these contentions, he brought to our notice, the provisions of Section 214(1) and 214(2). In this particular aspect of his submissions, he emphasised the words used in Section 214(2), 'under this Chapter'. In his submission, there is a judgment of the Bombay High Court in the case of CIT v. Carona Sahu Co. Ltd. [1984] 146 ITR 452 (FB) wherein their Lordships at particular page 461 have explained the import and meaning of these words. He further contended that the Hon'ble Delhi High Court in the case of National Agricultural Co-operative Marketing Federation of India Ltd. (supra) had not considered the provisions of Section 141A along with the proviso to Section 214(1) and as such, it cannot be said that the judgment squarely applies to the facts of the assessee where these provisions have come into play. According to him, once an assessment under Section 141A is made in a particular case and the advance tax paid by the assessee is taken into consideration in determining the tax payable refundable under this section, then the resultant figure loses the character of advance tax. This becomes clear, according to him, if Section 141A is particularly read with Sub-section (4) ibid. and Section 219 of the Act. In other words, the amount of advance tax set off against the regular demand on the basis of the regular assessment, once set off loses its character of advance tax and would not be as such available for working out interest payable to the assessee on the excess amount of advance tax paid, if any, as a result of an order giving effect to an appellate order. The learned departmental representative in addition to the submissions made by him wholly supported the order of the learned Commissioner (Appeals) who rejected the appeal of the assessee on the ground that as held by the Supreme Court in the case of Volkart Bros. (supra) the issue that the assessee projected before him was a debatable one and as such not a mistake which the ITO could amend by an order of amendment under Section 154. 13. In the rejoinder, the learned counsel for the assessee has submitted that the learned departmental representative has not properly appreciated the ratio of the judgment of the Delhi High Court which fits like hand in gloves to the case of the assessee. He submitted that when the ITO made an order giving effect to the order of the appellate authority, he deducted from the total amount of refund of Rs. 14,28,934, the amounts of Rs. 5,69,879 and Rs. 1,41,084, respectively, granted to the assessee on provisional assessment and on an order of amendment described above. Therefore, according to him, on the sum of Rs. 7,17,971 which was determined as payable to the assessee by way of refund, interest had to be granted notwithstanding that there had been refund of the two amounts mentioned earlier. To this, he submitted, that the case of Corona Sahu Co. Ltd. (supra) was not applicable at all. In other words, he reiterated his main submissions and contended that these had not been met by the revenue and, therefore, the orders of the authorities below be reversed and the ITO be directed to grant interest as claimed by the assessee under Section 214. 14. We have given careful consideration to the rival submissions. We have also very carefully perused the authorities cited from both sides. The assessee in the application made on 12-10-1983 had projected to the ITO that there was a mistake apparent from record in the order of the ITO made on 6-8-1983 giving effect to the appellate order because the ITO had not allowed to the assessee interest under Section 214/244(1A) in accordance with law laid down by the Delhi High Court in the case of National Agricultural Co-operative Marketing Federation of India Ltd. (supra). It had also been pointed out to the ITO that there was no requirement under any relevant provisions of the Act or the Income-tax Rules, 1962 made thereunder that the assessee must furnish a bank guarantee to the department for obtaining a refund under the Act. In the impugned order made by the ITO on 24-11-1983 under Section 154, the ITO has observed that the interest was due to the assessee under Section 214 only on account of the amount refundable as a result of the order giving effect to the appellate order. According to the ITO, therefore, there was no mistake apparent from record and the assessee's application was not entertainable. From this order, it appears that the ITO omitted to deal with the point that he had made earlier in his letter to the assessee that he is prepared to issue refund in accordance with the judgment of the Delhi High Court in case the assessee furnished a bank guarantee and undertaking to safeguard the interests of the revenue in case the view of the Delhi High Court was not upheld by the Supreme Court. 15. The learned Commissioner (Appeals) gives an impression in his impugned order that he was convinced of the claim of the assessee as fully covered by the judgment of the Hon'ble Delhi High Court but refused to admit the claim on the ground that the claim of the assessee could not be entertained because from the point of view of the scope of Section 154, a debatable issue on this proposition has some to be created by the Allahabad High Court in the case of J.K. Synthetics Ltd. (supra) According to the learned Commissioner (Appeals) but for the question of the issue being debatable the assessee could be entitled to the required relief as the claim of the assessee was covered by the judgment of the Delhi High Court on the basis of which the assessee had made a claim before the ITO for amending the order made by the ITO, while giving effect to the order of the first appellate authority. 16. In our considered opinion, the authorities below were absolutely in error in proceeding with the claim of the assessee in the manner, they did. It is well settled that the ITO, while making an assessment, is bound by the decision of the High Court within whose jurisdiction he is operating. The Hon'ble Allahabad High Court in the case of Omega Sports & Radio Works (supra) has clearly laid down that if there is decision on a particular point by the High Court of a State, it is binding on the income-tax authorities in that State and merely because there is some judicial divergence of opinion on that point between some High Courts, it cannot be said that there is still scope for a debate on the point and that, therefore, Section 154 is not attracted in the case. Apparently, the ITO had not taken note of this authority, while dealing with the matter. 17. The Hon'ble Bombay High Court has observed in the case of Siemens India Ltd. (supra) that the ITO is clearly bound by the decision of a single Judge or a Division Bench of the Court within whose jurisdiction, he is operating as well as a decision of the Supreme Court. The Court has further clarified that the mere fact that an appeal has been preferred against such decision or is pending can make no difference whatever to the binding nature of that decision, so far as the ITO is concerned. In view of this clear provision of law, about the binding nature of the decision of a High Court upon the ITO, the ITO erred, firstly, in laying down the conditions that he will apply the decision of the Delhi High Court only, if the assessee furnished a bank guarantee to safeguard the interests of the revenue. When the matter came before the learned Commissioner (Appeals), he appears to have overlooked the above proposition of law to propound his own view that when there is conflict of judicial opinions, Section 154 would not be applicable. He, in this context, failed to appreciate that insofar as the decision of the High Court in whose jurisdiction, the ITO was operating, there could not be any question of conflict of judicial opinion because the ITO is duty bound to follow the decision of the High Court in whose jurisdiction he is operating. Therefore, the basis on which the learned Commissioner (Appeals) failed to apply the judgment of the Hon'ble Delhi High Court were apparently erroneous as he was not acting in accordance with law. 18. We have set out in detail the facts and at the cost of repetition, we observe that these facts are not in dispute. When the ITO made an order on 6-8-1983 giving effect to the appellate order dated 31-5-1983, he determined the amount to be refunded to the assessee at Rs. 7,17,971. This amount is excess of advance tax over the amount found due from the assessee on the basis of regular assessment as confirmed in appeal by the order dated 31-5-1983. In other words, the amount of Rs. 7,17,971 was the sum refundable to the assessee determined by the ITO on 6-8-1983. Therefore, the judgment of the Hon'ble High Court in the case of National Agricultural Co-operative Marketing Federation of India Ltd. (supra) was clearly applicable because the Hon'ble Court has observed after consideration of a plethora of judgments and the historical background of relevant provisions of law, that, 'strictly speaking, in our construction of the relevant statutory provisions, he will be entitled to interest right up to the date on which a refund is made to him consequent upon the appellate order'. These observations have been made by the Hon'ble High Court, though the petitioner in the said case has claimed interest only up to the date of revised assessment. In our considered opinion, the ratio of the judgment of the Hon'ble Delhi High Court in the above case was applicable to the facts of this case and when the assessee made an application to the ITO to amend his order, he was duty bound to do so notwithstanding the fact that the judgment of the Hon'ble Delhi High Court had been challenged further in appeal before the Supreme Court, particularly, taking into consideration the ratio of the Supreme Court judgment in the case of L. Hirday Narain v. ITO [1970] 78 ITR 26. We, therefore, set aside the orders of the authorities below and direct the ITO to entertain the application made by the assessee for making an order of amendment under Section 154 in the light of the judgment of the Delhi High Court as explained by us. 19. The appeal is allowed.

Dalmia Dairy Industries Ltd. vs Income-Tax Officer on 21 February, 1986

Income Tax Appellate Tribunal - Delhi

Court No. - 35 Case :- WRIT - A No. - 25723 of 2009 Petitioner :- Dr. Jyoti Rani Respondent :- State Of U.P. & Others Petitioner Counsel :- Satendra Pratap Singh Respondent Counsel :- C.S.C.,Suresh Chandra Dwivedi Hon'ble Vineet Saran,J. Hon'ble Ran Vijai Singh,J. Re: C.M. Impleadment Application No. 338824 of 2009. Heard learned counsel for the applicant as well as learned counsel for the petitioner. No counter affidavit has been filed. We have perused the record. We are of the view that the impleadment application deserves to be allowed and it is accordingly allowed. Let the applicant Chhaya Rani be impleaded as respondent No. 5 in this writ petition. Order Date :- 3.8.2010 AKSI Hon'ble Vineet Saran,J. Hon'ble Ran Vijai Singh,J. The learned counsel for the petitioner prays for and is granted three weeks' further time and no more to file rejoinder affidavit. List thereafter. Interim order shall continue to operate till the next date of listing. Order Date :- 3.8.2010 AKSI

Dr. Jyoti Rani vs State Of U.P. & Others on 3 August, 2010

Allahabad High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM WA.No. 2448 of 2008() 1. K.P.RENJINI , SUPERINTENDENT ... Petitioner Vs 1. THE MANAGING DIRECTOR ... Respondent 2. THE CHIEF PERSONNEL MANAGER 3. THE ASSISTANT TRANSPORT OFFICER For Petitioner :SRI.O.D.SIVADAS For Respondent : No Appearance The Hon'ble MR. Justice J.B.KOSHY The Hon'ble MR. Justice THOMAS P.JOSEPH Dated :18/12/2008 O R D E R J.B.KOSHY,Ag.C.J & THOMAS P. JOSEPH, J. -------------------------------------- W.A.No.2448 of 2008 ------------------------------------- Dated 18th December, 2008 JUDGMENT Koshy,Ag.C.J. This appeal is filed against the interim order in W.P.(C) No.36550 of 2008. This court in writ appeal will not interfere in interim orders of the court unless it is patently illegal or without jurisdiction. Hence, we direct the appellant to move before the learned single Judge itself for an early disposal of the writ petition. The appeal is dismissed. J.B.KOSHY ACTING CHIEF JUSTICE THOMAS P. JOSEPH JUDGE tks 

K.P.Renjini vs The Managing Director on 18 December, 2008

Kerala High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM Bail Appl No. 5344 of 2007() 1. CHANDRA BABU, S/O. NEELAKANDAN, ... Petitioner Vs 1. STATE OF KERALA, ... Respondent For Petitioner :SRI.BLAZE K.JOSE For Respondent :PUBLIC PROSECUTOR The Hon'ble MR. Justice R.BASANT Dated :07/09/2007 O R D E R R.BASANT, J. ---------------------- B.A.No.5344 of 2007 ---------------------------------------- Dated this the 7th day of September 2007 O R D E R (R.BASANT, JUDGE) jsr // True Copy// PA to Judge  B.A.No.5344/07 2  B.A.No.5344/07 3  R.BASANT, J. CRL.M.CNo. ORDER 21ST DAY OF MAY2007  Application for regular bail. The petitioner faces allegations under the Kerala Abkari Act. He was allegedly found to be in possession of 5 litres of arrack on 15/8/2007. He was arrested and continues in custody from that date. The petitioner has four other crimes under the Kerala Abkari Act also to his credit pending, submits the learned Public Prosecutor. 2. The learned Public Prosecutor opposes the application for bail. In the wake of the opposition by the learned Public Prosecutor, regular bail can be granted to the petitioner only if this court is in a position to entertain the twin satisfactions under Section 41A of the Kerala Abkari Act. I do not find any circumstances which can persuade this court to entertain either of those two satisfactions at the moment. I am satisfied that this petition deserves to be dismissed now. 3. In the result, this petition is dismissed. I may hasten to observe that the petitioner shall be at liberty to move this court or the learned Sessions Judge for bail at later stage of the investigation, not at any rate, prior to 15/09/2007. The investigating officer shall, in the meantime, make every endeavour to complete the investigation.

Chandra Babu vs State Of Kerala on 7 September, 2007

Kerala High Court

[Section 3(b)] [Section 3] [Complete Act]

Central Government Act

Gujarat High Court Case Information System Print SCA/9534/1994 1/ 2 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 9534 of 1994 For Approval and Signature: HONOURABLE MR.JUSTICE KS JHAVERI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? Yes 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 ? ========================================================= BAKKAR MOHMAD ABDUL RAZAK & 3 - Petitioner(s) Versus COLLECTOR OF PANCHMAHAL & 1 - Respondent(s) ========================================================= Appearance : MR RN SHAH for Petitioner(s) : 1 - 4. MR JASWANT K SHAH AGP for Respondent(s) : 1 - 2. ========================================================= CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 22/03/2010 ORAL JUDGMENT1.0 By way of present petition, the petitioner has prayed to direct respondent No. 1 Collector, Panchmahal not to cancel and/or revise the decision/order dated 27.12.1992 of respondent No.2- Municipality, by which the petitioner is appointed as Clerk/Peon by exercising the power under Section 258(1) of the Gujarat Municipalities Act by further service of the petitioner. 2.0 On 01.08.1994, this Court (Coram: S.M.Soni, J.) has passed the following order: Rule. To be heard with Special Civil Application No. 9245 of 1994. By way of Ad-interim relief, the respondents are restrained form terminating the services of the petitioner except in accordance with law. 3.0 It is required to be noted that Special Civil Application No. 9245 of 1994 is disposed of as having become infructuous by this Court vide order dated 05.07.2006. 4.0 In this matter, in view of particular facts and circumstances of the case, it will not be appropriate to allow Collector to proceed with the decision/order dated 27.12.1992 of respondent No.2- Godhra Municipality, Panchmahal. However, the recruitment of the petitioner will be subject to the Rules and Regulations of the Municipality. With the above, petition stands disposed of. Rule is discharged. Interim relief stands vacated. (K.S.JHAVERI, J.) niru*     Top

Author: Ks Jhaveri,&Nbsp;

Bakkar vs Collector on 22 March, 2010

Gujarat High Court

JUDGMENT M.M. Ghildiyal, J. 1 Heard Sri. L.P. Naithani, Sr. Advocate, assisted by Sri J.P. Joshi, learned Counsel for the appellant and Sri Arvind Vashishtha, learned Counsel for the respondent. 2. All the appeals are preferred against the judgment and order dated 30-9-2006 passed by learned District Judge, Dehradun in O.S. Nos. 17 to 22 of 2006. 3. The learned District Judge has disposed of all the aforesaid seven applications under Section 9 of the Arbitration and Conciliation Act, 1996 by a common judgment, thus, all appeals are also being disposed of by common judgment. 4. Brief facts of the case are that Oil and Natural Gas Corporation (hereinafter referred to as Corporation) is a corporate body registered under Indian Companies Act, 1956 having its registered Office at 124, Jeevan Bharti Building, Tower - II, Indira Chowk, New Delhi -1 and is having its corporate office at Tel Bhawan, Dehradun Uttaranchal. 5. The Corporation floated tenders for execution of various work such as civil, electrical, horticulture, housekeeping, maintenance of office and residential colonies etc. The respondents submitted their tenders, which were accepted and in pursuance thereof an agreement was executed in between the corporation-appellant and respondents. Respondents started work in terms of the agreement, however, by notice dated 11-9-2006, the corporation directed the respondents not to carry out further work. Aggrieved with the action of the appellant, since there is clause for arbitration in the agreement executed between the corporation and the respondents, preferred an application under Section 9 of Arbitration and Conciliation Act, 1996 before District Judge, Dehradun. 6. Objections were filed by the appellant against the application of the respondents filed under Section 9 of the Arbitration and Conciliation Act, 1996. 7. Learned District Judge vide judgment and order dated 30-9-2006 allowed the application of the respondents partly with a direction to the applicants/respondents to evoke their right and take necessary steps to approach the Arbitrator as agreed by there under Clause 25 of the agreement. In the meantime, corporation was also restrained by the learned District Judge from creating third party right/interest in the contract. Aggrieved with this order corporation has preferred these appeals. 8. We have heard Sri. L.P. Naithani, Sr. Advocate, assisted by Sri. J.P. Joshi, learned Counsel for the appellant and Sri. Arvind Vashishtha, learned Counsel for the respondent. 9. Learned Counsel for the appellant has challenged the impugned order on various counts. First, that Clause 13 of the agreement stipulates that at any time after commencement of the work, department may, for reasons whatsoever, notify application for not carrying the whole work or part thereof. The curtailment or termination of the work may be on account of any reason including administrative reasons and accordingly the appellant has rightly issued notice to the respondents restraining them from carrying out further work by invoking Clsuse 13 of the agreement and as such, the notice dated 11-9-2006 terminating the contract with effect from 30-9-2006 is in accordance with Clsuse 13 of the agreement. He has further submitted that once the parties have entered into agreement and agreed to the terms and conditions the parties cannot reprobate or approbate from their earlier stands. They have to adhere to the terms and conditions of the agreement. It was stated in the notice dated 11-9-2006 that the contractor shall be entitled for full payment as per rates and terms and conditions of the agreement towards the work done up to 30-9-2006. 10. Learned Counsel for the appellant has further submitted that there is no dispute relating to work between appellant and the respondents under the ambit of contract agreement which can be referred to arbitration as provided in Clsuse 25 of the agreement. The respondents have no right to invoke Clsuse 25 of the said agreement. The application under Section 9 was barred by principle of estoppel and acquiescence and consequently, respondents have no right to invoke Section 9 of the Arbitration and Conciliation Act, 1996. Since as many as 19 contracts were enforced the appellant in an endeavour to provide service terms facilities, management considered to have comprehensive facilities management contract for house keeping, civil, electrical, horticulture etc. for which a committee was constituted to study the matter. M/s. BVG India Limited a leading facilities solution provider, who are providing similar services to Oil and Natural Gas Commission, Mumbai, Parliament House, Mantralaya, Airport Authority of India, BEL, Tata Motors Limited, Pune, Bajaj Auto, Pune, ITC, Bangalore, Mahindra and Mahindra Limited, was contacted for taking up assignment. The said company submitted its techno commercial bid for taking up assignment and work has been awarded to M/s. BVG India Limited on nomination basis for a period of six months. Thereafter, open tenders will be finalized. As per item F3 of book of delegation of power Director (HR) is competent authority to approve the work of the said company on nomination basis and as such, the action of the appellant terminating the contract as per Clsuse 13 of the agreement and awarding-the work of M/s. BVG India Limited for a period of six months on nomination basis cannot be said at all as arbitrary on the part of the appellant. 11. Learned Counsel for the appellant has further pleaded that learned District Judge while allowing partly the petition of the respondents under Section 9 of the Arbitration and Conciliation Act, 1996 has exceeded in its jurisdiction in passing the impugned judgment by overlooking the objections of the appellant especially when the contract agreement is in respect of essential services like supply of water at residential colonies of the appellant, to the office of the appellant and also day to day maintenance, civil, electrical and the work has already been awarded and accepted by BVG India Limited and in fact M/s. BVG India Limited has started providing facilities to the appellant. 12. Learned Counsel for the appellant Sri L.P. Naithani has further submitted that while passing the interim injunction, learned District Judge has not considered at all the prima facie ingredient for granting interim injunction, such as prima facie case, balance of convenience and irreparable loss. 13. There is Clsuse 13 in the agreement, which gives power to the appellant to terminate the contract. Clauses 13 and 14 of the agreement are reproduced as under: Clause 13 : If at any time after the commencement of the work the Corporation shall for any reason whatsoever not require the whole work or part thereof specified in the tender to be carried out, the Engineer -in-Charge shall give notice in writing of the fact to the contractor who shall have no claim to any payment of compensation whatsoever on account of any profit or advantage which he might have derived from the execution of the work in full, but which he did not derive in consequence of the full amount of the work not having been carried out, neither shall he have any claim for compensation by reason of any alterations having been made in the original specifications, drawings, designs and instructions, which shall involve any curtailment of the work as originally contemplated. Provided that the contractor shall be paid the charges on the cartage of materials actually bona fide brought to the site of the work by the contractor and rendered surplus as a result of abandonment or curtailment of the work or any portion thereof and then taken back by the contractor, provided however, that the Engineer-in-Charge shall have in all such cases the option of taking over all or any such material at their purchase price or at local current rates whichever may be less. In the case of such stores having been issued from Corporation's Store, supervision, charges and storage charges shall be refunded in addition to the issue rate materials. Clause 14 If it shall appear to the Engineer-in-Charge or his subordinate in charge of the work, that any work has been executed with unsound, imperfect, or unskillful workmanship or with materials of any inferior description, or that any materials or articles provided by him for the execution of the work are unsound or of a quality inferior to that contracted for or otherwise not in accordance with the contract, the contractor shall on demand in writing which shall be made within six months of the completion of the work from the Engineer-in-Charge specifically the work, materials of article complained of not withstanding that the same may have been specified in whole or in part, as the case may require or as the case may be remove the material or articles so specified and provide other proper and suitable materials and article at his own proper charge and cost, and in the event of his failing to do so within a period to be specified by the Engineer-in-Charge in his demand, aforesaid, then the contractor shall be liable to pay compensation at the rate of one percent, on the estimated amount put to tender for everyday not exceeding ten days while his failure to do so shall continue and in the case of any such failure the Engineer-in-Charge may rectify or remove, and re-execute the work or remove and replace with other, the materials or articles complained of as the case may be at risk and expense in all respect of the contractor. 14. Admittedly, it was not a case of inferior work as mentioned in Clause 14 of the agreement. We find merit in the submission of learned Counsel for the appellant that District Judge was not correct in applying Clause 14 of the agreement because Clause 14 would apply where the Engineer-in-charge finds that the work executed was of unsound, imperfect or unskilled workmanship or inferior with material. 15. We do not find force in the submission of learned Counsel for the appellant that Clause 25 of the agreement is not applicable which provides for arbitration. Clause 25 of the agreement is quoted as under: Clause 25 If any dispute, difference, question or disagreement shall, at any time, hereafter arises between the parties hereto or the respective representatives, or assigns in connection with or arising out of the contract, or in respect of meaning of specifications, design, drawings, estimates, schedules, annexures, orders, instructions, the construction, interpretation of the agreement, application of provisions thereof anything hereunder contained or arising hereunder or as to rights, liabilities or duties of the said parties hereunder or any matter whatsoever incidental to his contract or otherwise concerning the works of execution or before or after the completion or abandonment thereof shall be referred to the sole arbitration of the person appointed by ONGC Ltd. at the time of dispute. It will be no objection to any such appointment that the arbitrator so appointed is an employee of ONGC Ltd. or that he had to deal with the matters to which the contract relates and that in the course of his duties as ONGC Ltd.'s employee, he had expressed views on all or any of the matters in dispute or difference. If the arbitrator to whom the matter is originally referred dies or refuses to act or resigns for any reason from the position of arbitrator, it shall be lawful for the ONGC Ltd. to appoint another person to act as arbitrator in the manner aforesaid. Such person shall be entitled to proceed with the reference from the stage at which it was left by his predecessor if both the parties consent to this effect, failing which the arbitrator will be entitled to proceed de novo. It is further a term of this contract that no person other than the person appointed by a Director of the Corporation shall be act as arbitrator and that, if for any reason that is not possible the matter is not to be referred to the arbitration at all. The arbitrator(s) may, from time to time, with the written consent of all the parties to the contract enlarge the time for making and publishing the award. It is a term of contract that party invoking arbitration shall specify the dispute or disputes to be referred to arbitration under the clause. It is also a term of the contract that the contractor shall not stop the work under this contract and the work shall continue as expected to continue whether the arbitration proceedings have commenced or not. The arbitrator shall be deemed to have entered on the reference on the date of this issue notice by him to both the parties for filing of the claims. The arbitrator shall give reasoned award in respect of each dispute or difference referred to him. The award as aforesaid shall be final and binding on all the parties to this contract in accordance with the law. It is also a term of the contract that if the contractor(s) do/does not make any demand for arbitration in respect of any claim(s) in writing within 90 days of receiving the intimation from the corporation that the bill is ready for payment, the claim of the contractor(s) will be deemed to have been waived and absolutely barred and the corporation shall be discharged and released of all liabilities under the contract in respect of these claims. The decision of the Superintending Engineer regarding the quantum of reduction as well as his jurisdiction in respect of reduced rates sub standard work, which may be decided to be accepted, will be final and would not be open to arbitration. The venue of the arbitration shall be Dehradun (U.A.), India. Subject as aforesaid, the provision of Indian Arbitration Act, 1996 and may any statutory modifications or re-enactments thereof and rules thereunder and for the time being, in force shall apply to the arbitration proceeding under this clause. 16. The said clause specifically provides that "any dispute, difference, question or disagreement arises at any time between the parties in connection with or arising out of contract...interpretation of agreement...shall be referred to the sole arbitrator." 17. Thus, the dispute has arisen between the parties on termination of contract of respondents and further interpretation of Clauses 13 and 14 was also involved for determining whether the notice was under Clause 13 or 14 of the agreement or both. 18. The learned District Judge has rightly held that the respondents can evoke the Arbitration Clause. 19.We do not find any infirmity in the judgment and order passed by learned District Judge, Dehradun so far as the question of evoking the right and to take necessary steps to approach the Arbitrator as agreed by the parties under Clause 25 of the agreement is concerned. 20. However, the direction granting the injunction by learned District Judge re-straining the appellant from creating any third party right/interest with respect to the contracts is conderned learned Counsel for the appellant has submitted that in fact, the work has already been awarded to M/s. BVG Limited. This fact was brought to the notice of the Court by way of filing objection by the appellant against the application of the respondents filed under Section 9 of Arbitration and Conciliation Act, 1996. 21. Learned District Judge, without hearing the affected party, has granted the interim injunction restraining the corporation from creating any third party right/interest with respect to the contracts. Right of third party was already created and the same was brought to notice of learned District Judge. 22. Learned Counsel for the respondents Sri Arvind Vashishtha has submitted that since no assessment of work already executed can be done and further to preserve the contract money. Learned District Judge has rightly granted interim injunction. 23. Learned Counsel for the appellant has placed reliance on the judgment passed by Delhi High Court in the case of Marriott International Inc. and Ors. v. Ansal Hotels Limited and Anr. reported in 2000 (1) Arbitration Law Report page 45 : 2000 CLC 759 wherein the Court in Para 115 has held as under: On consideration of the totality of the facts and circumstances, the petitioners have not made out a strong prima facie case for grant of interim relief. The balance of convenience is also not in favour of the petitioners. The grant of any interim relief at this stage may cause irreparable injury to the respondents whereas petitioner can always compensated in terms of money. 24. In this case learned District Judge has not considered at all either of the ingredients whether prima facie case is in favour of the respondents or not ? He has also not considered the balance of convenience and the irreparable injury to be caused to the applicant in case injunction is not granted. From the fact of the case, it is clear that the contract was in respect of essential services and by restraining the respondents not to create third party interest definitely the appellant would suffer irreparable injury whereas respondents can always be compensated in terms of money. 25. For the reasons recorded above, appeals are allowed. Order dated 30-9-2006 passed by learned District Judge, Dehradun is hereby set aside. However, respondents may invoke arbitration Clause 25 of the agreement and appellant is directed to take immediate action on the application so moved by respondents.

Author: M Ghildiyal

Oil And Natural Gas Corporation vs D.K. Bhatt And Etc. on 29 November, 2006

Uttaranchal High Court

JUDGMENT Shiv Kumar Sharma, J. 1. The order that was passed on July 20, 2005 reads as under:- "The writ petition being devoid of merit stands dismissed. Reasons shall follow." Here are the reasons:- 2. By this writ petition under Article 226 of the Constitution, the petitioner has prayed for direction to quash and set aside the suspension order dated May 16, 2005 with further direction to respondents to allow the petitioner to work on the post of Additional District Elementary Education Officer Jaipur. 3. As per facts averred in the writ petition the petitioner was initially appointed on the post of Teacher Gr. III in the Primary Education set up and he is continuously working under the Director Primary Education. He was promoted on the post of Teacher Gr.II in the year 1991. While the petitioner working as Head Master Government Upper Primary School, Hawamahal Jaipur he was promoted on the post of Lecturer in his own pay scale in Secondary Education set up. The same was denied by petitioner because the promotion was not regular and he was posted only in his own pay scale on the post of Lecturer. Thereafter the petitioner was posted as Additional Block Elementary Education Officer which is equivalent to the post of Lecturer under the Primary Education set up in Panchayat Samiti Dudu. The petitioner was transferred on his request to the post of Additional Block Elementary Education Officer Jaipur vide order dated February 22, 2003. The petitioner is an office bearer of Rajasthan Shikshak Congress which is a registered association and he was elected or nominated as a General Secretary (Headquarter), which Association is affiliated to the Congress party. Another association Rajasthan Shikshak Sangh is affiliated to the ruling party i.e., Bhartiya Janta Party and Dinesh Chand Sharma is the office bearer. 4. The main contention of the petitioner is that impugned order of suspension has been passed with malafide intention at the behest of Shri Ghanshyam Tiwari, Minister of Education (respondent No. 5) because family members of the petitioner opposed Shri Tiwari in Assembly election held in the month of December 2003. After becoming Education Minister Shri Tiwari started passing orders against the petitioner. The petitioner was transferred and the transfer order was stayed by the Tribunal. Being annoyed by the aforesaid action the order of suspension was passed on wrong grounds and Headquarter of petitioner was fixed at Bikaner without any reason. 5. Mr. Bajrang Lal Sharma, Learned Senior Counsel vehemently criticised the impugned order and placed reliance on Mani Ram v. State of Rajasthan, 1992(2) WLC (Raj.) 175, Dr. M.S. Bhatnagar v. State of Raj. WLR 1991(S) Raj. 541, Lajpat Rai Gogna v. State of Raj. 1992(1) RLR 619, Sumer Singh Bhandari v. State of Raj. 1991(2) RLR 265. 6. In Oxford Dictionary the term 'suspension' has been defined as 'Action of debarring or state of being debarred, especially for a time from a function of privilege, temporary deprivation one's office or position, state of being temporarily kept from doing or deprived of something...." 7. Constitution Bench of the Hon'ble Supreme Court in V.P. Gindroniya v. State of M.P. indicated three kinds of suspension. Their Lordships observed in para 6 as unden- "6. Three kinds of suspension are known to law. A public servant may be suspended as a mode of punishment or he may be suspended during the pendency of an enquiry against him if the order appointing him or statutory provisions governing his service provide for suspension. Lastly he may merely be forbidden from discharging his duties during the pendency of an enquiry against him which act is also called suspension. The right to suspend as a measure of punishment as well as the right to suspend the contract of service during the pendency of an enquiry are both regulated by the contract of employment or the provisions regulating the conditions of service. But the last category of suspension referred to earlier is the right of the master to forbid his servant from doing the work which he had to do under the terms of the contract of service or the provisions governing his conditions of service at the same time keeping in force the master's obligations under the contract. In other words the master may ask his servant to refrain from rendering his service but he must fulfill his part of the contract. 8. The provisions related to suspension incorporated in Rule 13(1) of the CCA Rules provides as under:- "13. Suspension.-(1) The Appointing Authority or any authority to which it is subordinate or any other authority empowered by the Government in that behalf may place a Government servant under suspension. (a) where a disciplinary proceedings against him is contemplated or is pending, or (b) where a case against him in respect of any criminal offence is under investigation or trial: Provided that where the order of suspension is made by an authority . lower than the Appointing Authority, such authority shall forthwith report to the Appointing Authority, such authority shall forthwith report to the Appointing Authority the circumstances in which the -.. order was made." 9. Constitution Bench of Hon'ble Supreme Court in Mohammed Ghouse v. The State of Andhra propounded that order of suspension is neither one of dismissal nor of removal from service within the meaning of Article 311 of the Constitution. 10. In State of M.P. v. State of Maharashtra , their Lordship of the Supreme Court held that the order of suspension does not put an end to the service of an employee. Suspension merely suspends the claim to salary. During suspension there is suspension allowance. Real effect of the order of suspension is that though he continues to be a member of the service he is not permitted to work and is paid only subsistence allowance which is less than his salary. 11. I find myself unable to accept the extreme argument of Mr. Bajrang Lal Sharma, learned Senior Counsel that the suspension was effected at the behest of Shri Ghanshyam Tiwari, Minister of Education. The order of suspension to my mind does not suffer from suspension syndrome. It is well settled that the jurisdiction under Article 226 cannot be freely exercised in matters of suspension pending or in contemplation of disciplinary proceedings. Unless an order of suspension is Invalid In law either for want of competence on the part of authority passing the same or for violation of any specific rule, High Court should not entertain writ petitions against such orders of suspension. 12. For these reasons, the writ petition being devoid of merit stands dismissed.

Author: S K Sharma

Goverdhan Swami vs State Of Rajasthan And Ors. on 21 July, 2005

Rajasthan High Court

HIGH COURT OF JUDICATURE FOR RAJASTHAN JODHPUR S.B. Criminal Miscellaneous Bail Application No. 10477/2021 Jaskaran Singh ----Petitioner Versus The Narcotics Control Bureau, Jodhpur ----Respondent For Petitioner(s) : Mr. Deepak Menaria HON'BLE MR. JUSTICE DEVENDRA KACHHAWAHA Order 27/08/2021 Learned Special Public Prosecutor for NCB is directed to call for the case diary/factual report/antecedent of the accused- petitioners and produce the same before the Court on the next date of hearing. List this matter on 06.08.2021. Office is directed to show the name of Mr. M.R. Pareek, Spl. P.P. for NCB, in the cause-list. (DEVENDRA KACHHAWAHA),J 95-Bharti/- Powered by TCPDF (www.tcpdf.org)

Jaskaran Singh vs The Narcotics Control Bureau, ... on 27 August, 2021

Rajasthan High Court - Jodhpur

JUDGMENT R.M.S. Khandeparkar, J. 1. Heard. Admit. The respondent waives service. By consent, heard forthwith. 2. This appeal arises from the order dated 15-6-2006 passed in Notice of Motion No. 685 of 2005 in Suit No. 3228 of 2001. By the impugned order, the Notice of Motion which was taken out by the appellant has been dismissed. The said Notice of Motion was taken out by the appellant for an order referring the parties to arbitration in respect of the suit claim on the basis of the provisions of Article 7 r/w Articles of Wet Lease Agreement dated 22-10-1995 which was executed between the parties. The learned single Judge has held that Article 11 has ceased to be operative after the obligation to pay rent under the agreement had been terminated and had been replaced by a liability to pay damages. 3. The parties to the proceedings had entered into a Wet Lease Agreement dated 22-10-1995 and the Article 7 thereof related to arbitration. Consequent to termination of the agreement by the respondent on 4-9-1996, the appellant sought to refer the dispute to arbitration on 7-1-1997. The Arbitral Tribunal by its award dated 19-1-1999 ruled that the termination was wrongful. The respondent's application for leave to appeal was rejected. Under the Quantum Award passed in London, the respondent was found liable to pay to the appellant a sum of US$ 23,634,581.00 as on 15-11-1999. The appellant moved the Court in England on 6-12-1999 for enforcement of the said Quantum Award. On 16-12-1999 the respondent filed an application to the Reserve Bank of India for payment of the said sum of US$ 23,634,581.00. The Reserve Bank of India gave permission to the respondent under its order dated 21-12-1999 subject to obtaining NOC from the Income-Tax Department. On 21-12-1999, accordingly, the respondent applied to the Deputy Commissioner of Income-Tax for the necessary NOC. Under the letter dated 30-12-1999 the Income-Tax Department directed the respondent to deposit the said sum of US$ 23,634,581.00 in the Government treasury. On 20-1-2000 the London Court stayed the enforcement of the said Quantum Award on the condition that the respondent opens an escrow account with a Bank in London and deposits a sum of US$ 21.6 million. The Court thereupon referred the dispute as to the claim of the respondent that in view of Clause 11.1 of the said Agreement, it was entitled to deposit the said sum of US$ 21.6 million in Government treasury and obtain a discharge in respect thereof, to the Arbitral Tribunal. On 9-2-2000 the Deputy Commissioner of Income-Tax directed the respondent not to remit any monies to the appellant or to deposit monies in the escrow account or any other account in India and also provisionally attached the said amount payable under the said Quantum Award. However, on 14-2-2000, in compliance of the said order dated 20-1-2000, the respondent deposited sum of US$ 21.6 million in an escrow account. On 27-3-2000 the Deputy Commissioner of Income-Tax called upon the respondent to pay the amount allegedly payable by the appellant, amounting to US$ 28.22 million and prohibited the respondent from making payment of any sums even in future to the appellant. On 22-5-2000 the Arbitral Tribunal passed an order holding that in view of the repudiation of the Wet Lease Agreement, the respondent was not entitled to deduct any amount from the award or pay the same to the income-tax authorities. On 19-7-2000 the respondent applied for leave to appeal from the said order dated 22-5-2000 in the Commercial Court in England which was refused and the appellant's Motion for an order instructing the monies in the escrow to be held solely for the benefit of the appellant was allowed. On 28-7-2000 the income-tax authorities issued notice to the respondent under Section 210 of the Income-Tax Act, 1961 to show cause why penalty should not be imposed on it for non-payment of tax demanded. On 29-9-2000 the respondent deposited a sum of Rs. 10,46,52,267/-with the income-tax authorities towards the tax deducted at source by the Arbitral Tribunal. On 14-2-2001 an order was passed by the Deputy Commissioner of Income-Tax treating the respondent as an "assessee in default" for not having deducted tax at source on the said sum of US$ 21.6 million. On 19-2-2001 the Deputy Commissioner of Income-Tax addressed notice to the respondent to pay tax on the said Quantum Award, treating the respondent as an "assessee in default". On 15-3-2001 the Deputy Commissioner of Income-Tax issued a show cause notice to the respondent as to why it should not be treated as an "agent of the appellant". The respondent filed an appeal before the Commissioner of Income-Tax against the order dated 14-2-2001 which was dismissed as being not maintainable. On 20-7-2001 the present Suit came to be filed wherein the appellant took out the above referred Notice of Motion and the same came to be dismissed by the impugned order dated 15-6-2006. 4. The challenge to the impugned order is two-fold: firstly, that the impugned order is contrary to law laid down by the Apex Court in Shin-Etsu Chemical Co. Ltd. v. Aksh Optifibre Ltd. and Anr. in as much as before holding that the arbitral agreement between the parties to be not enforceable, no opportunity was given to the appellant to lead necessary evidence to decide the said issue about the validity and subsistence of the arbitral agreement in relation to the issue which is sought to be raised in the Suit, and secondly, that the learned single Judge failed to appreciate that the arbitration clause is an independent agreement and Clause 11.1 of the said Wet Lease Agreement comprises of two distinct parts viz., deduction of tax from the payments to be made i.e., withholding tax and respective liability of the appellant and the respondent to bear the tax levied other than in respect of withholding tax. 5. Upon hearing the learned Counsel for the parties and on perusal of the records, the first point which arises for consideration is whether the Court is required to give opportunity to lead evidence to the parties once the Court prima facie finds no scope for reference of the matter to arbitration, either on account of the agreement being null and void or in-operative or incapable of being performed, while dealing with the matter under Section 45 of the Arbitration and Conciliation Act, 1996, hereinafter called as "the said Act". 6. As rightly submitted by the learned Counsel for the appellant, the issue which is sought to be raised is no more res integra and has been well-settled by the decision of the Apex Court in Shin-Etsu Chemical Company's case (supra). By a majority decision in the said case, the Apex Court has held that: if on a prima facie examination of the documents and material on record including the arbitration agreement on which request for reference is made by one of the parties, the judicial authority or the court decides to make a reference, it may merely mention the submissions and contentions of the parties and summarily decide the objection if any raised on the alleged nullity, voidness, inoperativeness or incapability of the arbitration agreement. In case, however, on a prima facie view of the matter, which is required to be objectively taken on the basis of material and evidence produced by the parties on the record of the case, the judicial authority including a regular civil court, is inclined to reject the request for reference on the ground that the agreement is "null and void" or "inoperative" or "incapable of being performed" within the meaning of Section 45 of the Act, the judicial authority or the court must afford full opportunities to the parties to lead whatever documentary or oral evidence they want to lead and then decide the question like trial of a preliminary issue on jurisdiction or limitation in a regular civil suit and pass an elaborate reasoned order. Where a judicial authority or the court refuses to make a reference on the grounds available under Section 45 of the Act, it is necessary for the judicial authority or the court which is seized of the matter to pass a reasoned order as the same is subject to appeal to the appellate court under Section 50(1)(a) of the Act and further appeal to this Court under Sub-section (2) of the said section. 7. Apparently, the Apex Court has in clear terms ruled that when the party raises an issue as regards the validity of the agreement in an application under Section 45 of the said Act, if the Court prima facie on the basis of the materials placed in support of contention is inclined to reject the request for reference, then the Court has to afford full opportunities to the parties to lead documentary as well as oral evidence which they want to lead in relation to the validity or in-operativeness or incapability of performance of the agreement and then decide the question like a trial of a preliminary issue on jurisdiction or limitation in a regular Suit. The learned single Judge, however, held that in Shin-Etsu Chemical Company's case the Apex Court has held that on a primary examination of the documents and materials on record including the arbitration agreement, the Court can reject the request for reference on the ground that the agreement is null and void or in-operative or incapable of being performed within the meaning of Section 45 of the said Act. Undoubtedly, that was the ruling by one of the Hon'ble Judges of the Apex Court in the said matter. However, by a majority it was ruled otherwise. 8. It is not in dispute that the learned single Judge did not afford any opportunity to the parties to lead any evidence in support of their rival contentions regarding the validity of the agreement or of its enforceability or unenforceability. As the objection directly related to the claim based on Clause 11.1 of the Wet Lease Agreement, and on that count the appellant herein having requested for a reference of the matter for arbitration, it was necessary for the learned single Judge to afford an opportunity to the parties to place on record whatever materials they desire to produce before discharging the Notice of Motion. However, in the absence of such an exercise being done, the Notice of Motion taken out under Section 45 of the said Act could not have been disposed of. 9. As the other point which is sought to be raised relates to the merits of the case, it is too premature to deal with the said point; and it would amount to putting the cart before the horse. Being so, we are left with no alternative than to set aside the impugned order and remand the matter to the learned single Judge to give an opportunity to the parties to place on record whatever materials they want to produce in support of their rival contentions while dealing with the Notice of Motion taken out by the appellant in terms of Section 45 of the said Act and to deal with the same bearing in mind the law laid down by the Apex Court in Shin-Etsu Chemical Company's case. The appeal is accordingly allowed in above terms, with no order as to costs.

Author: R Khandeparkar

Caribjet Inc., A Company ... vs Air India Limited, A Company ... on 28 February, 2007

Bombay High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM MACA.No. 2134 of 2006() 1. THE ORIENTAL INSURANCE CO.LTD,KASARGOD, ... Petitioner Vs 1. PRASANTH M, S/O.PADMANABHAN P,ORCHA, ... Respondent 2. NEW INDIA ASSURANCE CO.LTD, SILVER For Petitioner :SRI.GEORGE CHERIAN (THIRUVALLA) For Respondent :SRI.M.THAMBAN The Hon'ble MR. Justice M.N.KRISHNAN Dated :24/06/2008 O R D E R M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NO. 2133 OF 2006 AND M.A.C.A. NO. 2134 OF 2006 = = = = = = = = = = = = = = = Dated this the 24th day of June, 2008. J U D G M E N T These appeals are preferred against awards of the Motor Accidents Claims Tribunal, Kasaragod in O.P.(MV) Nos.528/03 and 849/03.The claimant in O.P.(MV)Nos.528/03 is the driver of the ambassador car which was involved in the accident and the other claimant is the owner of the ambassador car which met with the accident. There was collision between the ambassador car and a lorry and the Tribunal found that the driver of the car as well as the driver of the lorry are equally negligent and therefore apportioned the negligence at 50% each. The Tribunal awarded a compensation and directed the insurance company of the lorry as well as the insurance company of the ambassador car to pay the amount equally towards satisfaction of the award. It is against that decision, present appeals are preferred. M.A.C.A. 2133 & 2134 OF 2006 -:2:- 2. Learned counsel for the appellant, insurance company would submit before me that when the Tribunal found that the accident took place on account of the negligence of the car driver to an extend of 50% it means that he had contributed to the accident, insurance company of the car cannot be saddled with the liability for the contributory negligence. He also contended that the other injured being the owner of the car is not covered by the policy of insurance of the ambassador car and therefore compensation also cannot be ordered to be paid by the insurance company. These contentions are legally correct and perfectly sustainable for the following reasons. 3. The person who has contributed to the accident by himself of his own negligence is not entitled to compensation from the insurer of his vehicle and similarly the owner of the car whose risk is not covered by the policy of insurance company of his car also is not entitled to compensation from the insurance company of the said car. So the finding of the Tribunal requires interference. M.A.C.A. 2133 & 2134 OF 2006 -:3:- 4. Next question to be considered is whether in these types of cases whether the drivers can be treated as joint tortfeasors and entitle the party to claim compensation from one of the tortfeasors. The position of law after the decision in National Insurance Co. Ltd. v. Sivasankara Pillay (1995 (1) KLT 51) is slightly different. When an accident took place on account of the composite negligence of two persons even for a third party one cannot describe the two drivers as joint tortfeasors but they can be classified only as several tortfeasors which means their liability is independent and individual. When it is so one cannot direct the entire compensation to be paid by one of the several tortfeasors. Here, unfortunately, the driver of the car and owner of the car cannot claim insurance coverage on account of the fact that one has contributed to the accident and the other is not covered by policy of insurance of his car. Therefore they have to be satisfied with 50% of the award amount which they are entitled to get from the insurance company of the lorry which also caused the accident. Therefore the appeals  M.A.C.A. 2133 & 2134 OF 2006 -:4:- are partly allowed and it is held that the claimants are only entitled to get 50% of the amount from the insurance company of the lorry namely, the 3rd respondent in the claim petition and the insurance company of the car is exonerated from the liability. The MACAs are disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-

The Oriental Insurance Co.Ltd vs Prasanth M on 24 June, 2008

Kerala High Court

JUDGMENT Rajendra Saxena, J. 1. This petition filed under Section 397(2)/401 read with Section 482 Cr.P.C. has been directed against the order dated 4.2.1992 passed by learned Sessions Judge Sirohi in Criminal Revision Petition No. 29/89 "State v. Peer Sing and Ors.", whereby he accepted the revision petition filed on behalf of the State and set aside the order of the learned Munsif & Judicial Magistrate, Shiv-Ganj dated 13.9.1989 discharging the petitioners of the offence under Section 498A I.P.C. and directed the learned Magistrate to pass orders in accordance with law after hearing the parties. 2. Succinctly stated the necessary facts for the disposal of this petition are that on 22.9.1986 Shri Kushal Singh, S.H.O., Police Station, Shivganj registered Crime No. 68/86 under Section 498A I.P.C. on the basis of a F.I.R. lodged by him, wherein, it was alleged that the deceased Smt. Antar Kanwar was married to petitioner Peer Singh about 10 years ago, that her 'Gauna' ceremony had taken place about 4 years back and that after the 'Gauna (Aana)' she lived for some times at her in-laws house and some time with her parents. It was alleged that Peer Singh used to mal-treat her and therefore she started living with her parents. On 12.2.1986 Smt. Antar Kanwar had lodged a report at Police Station, Shivganj to the effect that she had come from her husband's house at her own accord and started living with her parents. Again on 15.2.1986, Moti Singh, the uncle of Smt. Antar Kanwar got a report entered at Police Station, Shivganj to the effect that persons belonging to village Lakma i.e. her husband's village had come to forcibly take her away. Thereupon the S.H.O. Sumer Singh went to the village, where he found that near a temple petitioner Peer Singh and his 15-20 companions were sitting. There, Sardar Singh, the father of Smt. Antar Kanwar had informed the S.H.O. that a meeting of panchas of their community had been convened, that no body was forcibly taking away Smt. Antar Kanwar and that their dispute would be solved by the panchas. It is alleged that at the persuasion of the panchas, petitioner Peer Singh took his wife Smt. Antar Kanwar to his house. On 4.3.1986 at about 7-8 p.m. when Smt. Antar Kanwar was cooking food, she caught fire and was immediately rushed to Govt. Hospital, Sirohi. On 5.3.1986 at 1.30 p.m. the Assistant Collector & Executive Magistrate, Sirohi recorded the statement of Smt. Antar Kanwar, wherein she specifically deposed that she had accidently caught fire when she was liting the 'Chula' for preparing the food. On 7.3.1986 Ram Gopal Purohit, Dy. S.P. Sirohi also recorded her statement, wherein she repeated the same version and also stated that she wanted to go to her parent's house because her husband Peer Singh was a poor person and that she had to work at his house, which she did not like. She also stated that Peer Singh and her in-laws did not make any demand for dowry or committed cruelty towards her and that she did not attempt to commit suicide. It is the case of the prosecution that Smt. Antar Kanwar remained in the Govt. Hospital, Sirohi till 12.3.1986, when her mother took her away and got her admitted at General Hospital at Udiapur. She remained in the said hospital till 30.4.86 from where she was discharged, and while she was being taken to her village she died in the way. On 1.5.1986, her dead body was cremated by her parents without getting her post-mortem examination conducted. The police initiated proceedings under Section 174 Cr.P.C. In the meanwhile, Moti Singh the uncle of the deceased went a letter to the I.G. Police Jaipur and prayed for a detailed inquiry. The said complaint was sent to the Dy. S.P., Sirohi and was ultimately handed over to Shri Kushal Singh, S.H.O., Police Station, Shivganj, who recorded the statement of Smt. Najo the mother of the deceased on 22.9.1986, Smt. Naju in her statement stated to the S.H.O. that her daughter Smt. Antar Kanwar had told her that petitioner Bhim Singh, his wife, Bahadur Singh and Devi Singh had collected the material for burning her and that they had thrown her in the fire. On the statement of Smt. Najo, the S.H.O. himself lodged a report and registered the case and after investigation submitted a charge-sheet against the present petitioners. It may be mentioned here that the wives of Bhim Singh and Bahadur Singh as well as Devi Singh were not challaned. 3. The learned Munsif & Judicial Magistrate, Shivganj after giving a detailed chronicle account of the events held that prima facie no case under Section 498 I.P.C. was made out and accordingly by his order dated 13.9.1989 discharged the petitioners. However, the State filed a revision petition before the learned Sessions Judge, Sirohi, who solely replying on the Statement of Smt. Najo dated 22.9.1986 held that offences under Section 306 & 498A I.P.C. were prima facie made out. He, therefore, by his impugned order dated 4.2.1992 set aside the order of the learned Magistrate dated 13.9.1989 and directed him to pass necessary orders after hearing the parties. Hence this revision petition. 4. I have heard the learned Counsel for the petitioner and learned Public Prosecutor at length and very carefully perused the record of the lower courts in extenso. 5. Since the dying declaration dated 5.3.1986, recorded by the Assistant Collector & Executive Magistrate Sirohi was not sent to the Munsif & Judicial Magistrate Sirohi, the same was sent for by this court. The executive Magistrate reported that the original file was not traceable. However, he sent the carbon copy of the statement of Smt. Antar Kanwar dated 5.3.1986, which was recorded by the them Executive Magistrate in presence of Dr. S.M. Purohit. 6. A perusal of the said dying declaration dated 5.3.1986 of Smt. Antar Kanwar reveals that it was recorded in presence of doctor, who had certified that she was in a fit state and condition to give statement. In that statement Smt. Antar Kanwar had stated in unambiguous and clear terms that she had caught the fire accidentally. She had not make allegation against the petitioner or any other person. She had also stated therein that she did not want to go to her in-laws house, but since the panchas had asked her father to pay Rs. 50,000/- which he was unable to pay, therefore, she was taken to her husband's house. She had also stated therein that her husband Peer Singh was unemployed and a poor person and was not in a position to feed her. She has also stated that when she was liting the 'Chula' for making meals, she fainted and feel down thereon and caught fire. It is also fully borne but from the record of this case that she was immediately rushed to the Government Hospital, Sirohi. There also Smt. Antar Kanwar in her statement dated 7.3.1986 recorded by the Dy. S.P., Sirohi had disclosed the same version of the incident and did not make any allegation against the petitioners about cruelty or demand of dowry. Her statement dated 7.3.1986 has bee submitted by the S.H.O. along with the charge-sheet. Prima facie, there appears no reason to disbelieve the dying declaration dated 5.3.1986 recorded by the Executive Magistrate as well as her statement dated 7.3.1986 recorded by the Dy. S.P. immediately after the occurrence. Smt. Antar Kanwar remained as an in door patient in the General Hospital, Udaipur from 12.3.1986 to 30.4.1986 as is from the certificate issued by the Medical Officer Incharge dated 12.6.1986. It is also an admitted fact that while Smt. Antar Kanwar was being brought from Udaipur she died in the way and that her dead body was cremated by her parents without getting her post-mortem examination. It appears that after her death during the course of an inquiry under Section 174 Cr. P.C, a complaint was lodged by Moti Singh, the uncle of the deceased, which was sent by the I.G. Police to the Dy. S.P., Sirohi. The S.H.O. recorded the statement of Smt. Najo on 22.9.1986 i.e. after 6-months of the alleged occurrence and about 4 months and 20 days after the death of Smt. Antar Kanwar, wherein for the first time she stated that Bhim Singh, his wife, Bahadur Singh etc. had forcibly burnt Smt. Antar Kanwar. Smt. Najo's statement does not find any corroboration. The learned Magistrate has discussed, analysed and evaluated the evidence collected by the Investigation Officer and after giving convincing and cogent reasons had rightly held that prima facie offence under Section 498A I.P.C. was not made out. In view of the dying declaration of Smt. Antar Kanwar dated 5.3.1986 and her statement dated 7.3.1986, there is no reliable evidence to show that the petitioners had subjected her to cruelty or had.made any demand of dowry or committed any wilful conduct of such a nature which was likely to drive her to commit suicide or to cause grave injury or danger to her life. The learned Sessions Judge has, thus, clearly committed an error of fact as well as an error of law in holding that Smt. Antar Kanwar was forced to commit suicide due to the ill-treatment or cruelty of her in-laws or the petitioners. The statement of Smt. Najo, the mother of the deceased, which was recorded as late as on 22.9.1986, prima facie can not be relied upon to neutralise the effect of dying declaration of the deceased dated 5.3.1986 recorded by the Executive Magistrate and her subsequent statement dated 7.3.86 recorded by the Dy. S.P., Sirohi. Therefore the inference drawn by the learned Sessions Judge is apparently based on mere surmises and conjectures and as such the impugned order can not be sustained. 7. Hence, for the reasons mentioned above, I allow this petition and set aside the order of the learned Sessions Judge dated 4.2.1992 and confirm the order dated 13.9.1989 passed by the learned Munsif and Judicial Magistrate, Shivganj.

Author: R Saxena

Peer Singh And Ors. vs State Of Rajasthan on 22 February, 1993

Rajasthan High Court

Gujarat High Court Case Information System Print CA/3935/2011 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL APPLICATION - FOR STAY No. 3935 of 2011 In FIRST APPEAL No. 1092 of 2011 To CIVIL APPLICATION - FOR STAY No. 3936 of 2011 In FIRST APPEAL No. 1093 of 2011 ========================================================= ORIENTAL INSURANCE CO LTD - Petitioner(s) Versus RASMITABEN NATUBHAI PATEL & 2 - Respondent(s) ========================================================= Appearance : MR RITURAJ M MEENA for Petitioner(s) : 1, RULE SERVED for Respondent(s) : 1, MR JIGAR G GADHAVI for Respondent(s) : 1, None for Respondent(s) : 2, RULE NOT RECD BACK for Respondent(s) : 3, ========================================================= CORAM : HONOURABLE MR.JUSTICE G.B.SHAH Date : 11/11/2011 ORAL ORDER Learned advocate for the applicant seeks more two weeks' time for compliance of the order dated 07.10.2011. Hence, the matters are adjourned to 25.11.2011. (G.B.SHAH, J.) Hitesh     Top

Author: G.B.Shah,

Oriental vs Rasmitaben on 11 November, 2011

Gujarat High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 8706 of 2007(J) 1. SMT. M.P.LILLY, ... Petitioner Vs 1. STATE OF KERALA, REPRESENTED BY ... Respondent 2. THE DIRECTOR, 3. REGIONAL DEPUTY DIRECTOR (NORTH ZONE), 4. KERALA PUBLIC SERVICE COMMISSION, 5. DISTRICT PUBLIC SERVICE COMMISSION For Petitioner :SRI.KRB.KAIMAL (SR.) For Respondent :SRI.ALEXANDER THOMAS,SC,KPSC The Hon'ble MR. Justice P.R.RAMACHANDRA MENON Dated :16/02/2009 O R D E R P.R.RAMACHANDRA MENON, J. ====================== W.P.(C) No. 8706 of 2007 ====================== Dated, this the 16th day of February, 2009 J U D G M E N T Non-reporting of the vacancy of Staff Nurse Grade II in Kannur District to the Kerala Public Service Commission, by the Department of Insurance Medical Services is the actual question involved in this writ petition. 2. Pursuant to the notification issued by the Kerala Public Service Commission for the selection and appointment of Staff Nurse in Kannur District, the petitioner participated in the process of selection and on coming successful, got included and placed at Sl.No.10 in Exhibit P1 rank list, which came into force on 18-10-2004 and was valid till 17-10-2007. Referring to Exhibit P2 Special Rules, it is contended by the petitioner that the post of Staff Nurse has to be filled up by direct recruitment; and that it is the feeder category for promotion to the next  W.P.(C) No. 8706/2007 -:2:- higher post of Head Nurse, to be filled up in the ratio prescribed. It is further contended that only seven vacancies were reported and they were appointed pursuant to the advice given by PSC, whereas the persons who were promoted as Head Nurses were permitted to continue against the posts of Staff Nurse in Kannur District. As a result, at least six posts of Staff Nurse in Kannur District were not reported to the PSC so as to enable the PSC to advise candidates and fill up the vacancies from Exhibit P1 rank list. This is cited as an arbitrary exercise of power, particularly when the post of Head Nurse is having statewise seniority, while the post of Staff Nurse is having Districtwise seniority. Exhibits P3/P3(a) dated 21-6-2005 reveal that ten Staff Nurses were promoted as Head Nurses and were permitted to continue in Kannur District, whereas only five vacancies were actually existing in the said District. It is stated by the petitioner that, apart from this, another Head Nurse was transferred from Kasargod to Kannur District and was accommodated as a Staff Nurse,  W.P.(C) No. 8706/2007 -:3:- thus resulting in deprivation of six vacancies available to the Staff Nurse denying the chances of those who were legitimately expecting advice and appointment from Exhibit P1 rank list. 3. While so, Exhibits P8 and P9 orders were passed by the second respondent, which have apparently resulted in excess promotion of Staff Nurse over and above the stipulated quota and subsequent reversion. The order of reversion was challenged by the aggrieved persons by filing W.P.(C) No.38310 of 2007 and connected cases, wherein specific direction was issued by this Court to re-consider the matter in the manner specified therein; which led to Exhibit P10 order passed by the second respondent on 19-8- 2008. As per Exhibit P10, the ratio was re-fixed between the Head Nurse and Staff Nurse as 1:2 (in place of 1:4) giving rise to wider avenues and vacancies for being promoted as Head Nurses and thus accommodating the Head Nurses who were promoted in excess of the ratio earlier. However,  W.P.(C) No. 8706/2007 -:4:- the fact remains that the slots occupied by the Head Nurses in Kannur District, as pointed out by the petitioner, were more or less of the Staff Nurse aspirants who were waiting in the queue for advice from the PSC, based on their position in Exhibit P1 rank list. 4. As to non-reporting of the vacancies of Staff Nurses in Kannur District, it is pointed out that only one vacancy was actually available at that point of time. Second and third respondents have filed counter affidavit dated 7-9- 2007 trying to justify their stand in accommodating the promotee Head Nurses against the slots of Staff Nurses in Kannur District. However, it is stated that such exercise was pursued for the reason that the actual places of Head Nurses were not identified till date and the Staff Nurses on promotion as Head Nurses were allowed to continue in the same station on the presumption that the posts of Staff Nurse and Head Nurse were inter-changeable. It has been admitted that six Head Nurses were retained in Kannur  W.P.(C) No. 8706/2007 -:5:- District in excess, based on the said presumption that the posts of Staff Nurse and Head Nurse were inter- changeable. But it is quite relevant to note the very same respondents in the fourth paragraph (unnumbered) of their counter affidavit have stated that the post of Head Nurse is supervisory nature, which obviously shows that the reasoning given is nothing but a paradox. In any view of the matter, the misconception or lack of knowledge or understanding of the concerned respondents cannot be a ground to deny the benefit, which otherwise would have been available to persons like the petitioner. 5. In the course of hearing, it has been fairly conceded by the learned Government Pleader, upon instructions, that the actual number of vacancies of Staff Nurses available in Kannur District, after Exhibit P10, is '7' (not '8') including the one vacancy, which has been referred to in the counter affidavit. It is also relevant to note that this Court on 1-10-2007 had passed an interim order directing  W.P.(C) No. 8706/2007 -:6:- the concerned respondents to report '8' vacancies of Staff Nurse to the PSC; though consequential advice pursuant to the same is yet to be made. Based on the submission made by the learned Government Pleader, it has to be declared that the actual number of vacancies that could have been reported to the PSC is only '7' and not '8'. Taking note of the facts and circumstances, it is, therefore, made clear that the actual number of reportable vacancies should be confined to '7' alone. This means, out of the '8' vacancies ordered to be reported by virtue of the interim order of this Court, it could be easily said that '7' vacancies were validly reported and that the PSC could be directed to advise '7' candidates from Exhibit P1 rank list. 6. In the aforesaid circumstances, the fifth respondent is hereby directed to advise seven candidates in respect of the post of Staff Nurse from Exhibit P1 rank list pursuant to the vacancies already reported before the expiry of the rank list, as expeditiously as possible and at  W.P.(C) No. 8706/2007 -:7:- any rate, within a period of three months from the date of receipt of a copy of this judgment. The second respondent will issue necessary orders of appointment within a period of one month thereafter. The writ petition is allowed as above. Parties shall bear their costs. P.R.RAMACHANDRA MENON, JUDGE. skr 

Smt. M.P.Lilly vs State Of Kerala on 16 February, 2009

Kerala High Court

JUDGMENT M. R. Calla, J. 1. This Special Civil Application is directed against the order dated 19-6-1991, i.e., Annexure 'F' annexed with the petition, passed by the order of the Governor and issued under the signatures of the Secretary to the Government, Social Welfare Department, under clause (aa)(i)(1) of the Rule 161 (1) of the Bombay Civil Services Rules, 1959 whereby the petitioner was made to retire from the post of Social Welfare Officer (Training) at once in the interest of public service by payment of three months pay and allowances with the further mention that the inquiry pending against the petitioner shall continue under the relevant Rules of B.C.S.R. even after his retirement. 2. The petitioner was initially appointed on 5-2-1965 as Promotion Officer, Remand Home in the Social Welfare Department. According to the petitioner he was confirmed on this post later on. On 25-9-1965 the petitioner was made in-charge Probation Officer and according to the petitioner he was also confirmed on this post later on. The petitioner has averred that on 31-5-1970 he was transferred as Chief Probation Officer at Rajkot where he served upto 15-9-1972 and was then transferred to Surat on 20-4-1981 and, thereafter, he was posted as Child Marriage Prevention Officer, Palanpur as Class II Officer on 21-4-1981. While the petitioner was so working as a Class II Officer he was selected as a direct recruit by the G.P.S.C. for being appointed as Social Welfare Officer (Training) and the order appointing him as Social Welfare Officer (Training) on the basis of his selection by the G.P.S.C. was issued on 11-2-1982, which has been placed on record as Annexure 'A'. It is also the petitioner's case that under Recruitment Rules of 1983 the petitioner was eligible and qualified to be considered and promoted to Class I post, but he was not so promoted while his juniors were promoted as Class I and, therefore, the petitioner preferred a Special Civil Application No. 2831 of 1988 wherein the Rule was issued by this Court and on the very same day an order was also passed that further promotions to Class I Post will be subject to the result of that petition and that the Special Civil Application No. 2831 of 1988 is pending before this Court. While making reference to G.A.D. circular dated 30-3-1989 with regard to the recording, maintaining and communicating the Annual Confidential Reports the petitioner has stated that adverse remarks were conveyed to him for the years 1983-84, 1984-85, 1985-86 and 1986-87, which according to the petitioner were not required to be conveyed and should have been kept in a sealed cover because he had been appointed on probation as Social Welfare Officer (Training) and no order has been passed to continue the petitioner on long-term basis. Be that as it may, the fact remains that the adverse remarks for the aforesaid four years were conveyed to the petitioner and the petitioner preferred an Appeal against the adverse remarks of 1983-84 on 8-10-1984 and against the adverse remarks for the rest of the years, the petitioner states that he had preferred Appeal on 18-7-1988 and 23-7-1988. It is also the petitioner's case that he had submitted a representation on 6-6-1981 to decide his Appeals against the adverse remarks but despite the petitioner's representation his Appeals against the adverse remarks for the years 1983 to 1987 were not decided. The petitioner has also come with the case that in the year 1987 While fixing his pay he was fixed at lower scale and being aggrieved from that he had preferred a Civil Suit No. 368 of 1987 in the Court of Civil Judge (S.D.), Nadiad, wherein an injunction was granted protecting hill salary. It is the petitioner's case that, Civil Suit is still pending and the injunction is operating. It may also be pointed out that in the impugned order also whereby the petitioner has been given compulsory retirement, a reference has been made in Para 4 about the pendency of this Civil Suit and it has been mentioned that the matter with regard to the increment shall be decided as per the final decision in that Civil Suit. The petitioner has also stated that vide Memorandum dated 29-3-1988 the petitioner was subjected to a Departmental Inquiry on the charges enclosed with this Memorandum; he had filed the reply to this charge-sheet on 12-4-1988, no further proceeding were held in this inquiry after the filing of this reply. On 5-12-1990 he had filed a complaint against his superiors before the Vigilance Commission and, thereafter, during the pendency of the Departmental Inquiry, as aforesaid, the petitioner was subjected to compulsory retirement vide impugned order dated 19-6-1991 and aggrieved from this order of compulsory retirement dated 19-6-1991 the present petition has been preferred. 3. At this stage, Mr. R. J. Oza has appeared on behalf of the respondent-State of Gujarat and has submitted that he is not appearing in this case now. He has also submitted that so far no reply has been filed although the matter is pending since 1991. He submits that a day's time may be given for production of the relevant record, which will be produced tomorrow. The further dictation of this order was, therefore, deferred to 19-1-1999. On 19-1-1999, on the request of Mr. Oza dictation of the order was further deferred to 22-1-1999. 4. Whereas no reply has been filed by the respondent, on 22-1-1999, i.e., today, Mr. Oza has made submissions on the basis of the record made available to him and as per the instructions of Mr. B. R. Thakore, Under Secretary to the Government, Social Justice and Empowerment Department. A chart relating to the Annual Confidential Reports of the petitioner for the period from 1-4-1982 to 31-3-1991 running into 5 sheets has been produced to show the remarks recorded in the ACRs as also the available details with regard to the dates of communication of ACRs and the dates on which the representations were decided. It was also pointed out by Mr. Oza that as per the guidelines, the Committee to consider the case for compulsory retirement had met on 31-5-1989 and in the meeting of this Committee the petitioner's case was taken up for consideration for the purpose of compulsory retirement. It has been submitted that the ACRs for the period 1982-83 to 1988-89 were considered. It has also been submitted that the Committee also took into consideration the items of allegations that the petitioner had no authority under law to sanction his own increments and yet he had sanctioned his own increments and had also taken the loan of Rs. 20,000/- against House Building in relation to a house, which was in the name of his wife, and the petitioner had purchased this house from his wife so as to take the loan, which was not permissible. It was also submitted that the Committee also took into consideration the allegations, which were subject matter of anti-corruption inquiry against the petitioner with regard to the disbursement subsidy amount to Vans (Bamboo) Kamoar Sahakari Mandli. He has candidly stated that in this anti-corruption inquiry ultimately nothing was found against the petitioner. It has also been admitted that the allegation regarding the sanction of his own increments by the petitioner and the allegation with regard to the taking of a loan of Rs. 20,000/- for House Building etc., forming the subject-matter of the charge-sheet dated 29-3-1988 were also considered by the Committee against the petitioner. It has been further submitted that no inquiry proceedings whatsoever were held after the petitioner's reply dated 12-4-1988 and the said inquiry, which was pending at the time of the issue of the order of compulsory retirement in 1991, is yet pending and it has been sought to be explained that the further inquiry proceedings were not taken by the Department on the mistaken belief that there was some interim order against the holding of the inquiry by the Civil Judge (S.D.), Nadiad in Civil Suit No. 368 of 1987 whereas in fact there was no such stay or injunction against the holding of the inquiry against the petitioner. It has also been submitted that sometime in 1996, the said Civil Suit was dismissed in default and the intimation of this dismissal in default of the suit was received by the Department in July 1998 and, thereafter, on 6-1-1999 the record was called for from the Office of the Director for taking further action in the inquiry. 5. Mr. Manoj Popat, appearing for the petitioner, has submitted that even if the chart of the ACRSs, as has been produced by the Respondent, is taken into consideration, it will be found that there are adverse remarks against the petitioner for the period from 1-4-1982 to 31-3-1983 and 1-4-1983 to 31-3-1984, which have been maintained but for the period thereafter, i.e., from 15-10-1984 to 11-7-1986 no decision has been taken on his representations dated 22-7-1988 and 23-7-1988. While the only remark for the period 15-10-1984 to 31-3-1985 and 1-4-1985 to 17-9-1985 is that the Departmental Inquiry was pending. He had also pointed out from the very same chart that for the period from 12-7-1986 to 31-3-1987 there were favourable remarks that his work was good and commendable, although on this aspect of the matter it has been pointed out by Mr. Oza on behalf of the respondent that the remarks of his work being good and commendable were given by an Officer of equal rank, who was only holding additional charge, but the fact is that the Reviewing Officer also did not record any disagreement with these favourable remarks recorded in favour of the petitioner by the concerned Reporting Officer. For the period from 1-4-1987 to 31-3-1988 it has been pointed out by Mr. Manoj Popat on behalf of the petitioner that the Reporting Officer had agreed with the self-assessment given by the petitioner and the only remark was that petitioner was to be watched. It has also been pointed out that this remark for the period 1-4-1987 to 31-3-1988 that petitioner was to be watched was not conveyed to the petitioner. For the period from 28-4-1988 to 31-3-1989 also, while the petitioner has been assessed to be an average Officer, the adverse remarks recorded against him were not conveyed. It has also been pointed out that even for the period from 1-4-1989 to 31-3-1990 and 1-4-1990 to 31-1-1991 the Reporting Officer had not given adverse remarks and no adverse remarks were conveyed to the petitioner and all that has been recorded for this period is that the petitioner had been prematurely retired by an order dated 19-6-1991. Mr. Manoj Popat has pointed out that the only serious remarks for the period from 1-4-1982 to 31-3-1983 was that of suspected motive and for the period from 1-4-1983 to 31-3-1984, though a mention has been made about the complaints against him with regard to his work, conduct, impartiality and integrity, those complaints had not been subjected to inquiry and even if they were subjected to inquiry, nothing has been found against the petitioner and the petitioner's integrity was never found to be questionable and in any case after 1984 not even a little finger has been raised against his integrity at any point of time in any of the ACRs and, therefore, it was not at all a case in which the petitioner could be subjected to compulsory retirement under clause (aa)(i)(1) of Rule 161(1) of the Bombay Civil Services Rules, 1959 and the petitioner's compulsory retirement was not at all warranted on the ground of public interest. 6. The learned Counsel for the petitioner has submitted that in any case :- (a) the uncommunicated adverse remarks could not be taken into consideration against the petitioner, (b) the adverse remarks could not be said to have been recorded in accordance with the guidelines issued for the purpose and that the communication of the adverse remarks to the petitioner was itself violative of the Government Resolution dated 30-3-1989, (c) that in the facts and circumstances of this case, it is clear that the impugned order of compulsory retirement dated 19-6-1991 passed against the petitioner was a punitive order passed during the pendency of the Department Inquiry; it is a camouflage over the allegations of misconduct, which formed the subject-matter of inquiry and these allegations, which formed the subject-matter of inquiry, have in fact been considered by the Committee which met on 31-5-1989 and that even otherwise the mention of the factum of the pendency of inquiry in Para 3 of the impugned order by itself makes this order to be per se stigmatic, (d) that the impugned order lacks bona fides and the same had been passed on 19-6-1991 because the petitioner had made a complaint against his superior on 5-12-1990 and accordingly the order is mala fide, (e) that the petitioner's reply dated 12-4-1988 to the charge-sheet, as has been annexed with the Special Civil Application as Annexure 'E', would show that the charges were wholly misconceived against the petitioner, the charges were factually incorrect and the same had been framed without application of mind. 7. As against it, Mr. Oza on behalf of the respondent, has submitted that there was nothing wrong with regard to the communication of the adverse remarks to the petitioner and there is no violation of the Government Resolution dated 30-3-1989; even uncommunicated adverse remarks could be taken into consideration for the purpose of compulsory retirement in accordance with law, there was no legal impediment to take a decision to compulsorily retire the petitioner under Rule 161 of the B.C.S.R. even during the pendency of the inquiry and the mere mention of the fact in the body of the impugned order that the inquiry pending against him shall continue cannot make the order to be stigmatic, the order cannot be said to be penal in as much as it does not seek to deny any of the earned benefits to the petitioner and there was no question of the decision to retire the petitioner compulsorily to be mala fide on the ground that the petitioner had filed a complaint on 5-12-1990 against his superiors since the decision to give compulsory retirement to the petitioner had been taken in May 1989 based on the record prior to May 1989 only and the petitioner's so-called complaint dated 5-12-1990 is subsequent to the decision taken by the Committee in May 1989 to give retirement to the petitioner and it is on the basis of the recommendations of this Committee that the impugned order was passed by the Government. 8. I have considered the submissions made on behalf of both the sides as also the decisions, which have been cited on behalf of both the sides. 9. So far as the grievance regarding the communication of adverse remarks during the period of probation that the same should have been kept in sealed cover and that by communicating the same the Government Resolution dated 30-3-1989 had been violated is concerned, I find that if any adverse remarks is recorded and the same is conveyed to an employee, it does not prejudice the employee in any manner whatsoever. On the contrary, if the same are kept in sealed cover and the employee is not made known of those remarks, an employee may have a grievance that the same were not conveyed though they were adverse. In this view of the matter, the grievance with regard to the violation of the Government Resolution dated 30-3-1989 is wholly misconceived and is illusory and on that ground it cannot be said that these adverse remarks should not have been conveyed to the petitioner and even if conveyed that they could not be taken into consideration by the Committee on the strength of the Government Resolution dated 30-3-1989. It does not lead to any infirmity in the consideration of the petitioner's case for compulsory retirement and, therefore, this ground raised on behalf of the petitioner has no substance and the same is hereby rejected. 10. The grievance raised by the petitioner that uncommunicated adverse remarks could not be taken into consideration may not detain this Court any more in view of the law laid down by the Supreme Court in the decision reported in AIR 1994 SC 1261 (Union of India v. V. P. Seth), a decision which had been rendered by a Bench of three Judges of the Supreme Court. In para 2 of the judgment, the Supreme Court after taking note of the earlier decision reported in 1992 I CLR 610 SC (Baikuntha Nath Das v. Chief District Medical Officer, Baripada) and in 1992 I CLR 815 SC (Posts and Telegraphs Board v. C. S. N. Murthy), has held that uncommunicated remarks can certainly be considered for the exercise of powers of compulsory retirement. While quoting the principles in para 2 at item (v) it has been quoted as under :- "An order of compulsory retirement is not liable to be quashed by a Court merely on the showing that while passing it uncommunicated adverse remarks were also taken into consideration. That circumstance by itself cannot be a basis for interference". In view of this decision and the law laid down by the Supreme Court in no uncertain terms, I do not find it necessary to deal with the decision of this Court which have been cited on behalf of the petitioner because it is the aforesaid principle laid down by the Supreme Court which holds the field and the contrary view taken in any decision by any High Court whether prior to this decision or thereafter cannot be acted upon. 11. The impugned order of compulsory retirement on facts cannot be held to be mala fide merely because the petitioner had filed a complaint on 5-12-1990 and in the facts of this case, I find much force in the argument of Mr. Oza that the Committee had already recommended the petitioner's compulsory retirement way back in May 1998 and merely because the order was issued in June 1991 it cannot be said that the order of compulsory retirement was an outcome of petitioner's complaint, which was filed in December 1990. 12. Now, the question comes as to what would be the effect of the pendency of the Departmental Inquiry at the time when the order of compulsory retirement was passed and of the fact that in the body of the impugned order itself it was mentioned that the pending inquiry shall continue against the petitioner. Whether the impugned order of compulsory retirement is rendered to be punitive and stigmatic on these two grounds is the moot question for the consideration of the validity of the present impugned order dated 19-6-1991. So far as the factual position is concerned, it may be reiterated that the charge-sheet was issued on 29-3-1988, the petitioner filed the reply to the charge-sheet on 12-4-1988, no proceedings were held further and initially while the inquiry was pending, the Committee, which met in May 1989 and considered the question of petitioner's compulsory retirement, did take into consideration the charges, which were the subject-matter of inquiry and it is also not known whether this Committee also took into consideration the reply to the charge-sheet filed by the petitioner or not. It is also not in dispute that even uptil now no further inquiry proceedings have been held and the explanation, which has been given for not holding the inquiry, is far from convincing. It is a poor apology to say that he inquiry was not held under the misconception and mistaken belief that there was an injunction order against the inquiry by the Civil Court, whereas in fact there was no such injunction. It is also not in dispute that the civil suit had been filed in the year 1987, i.e., prior to the service of the charge-sheet dated 29-3-1998 and the inquiry as such was never under challenge in the Civil Suit itself. In the Civil Suit the petitioner had only raised a grievance against the fixation of his pay in the lower scale and merely because the dispute relating to increment or fixation in lower pay-scale was sub judice before the Civil Court, the inquiry could not be put in oblivion. It is, therefore, clear that the inquiry proceedings were subject-matter of the inquiry, were made use of by the Committee, which considered the petitioner's case for compulsory retirement and it cannot be said that these charges did not weigh with the Committee in arriving at the recommendations for his compulsory retirement. Mr. Manoj Popat has placed reliance on an unreported Division Bench decision of this Court rendered in Special Application No. 28 of 1990 in October 1990, which is also referred and relied upon in the case of J. M. Mehta v. State of Gujarat, 1991 II CLR 248 = (1991 (1) GLR 619) I find that both these decisions are based on the Supreme Court decision in the case of Ram Ekbal Sharma v. State of Bihar & Anr. reported in AIR 1990 SC 1368. In Ram Ekbal Sharma's case (supra) the Supreme Court took notice of the subsequent averments made by the State that the impugned order had been made to compulsorily retire the appellant from service under the relevant Rules as he was found to have committed grave financial irregularities leading to financial loss to the State and the impugned order cannot but be said to have been made by way of punishment and, therefore, the order was illegal and unwarranted and liable to be quashed. In the facts of the present case also, it is very clear that not only that the inquiry was pending, the Committee, while considering the case of compulsory retirement in May 1989, in fact has taken into consideration the charges, which formed the subject-matter of inquiry and which were yet to be inquired upon. Thus, the unproved charges have been taken into consideration for the purpose of taking the action of compulsory retirement. Further, it is also a factually admitted position that the factum of the pendency of the A.C.D. inquiry was also considered by the Committee and in fact subsequent to the petitioner's retirement nothing has been found against the petitioner in this ACD inquiry. True, it is that in normal course an order of compulsory retirement is neither punitive nor it cannot be said that it entails any penal consequences as such because the order of compulsory retirement on the ground of public interest does not deprive an employee any of his earned benefit, but the law is equally settled that in the facts of a given case if it is made to appear before the Court that the order of compulsory retirement is only a cover and in fact the order is founded on misconduct and that it has been passed only by short-circuiting the procedure of inquiry or it is otherwise made to appear before the Court on the basis of the circumstances attendant and preceding to the passing of the order of compulsory retirement that in fact the allegations of misconduct formed the heart and soul of the compulsory retirement, the form of the order is not conclusive and we have to go to the substance rather than the form and the Court has a right to unveil, remove the cover to examine the real nature of the order and for that purpose the Court can go behind the order also so as to determine the true nature of this order. In Ram Ekbal Sharma's case (supra) in para 28 it has been found after considering several decisions by the Supreme Court that the legal position which emerges is that even if an order of compulsory retirement is couched in innocuous language without making any imputations against the Government servant who is directed to be compulsorily retired from service, the Court, if challenged, in appropriate cases can lift the veil to find out whether the order is based on any misconduct of the Government servant concerned or the order has been made bone fide and not with any oblique or extraneous purposes. Mere form of the order in such cases cannot deter the Court from delving into the basis of the order if the order in question is challenged by the concerned Government servant and in arriving at this decision, reference has also been made to AIR 1984 SC 636 (Anoop Jaiswal v. Govt. of India), which was essentially a case of probationer and in that case also it was laid down that the law was now settled that, where the form of the order is merely a camouflage for an order of dismissal for misconduct, it is always open to the Court before which the order is challenged, to go behind the form and ascertain the true character of the order. To combat this argument raised on behalf of the petitioner, Mr. Oza has placed strong reliance on the Supreme Court decision reported in 1995 I CLR 398 SC (State of U.P. v. Abhai Kishore Masta) in which the Supreme Court has held in no uncertain terms that merely because the order of compulsory retirement is passed during the pendency of departmental inquiry, it should not necessarily moan that it is an order penal in nature or that it should be deemed to be an order penal in nature. In this case of State of U.P. v. Abhai Kishore Masta (supra) the order of compulsory retirement was passed during the pendency of the departmental inquiry and later on the petitioner had been subjected to the punishment of reduction in rank. It was not made clear on the basis of the record or material that the compulsory retirement order was based on allegations of misconduct and the Supreme Court took the view that the mere pendency of the inquiry at the time of the order of compulsory retirement is not conclusive to say that the order of compulsory retirement is punitive and, therefore, while upholding the order of punishment of reduction in rank imposed in the departmental inquiry, the Supreme Court remitted the matter back to the High Court to determine as to whether the order of compulsory retirement was penal in nature or not. This case may have been of help to the respondent, had the Committee, which considered the question of compulsory retirement of the petitioner, did not take into account the allegations and charges which were subject-matter of inquiry or it would not have adverted itself to the allegations, which were the subject-matter of pending A.C.D. inquiry. Therefore, in the facts of the present case, it is not simply a case in which the order of compulsory retirement has been passed during the pendency of the inquiry and, therefore it should be set aside, but it goes a step further because it is found and verified as a matter of fact on the basis of the position held out on behalf of the respondent itself that the charges and allegations, which were the subject-matter of inquiry, were taken into consideration by the Committee, which considered the petitioner's case for compulsory retirement on 31-5-1989 and it also took into consideration the allegations, which formed the subject-matter of A.C.D. inquiry, which was pending at that time and in which nothing was found against the petitioner subsequently. Therefore, the facts of this case go a step further beyond the mere factum of pendency of inquiry and it stands verified as a question of fact that this order of compulsory retirement is found on allegations of misconduct and, therefore, it is certainly an order punitive in nature and the same cannot be sustained in the eye of law. Besides this, the fact also cannot be lost sight of that in the order of compulsory retirement the respondent had stated categorically in para 3 that the pending inquiry shall continue. It would have been a different matter altogether had the Government passed an order dropping the departmental inquiry before passing the order of compulsory retirement. Instead of dropping the inquiry it has been categorically stated in the body of the order itself that the inquiry shall continue. When we say that an order of compulsory retirement is not a penalty, it is presumed that the order is couched in innocuous terms and it does not cast any aspersion or stigma against the person because the presumption is that the relevant consideration is public interest and even if a compulsorily retired person goes for any alternative employment, the order per se does not convey anything against that employee to the employer before him he seeks any employment. But in cases, where it is mentioned in the body of the order itself that some inquiry was pending against the employee at the time of compulsory retirement, it would certainly convey to any one, who reads that order that the person was facing the charges of misconduct and, therefore, it may come in his way even for the purpose of seeking fresh employment and in that way it certainly casts aspersion or stigma against him. Taking into consideration the facts and circumstances of this case in its entirety, this Court has no hesitation in holding that the impugned order dated 19-6-1991 is a punitive order, it seeks to cast aspersion or stigma against the petitioner, the order is founded on allegations of misconduct and it cannot be said that this order is based on a plain and simple appraisal of his ACRs only. In such circumstances, this Court finds that the impugned order cannot be sustained in the eye of law. The order dated 19-6-1991 Annexure 'F' annexed with the Special Civil Application, issued by the order of the Governor of Gujarat under the signatures of the Secretary to the Government, Social Welfare Department, is hereby quashed and set aside and whereas it has been given out that the petitioner has already attained the normal age of superannuation it is directed that the petitioner shall be entitled to all consequential benefits till the date of his retirement on attaining the age of superannuation and the retrial benefits as if the impugned order dated 19-6-1991 had never been passed against him. This Special Civil Application is allowed and the Rule is made absolute accordingly. No order as to costs. 13. Petition allowed.

Author: M R Calla

Narendrakumar V. Parikh vs State Of Gujarat on 18 January, 1999

Gujarat High Court

JUDGMENT T.V.R. Tatachari, J. (1) This Letters Patent Appeal has been filed by Sham Lal against the judgment of P. N. Khanna J., dated March 16, 1971, in Execution Second Appeal No. 107-D of 1966, whereby the learned Judge allowed the second appeal, set aside the judgments of the lower appellate Court and the trial Court dismissing an execution application, and restored the execution application for being further, proceeded with. (2) One Mangia Kumhar was a tenant of a premises (land), and a joint Hindu family firm Ram Chand Siri Ram, of which Siri Ram was the Karta (Manager), was the landlord of the said land. The said landlords filed a suit, no. 394 of 1959, in the Court of the Senior Subordinate Judge, Delhi, for the eviction of the tenant, and the suit was decreed on May 25, 1960, by Shri H. S. Ahluwalia, Subordinate Judge First Class, Delhi. The appeal against the decree filed by the tenant was dismissed on July 19, 1961. The tenant Mangal Kumhar died some time thereafter leaving behind him his wife, Mst. Rama, as his legal representative. It is not in dispute that the premises in question is not a building but land, and the same is situate in a slum area notified as such under the Slum Areas (Improvement and Clearance) Act No. 96 of 1955 (hereinafter referred to as the "Slum Areas Act"). The decree-holders filed an application. No. 62 of 1964, on May 1, 1964, for the execution of the decree against Mst. Rama, the legal representative of the deceased original judgment- debtor. Mst. Rama contested the application and pleaded that the decree could not be executed without the previous permission in writing of the Competent Authority under section 19 of the Slum Areas Act as amended by Amendment Act No. 43 of 1964. It was contended before the executing court on behalf of the decree holders that Mst. Rama was not a tenant and, as such, could not claim the protection of the Slum Areas Act, and that in any case since the amendment of section 19 of the Act had come into force after the decree had been passed, Mst. Rama was not entitled to claim the benefit of the amended section. The executing Court (Shri Prem Kumar Jain, Subordinate Judge Ii Class, Delhi) rejected the said contentions on behalf of the decree-holders, upheld the objection raised by Mst. Rama, and held that the execution application could be proceeded with without first obtaining the permission of the Competent Authority under the Slum Areas Act as amended by the Amendment Act No. 43 of 1964. Accordingly, the execution application was dismissed. (3) Against the said order of the executing Court in the execution application, the decree-holders filed an appeal, R.C.A. No. 296 of 1965. By his judgment, dated November 16, 1965, Shri K. S. Sidhu, Senior Subordinate Judge, Delhi, dismissed the appeal. The decree-holders then preferred Execution Second Appeal, No. 107-D of 1966, to this Court. During the pendency of the second appeal, Mst. Rama died on September 21, 1968, and her legal representatives were brought on record as respondents 1 to 6. The second appeal was heard by P. N. Khanna, J. By his judgment, dated March 16, 1971, the learned Judge held that section 19 of the Slum Areas Act which affords protection to the tenant, provides no similar protection to his legal representatives, and that they cannot, therefore, plead the provision in the section as a bar against their eviction. The learned Judge accordingly allowed the appeal, set aside the orders of the lower appellate Court and the trial Court, and restored the execution application for being further proceeded with. It is against the judgment of the learned single Judge that this Letters Patent Appeal has been filed by Sham Lal, one of the legal representatives of Mst. Rama. The two landlords are respondents 1 and 2, and the other legal representatives of Mst. Rama are respondents 3 to 7 in the appeal. (4) The point for determination in this appeal is whether the legal representatives of the original tenant, i.e. Mst. Rama or the appellant and respondents 3 to 7, were entitled to claim the protection against eviction contained in section 19(1)(b) of the Slum Areas Act. Section 19, as it stood prior to its amendment in 1964, was as follows :- 19."Tenants in slum areas not to be evicted without permission of the competent authority- (1) Notwithstanding anything contained in any other law for the time being in force, no person who has obtained any decree or order for the eviction of a tenant from any building in a slum area shall be entitled to execute such decree or order except with the previous permission in writing of the competent authority. (2) Every person desiring to obtain the permission referred to in sub-section (1) shall make an application in writing to the competent authority in such form and containing such particulars as may be prescribed. (3) On receipt of such application the competent authority, after giving an opportunity to the tenant of being heard and after making such summary inquiry into the circumstances of the case as it thinks fit, shall A by order in writing either grant such permission or refuse to grant such permission. (4) Where the competent authority refuses to grant the permission it shall record a brief statement of the reasons for such refusal and furnish a copy thereof to the applicant." (5) In the place of this section, a new section 19 was substituted by the Slum Areas (Improvement and Clearance) Amendment Act No. 43 of 1964, which came into force with effect from February 28, 1965. The new section reads as follows :- "19.Proceedings for eviction of tenants not to be taken without permission of the competent authority- (1) Notwithstanding anything contained in any other law for the time being in force, no person shall, except with the previous permission in writing of the competent authority- (a) institute, after the commencement of the Slum Areas (Improvement and Clearance) Amendment Act, any suit or proceeding for obtaining any decree or order for the eviction of a tenant from any building or land in a slum area; or (b) where any decree or order is obtained in any suit or proceeding instituted before such commencement for the eviction of a tenant from any building or land in such area, execute such decree or order. (2) Every person desiring to obtain the permission referred to in sub-section (1) shall make an application in writing to the competent authority in such form and containing such particulars as may be prescribed. (3) On receipt of such application, the competent authority, after giving an opportunity to the parties of being heard and after making such summary inquiry into the circumstances of the case as it thinks fit, shall by order in writing, either grant or refuse to grant such permission. (4) In granting or refusing to grant the permision under sub-section (3), the competent authority shall take into account the following factors, namely: (a) whether alternative accommodation within the means of the tenant would be available to him if he were evicted; whether the eviction is in the interest of improvement and clearance of the slum areas; (e) such other factors, as may be prescribed. (5) Where the competent authority refuses to grant the permission, it shall record a brief statement of the reasons for such refusal and furnish a copy thereof to the applicant." (6) It will be noticed that section 19(1), as it originally stood, prohibited the execution of a decree or order for the eviction of a tenant from a building in an area declared as slum area except with the previous permission of the Competent Authority. After the amendment, clause (a) of sub-section (1) of section 19 prohibits the very institution of a suit or proceeding for the eviction of a tenant except with the previous permission of the Competent Authority, and clause (b) of the said sub-section prohibits the execution of a decree or order obtained in any suit or proceeding instituted for the eviction of a tenant before the commencement of the Amendment Act, i.e. before February 28, 1965. (7) The question in the present case is whether the protection against eviction provided in clause (b) is available only to a tenant or whether, in case the tenant dies, the protection is also available to the legal representatives of the tenant. In C. R. abrol v. Administrator under the Slum Areas and others, 1970 R.C.R. 519(1), it has been held by a Division Bench of this Court (Hardayal Hardy and v. S. Deshpande JJ.) that the proceedings under section 19 can only be between a landlord and a tenant, that the exercise of his jurisdiction by the Competent Authority under section 19 depends on the fulfillment of the jurisdictional condition that the application under the section is made by a landlord for permission to evict a tenant, and that the Competent Authority is bound to make a preliminary inquiry into the existence of the relationship of landlord and tenant between the parties under section 19(1) with a view to be able to decide on the basis of such a preliminary inquiry whether the permission should be given to the landlord or not. In Bardu Ram v. Ram Chander, 1970 R.C.R. 982(2), a Full Bench of this Court (H.R. Khanna, C.J., S. N. Andley, S. N. Shankar, v. S. Deshpande and v. D. Misra JJ.), held that the word "tenant" in section 19 of the Slum Areas Act includes a person in occupation of a tenanted premises even though a decree or order for eviction has been obtained against him. The question, however, arises as to whether, if the tenant against whom such a decree was obtained dies, his legal representatives, who are in occupation of the tenanted premises, would be included in the expression "tenant" as contemplated by the Slum Areas Act. The term "tenant" has not been defined in the Slum Areas Act. A tenancy may be either contractual or statutory. In case of contractual tenancy, the estates of the Lesser and lessee (landlord and tenant) are estates of inheritance. If the tenant dies before the tenancy is terminated, his estate or interest in the property which is the subject matter of the tenancy, in the absence of anything to the contrary in the terms of the contract of tenancy, passes to his legal representatives vide Maharaja Tej Chund Behadur and Sri Kanth Ghose and others (1841-46) 3 M.T.A. 216(3), Gobind Lal Roy and Hamendra Narain Roy Chowdhry, (1890) I.L.R. 17 Calcutta 686 (P.C.) (4); and Mulla's Transfer of Property Act (Fifth Edition) page 641). But, in the case of statutory tenancy, i.e., where the tenancy has been terminated and the tenant, however, continues to be in occupation of the property by virtue of the provisions of a statute which prohibits his eviction vide abdul Ghafoor v. Asa Ram, 1971 R.C.R. 561),(5) the statutory tenant has merely a personal right to protect his possession, and has no estate or interest in the premises or property occupied by him, as pointed out by the Supreme Court in Calcutta Credit Corporation Ltd. and another v. Happy Homes Private Ltd., . Therefore, on the death of a statutory tenant, no estate or interest in the property passes to his legal representatives. Clause (b) of sub-section (1) of section 19 of the Slum Areas Amendment Act deals with a suit or proceeding instituted before February 28, 1965, for the eviction, of a tenant. Such a tenant is no doubt a tenant for the purposes of the Slum Areas Act as held by the Bench in Bardu Ram's case (supra), but he is only a statutory tenant as he, notwithstanding the decree or order of eviction, continues to be in possession of the property by virtue of the Delhi Rent Control Act, 1958, and the Slum Areas Act. Consequently, after the death of such a tenant, his legal representatives cannot claim any estate or interest in the property which was the subject matter of the tenancy. It follows that they cannot claim the protection provided in clause (b) of sub-section (1) of section 19 of the Slum Areas Amendment Act. (8) We may also point out that sub-section (4) of section 19 prescribes the factors which the Competent Authority has to take into account when granting or refusing to grant the permission under sub-section (3) of the section. Clause (a) of sub-section (4) of section 19 provides that in granting or refusing to grant permission under sub-section (3) of the section, the Competent Authority shall take into account the factor whether alternative accommodation within the means of the "tenant" would be available to him if he were evicted. The use of the word "tenant" in the said provision shows that it is the extent of the means of the tenant to acquire alternative accommodation that has to be considered by the Competent Authority under sub-section (4) of section 19 and not the means of a person who is not a tenant. Therefore, if clause (b) of sub-section (1) of section 19 were to be interpreted as applicable to persons other than the tenant, viz. his legal representatives, there would be no provision in the section providing any guide-lines to the Competent Authority to consider the means of the said legal representatives of the tenant, as sub-section (4) does not provide for any such consideration of the means of persons other than the tenant. Thus, the provision in sub-section (4) supports the view that' the protection against eviction provided in caluse (b) of sub-section (1) of section 19 of the Slum Areas Act is available only to the tenant and not to his legal representatives. (9) For the foregoing reasons, we agree with the view taken by the learned single Judge that the legal representatives of the deceased tenant MangalKumhar i.e., either Mst. Rama or the appellant and respondents 3 to 7, were not entitled to plead the provision in section 19(1)(b) as a bar against their eviction. (10) The Letters Patent Appeal fails and is dismissed. But, in the circumstances, we make no order as to costs. --- *** ---

Author: T Tatachari

Sham Lal vs Joint Hindu Family Firm Ram Chand ... on 11 August, 1972

Delhi High Court

Gujarat High Court Case Information System Print SCA/6285/2008 4/ 4 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 6285 of 2008 With SPECIAL CIVIL APPLICATION No. 6485 of 2008 To SPECIAL CIVIL APPLICATION No. 6496 of 2008 ========================================================= BHIKHUBHAI RANCHHODBHAI DABHI & 1 - Petitioner(s) Versus MAMLATDAR & 4 - Respondent(s) ========================================================= Appearance : MR RS SANJANWALA FOR MR DILIP L KANOJIYA for Petitioner(s) : 1 - 2. NOTICE SERVED for Respondent(s) : 1 - 3. MR JK SHAH ASST GOVT. PLEADER for Respondent(s) : 1 - 5. ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 12/08/2008 COMMON ORAL ORDER The petitioners mainly make grievance about the revenue authorities not certifying the entries in the record of rights of the agricultural lands pursuant to the orders passed by the Mamlatdar and ALT in this regard. Since the facts are almost similar in this group of petitions, the same are noted from Special Civil Application No.6285 of 2008. The petitioners have made prayer for the directions to the respondents to certify Entry No.1512 dated 02.02.2008 and Entry No.1528 dated 25.03.2008. By way of amendment, the petitioners further prayed for direction that the order dated 04.06.2008 passed by the Deputy Mamlatdar, Surat, by which, he cancelled the said entry by setting aside since the cancellation was only on the ground that the order of the Mamlatdar has yet not been taken in review by the Mamlatdar. The issue pertains to the question whether the lands involved in this group of petitions should be treated as new tenure lands or old tenure lands. The revenue records showed such lands as new tenure lands in the hands of the owner for many years. The land owner, however, contend that there was no basis or material to categorise such holding as new tenure. Earlier, similar dispute had reached this Court and the learned single Judge of this Court by judgment dated 17 / 18 / 23.01.2007 passed in Special Civil Application No.9609 of 2006 and cognate matters, held interalia that it would be Mamlatdar who could decide such issue under Section 70-O of the Bombay Tenancy and Agricultural Lands Act, 1948 (for short ?Sthe Act??). Consequently, in the present group of petitions, the Mamlatdar and ALT, Choryashi passed the order in favour of the land owners holding that mention of new tenure in the revenue record was not on the basis of any material on record and in fact, he held that the restrictions under Section 43 of the Act, are required to be removed. It appears that the petitioners purchased the land from the original land owners shortly after the Mamlatdar has passed his order on 01.02.2008. They have, thereafter, approached this Court in the present petition. Learned advocate Mr.Sanjawala for the petitioners submitted that on account of the stand taken by the Government, development of the lands is suffering and even if the Collector wishes to take the orders of the Mamlatdar and ALT under revision, the same should be done expeditiously. On the other hand, learned AGP Mr.J.K.Shah appearing for the Government on the basis of the affidavit filed today, submitted that the Mamlatdar in his order dated 01.02.2008 clearly provided that the order is subject to revision by the higher authority as well as subject to the Letters Patent Appeal which the Government proposes to file against the decision of the learned Single Judge dated 17 ? 18 ? 23.01.2007 in Special Civil Application No.9609 of 2006. He, therefore, submitted that the order of the Mamlatdar had not become operative before which the present petitioners have purchased the land from the original owner and breached the conditions of Section 43 of the Act. He further submitted that the orders of the Mamlatdar & ALT is under contemplation for being taken up for review by the appropriate authority. He further submitted that Letters Patent Appeal filed by the State Government is pending before the Division Bench. Having heard learned advocates appearing for the parties and having considered the facts arising in this group of petitions, the main prayer made by the learned advocate for the petitioners for an early conclusion of the issue of the order passed by the Mamlatdar & ALT can be considered. It is not in dispute that the Mamlatdar and ALT in pursuance of the order passed by this Court in Special Civil Application No.9609 of 2006, has already adjudged the question of validity of the lands being new tenure lands. Of course, the Mamlatdar made his own order subject to revision by the higher authority as well as subject to the outcome of the Letters Patent Appeal that the Government may file. At this stage, if the Collector finds that such order is required to be taken under revision, it is always open for him to do so in accordance with law. However, considering the urgency involved and long time since the petitioners are awaiting clarity in this regard, it would be proper to provide that such revision if initiated be concluded expeditiously. Under the circumstances, petitions are disposed of by giving following directions. (1) The Collector concerned shall take appropriate decision whether the orders of the Mamlatdar and ALT need to be taken in revision within four weeks from today. (2) If the Collector decides to take the orders of the Mamlatdar under revision, such revision may be decided after hearing the concerned persons expeditiously and preferably within three months from the Collector taking such decision to take orders of the Mamlatdar under revision. (3) Such an exercise shall be subject to further orders that the Division Bench may pass in Letters Patent Appeal that has been filed by the Government against the decision of the learned Single Judge in Special Civil Application No.9609 of 2006 and connected matters. With these directions, all petitions of the group are disposed of. Direct Service is permitted. ( Akil Kureshi, J. ) kailash     Top

Author: Akil Kureshi,&Nbsp;

Bhikhubhai vs Mamlatdar on 12 August, 2008

Gujarat High Court

Court No. - 9 Case :- CRIMINAL MISC. WRIT PETITION No. - 10444 of 2010 Petitioner :- Rajeev And Others Respondent :- State Of U.P. & Ors. Petitioner Counsel :- Girish Tiwari Respondent Counsel :- Govt. Advocate Hon'ble Vijay Manohar Sahai,J. Hon'ble Vikram Nath,J. We have heard learned counsel for the petitioners and learned AGA appearing for the State-respondents. Considering the facts and circumstances and the allegations made in the impugned F.I.R., the Writ Petition is disposed of with the direction that till the submission of report by the police under Section 173(2) Cr.P.C. the petitioners shall not be arrested in Case Crime No. 36 of 2010, under Sections 498A, 323, 504, 506 I.P.C. and Section 3/4 D.P. Act, Police Station Mahila Thana, District Rampur. Order Date :- 16.6.2010 Akv

Rajeev And Others vs State Of U.P. & Ors. on 16 June, 2010

Allahabad High Court

Gujarat High Court Case Information System Print CR.MA/9902/2008 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 9902 of 2008 In CRIMINAL APPEAL No. 1458 of 2008 ========================================================= LAXMANJI SURSANGJI THAKOR - Applicant(s) Versus STATE OF GUJARAT - Respondent(s) ========================================================= Appearance : MR VIKRAM J THAKOR for Applicant(s) : 1, MS.ML SHAH APP for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE H.B.ANTANI Date : 30/07/2008 ORAL ORDER Learned advocate Mr.V.J. Thakor for the petitioner submits that as the chargesheet is not filed, he wants to withdraw the petition. Permission is granted. The petition stands rejected as withdrawn. (H.B.ANTANI, J.) Hitesh     Top

Author: H.B.Antani,&Nbsp;

Laxmanji vs State on 30 July, 2008

Gujarat High Court

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

Vinay Tewari S/O Mahesh Chandra ... vs State Of U.P. Thru Principal ... on 25 August, 2010

Allahabad High Court

Court No. - 9 Case :- WRIT - C No. - 38515 of 2010 Petitioner :- Abdul Rahman & Others Respondent :- Civil Judge (S.D.) Deoband Saharanpur & Another Petitioner Counsel :- Anurag Pathak Hon'ble Vijay Manohar Sahai,J. Hon'ble Mrs. Jayashree Tiwari,J. Heard learned counsel for the petitioners and learned Standing counsel appearing for the respondents. This petition has been filed for expediting the hearing of suit filed in the year 2007. We do not find any reason to expedite the hearing of the suit out of turn, however it is always open for the petitioner to file an appropriate application before the District Judge, Saharanpur. Subject to the observations made above. The writ petition is devoid of any merits and is accordingly dismissed. Order Date :- 13.7.2010 Monika

Abdul Rahman & Others vs Civil Judge (S.D.) Deoband ... on 13 July, 2010

Allahabad High Court

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Const. 952670531 C.P. Mohammad ... vs State Of U.P. And Others on 28 August, 2010

Allahabad High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.27291 of 2010 INDU YADAV Versus STATE OF BIHAR ----------- m.p. ( Mandhata Singh, J.) 2. 31. 08. 2010. As prayed for, put up this case after two weeks. In the meantime no coercive steps shall be taken against the petitioner in connection with Complaint Case No. 622 ( C ) of 2009 pending in the court of S.D.J.M., Patna City.

Indu Yadav vs State Of Bihar on 31 August, 2010

Patna High Court - Orders

Gujarat High Court Case Information System Print SCA/17258/2010 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 17258 of 2010 ================================================= SHAILESHBHAI MOHANBHAI - Petitioner Versus BOTAD NAGAR PALIKA - Respondent ================================================= Appearance : MR TR MISHRA for Petitioner: None for Respondent: ================================================= CORAM : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 10/01/2011 ORAL ORDER Notice for final disposal returnable on 24/1/2011. It is expected that the other side to be ready with the matter as the entire issue is in a narrow compass. [ S.R. BRAHMBHATT, J ] /vgn     Top

Author: S.R.Brahmbhatt,&Nbsp;

Shaileshbhai vs Botad on 10 January, 2011

Gujarat High Court

JUDGMENT B.C. Kandpal, J. 1. This appeal, under Section 173 of the Motor Vehicles Act, 1988, has been preferred against the judgment and award dated 16-5-2005, passed by Motor Accident Claim Tribunal/Additional District Judge/IV F.T.C., Dehradun, in MACP No. 317 of 2002. 2. Brief facts of the case, giving rise to this appeal, are that deceased Ashok Kumar, was posted as Collection Amin. On 24-9-2002 at about 3.45 P.M. he along with Surendra Yadav was coming Haridwar from Doiwala riding in Scooter No. H.Y.X. 7024. When they reached near Aryanagar, Haridwar, Truck bearing registration No. U.P.N.1020 came there at a very high speed and dashed the Scooter on wrong side, due to which both the scooter riders died at the spot. The claimants filed the claim petition for compensation in lieu of death of Ashok Kumar. 3. The opposite parties, owner and driver of the offending truck filed written statement and denied the allegations made in the petition. They alleged that the accident had occurred due to own negligence of the scooter riders. The truck was insured with United India Insurance Company and the compensation, if any, is liable to be paid by the insurer. 4. The United India Insurance Company also filed written statement alleging therein that the driver of the offending truck had no valid driving license and the vehicle was being run against the terms of the insurance policy. 5. The learned Tribunal framed relevant issues in the case. Thereafter parties adduced evidence in support of their cases. The Tribunal after considering the material on record and hearing argument of learned Counsel for parties, allowed the claim petition for a sum of Rs. 7,03,420/- along with interest @ 6% per annum from the date of presentation of petition till the date of final payment payable by United India Insurance Company. 6. Feeling aggrieved, the United India Insurance Company has filed this appeal before this Court. 7. Heard learned Counsel for the parties and perused the record. 8. Learned Counsel for the appellant has submitted that the accident had occurred due to contributory negligence of the Truck driver as well as the Scooter, but the Tribunal has committed manifest error by not fixing contributory negligence on the part of scooter. He also submitted that the Tribunal has misinterpreted the salary certificate filed by the claimants and assessed the wrong net income of the deceased. He also contended that the multiplier adopted by the Tribunal is also on higher side and the amount of compensation is liable to be reduced. 9. On the other side learned Counsel for the claimants/respondents has submitted that the accident took place due to sole negligence of Truck driver, therefore, the Tribunal was justified in fixing the sole liability of the Truck. The Tribunal has taken a correct approach while considering the salary certificate and the impugned award is liable to be maintained. 10. So far as the submission raised by the learned Counsel for the appellant, pertaining to contributory negligence is concerned, the Tribunal has framed issue No. 2 on the point. The allegation of the claimants is that the offending Truck was being driven at a high speed and at the place of accident, it went to wrong side extreme to the right side of the road and dashed the truck due to which the Truck dragged the scooter for some distance and accident has occurred. The above fact has been narrated by eye witness P.W.1, Suresh Chand, who was present at the spot as he was returning his home after filling petrol in his Motorcycle. From perusal of the site plan, prepared by the police during investigation, it is also clear that the Truck involved in the accident had reached to the wrong side and dashed the scooter and thereafter it went down in a stream. To rebut the above evidence adduced by the claimants, no cogent and reliable evidence has been adduced from other side. I find that the Tribunal was quite justified in holding the sole negligence on the part of the offending truck involved in the accident. The submission of the learned Counsel for the appellant raised on the point of contributory negligence has no substance. 11. So far as quantum of compensation is concerned, from perusal of record reveals that the deceased Ashok Kumar at the time of accident was posted as Collection Amin in Tehsil Office Rishikesh. Salary certificate of the deceased has been produced before the tribunal, according to which after government deduction he was getting Rs. 5803/- net salary per month and after making 1/3rd deduction towards personal expenses the dependency of the claimants come to Rs. 3,869/- per month the annual dependency comes to Rs. 3,869/- x12 = Rs. 46,428/-. The finding of the Tribunal on point of assessment of salary of the deceased is perfectly justified and do not require interference by this Court. 12. However, the multiplier of 15 adopted by the Tribunal appears to be wrong. The age of the deceased at the time of accident was 41 years. The Hon4ble Apex Court in the Case of New India Assurance Co. Ltd. v. Smt. Kalpana and Ors. reported in 2007(1) Supreme 514, has held that the highest multiplier has to be adopted for the age group of 21 years to 25 years when an ordinary citizen starts independently earning. In the above case the deceased was 33 years of age and the Hon4ble Apex Court applied the multiplier of 4134. In an another case of Tamil Nadu State Transport Corporation Ltd. v. S. Rajapriya and Ors. reported in 2005(4) Supreme 87, the Hon4ble Supreme Court has adopted the multiplier of 4124 where the deceased was 38 years of age. In the case of The Managing Director, TNSTC v. The Managing Director, TNSTC reported in 2007(5) Supreme 301, the Hon4ble Apex Court applied the multiplier of 4124 where the deceased was 37 years of age. Therefore, the multiplier which has been applied by the Tribunal in the instant case appears to be wrong in view of the aforesaid judgments of the Hon4ble Apex Court. The principle which has been propounded by the Hon4ble Apex Court in applying the multiplier in the cases of the fatal accident has been elaborately discussed and in view of the several pronouncements of the Hon4ble Apex Court the multiplier in the present case should have been applied as 4104. Therefore after applying the multiplier of 4104 the total amount of compensation comes to Rs. 46,428 x10= Rs. 4,64,280/-. The Tribunal also awarded Rs. 5000/- towards loss of consortium and love and affection and Rs. 2,000/- for funeral expenses., which shall remain intact. Therefore, the total compensation comes to Rs. 4,71,280/-. The interest indicated by the Tribunal in the impugned judgment is also to remain intact. 13. Accordingly, the appeal is partly allowed. The impugned judgment and award is modified to the extent that the amount of compensation to be awarded in favour of the claimants will be Rs. 4,71,280/- instead of Rs. 7,03,420/- as has been awarded by the Tribunal. 14. As the amount of compensation has been reduced by this Court, therefore, the apportionment of the amount to the claimants is to be arranged as follows: (i) Out of the total amount of compensation, Rs. one lac each will be paid to Km. Rubeika and Km. Monika, minor daughters of the deceased, and this amount will be deposited in the Fixed Deposit in some nationalized bank till they attain the majority. (ii) Out of the balance amount Rs. 50,000/- will be paid to Master Albert, minor son of the deceased and this amount will be invested in Fixed Deposit in some nationalized bank till he attains the majority. (iii) Rs. 50,000/- will be paid to Mohabbat Massey, father of the deceased. (iv) Rest of the amount shall be paid to Smt. Seema Massey, widow of the deceased. 15. The excess amount, if deposited, by the Insurance Company, shall be withdrawn by it.

Author: B Kandpal

United India Insurance Company ... vs Smt. Seema Massey W/O Late Ashok ... on 14 March, 2008

Uttaranchal High Court

ORDER M.Y. Eqbal, J. 1. Heard the parties. 2. The petitioner has challenged the order as contained in letter dated 8.2.2003 by which the respondents have decided to superannuate the petitioner on 30.6.2003. This writ petition was filed on 23.6.2003. 3. I am fully aware of the settled proposition of law that the dispute with regard to date of birth between the employer and the employee cannot be gone into and decided by the writ Court under Article 227 of the Constitution of India. But in the peculiar facts and circumstances of this case the writ Court can interfere with the impugned letter whereby petitioner has been sought to be compulsory retired w.e.f. 30.6.2004. 4. Petitioner's case is that he joined the services of the respondents on 24.2.1971. On the date of joining his date of birth as recorded in the service records is 20.6.1944. The said date of birth is mentioned in each and every service documents of the petitioner maintained by the respondents. It is contended by the petitioner that in the Admit Card, Matriculation Certificate etc. the date of birth of the petitioner has been mentioned as 20.6.1944. It is submitted on behalf of the petitioner that ignoring all these documents the respondents have illegally issued the impugned letter superannuating the petitioner w.e.f. 30.6.2003. In support of his case the petitioner has annexed series of documents. 5. Respondents have filed their counter-affidavit disputing the date of birth of the petitioner but they have not annexed any documentary evidence in support of their contention. It is interesting to reproduce paragraph-7 of the counter-affidavit which reads as under :-- "The petitioner was appointed on 24.2.1971 and at the time of his appointment, he filled up his personal date form by disclosing his date of birth as 20.6.1944 and declaring his age as 27 years 8 months. Since he did not produce any document proof in support of his date of birth, therefore, the date of birth declared by him as 27 years 8 months was recorded in his personal file and in his service record." 6. From the statement made in paragraph-7 of the counter-affidavit, as quoted hereinabove, it is clear that the petitioner disclosed his date of birth as 20.6.1944. In paragraph-14 of the counter-affidavit it is stated that the petitioner's age at the time of appointment was 27 years 8 months when he had filled up the personal date form. According to them also the petitioner joined on 24.2.1971. In paragraph-15 of the counter-affidavit it is stated that in the service record of the petitioner the age of the petitioner has been shown as 27 years 8 months. 7. Curiously enough, not a single document has been annexed with the counter-affidavit much less the personal data form or service record to show that the petitioner admitted his age as 27 years 8 months at the time of appointment. On the contrary, paragraph-7 of the counter-affidavit shows that the respondents admitted that in the personal data form the date of birth of the petitioner was mentioned as 20.6.1944 declaring his age as 27 years 8 months. 8. In this view of the matter, this Court can certainly draw an adverse inference for non-production of the most important documents relied by the respondents which raises suspicion with regard to the contention of the respondents. In my view, therefore, the action of the respondents in superannuating the petitioner on 30.6.2003 is illegal and unjustified. The petitioner is entitled to continue in service till 30.6.2004 taking his date of birth as 20.6.1944. 9. With aforesaid observation, this writ petition is allowed and the impugned letter is quashed. The petitioner shall deemed to be continuing in service till the date of superannuation on 30.6.2004.

Author: M Eqbal

Chhotu Lal Rana vs Managing Director, Bokaro Steel ... on 25 March, 2004

Jharkhand High Court

[Section 322(1)] [Section 322] [Complete Act]

Central Government Act

IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.28976 of 2010 NEERAJ KUMAR @ BITTU, son of Ashok Singh Versus THE STATE OF BIHAR ----------- 3/- 29.11.2010 Heard learned counsel for the parties. It is alleged that all the accused persons including this petitioner on the date of occurrence abused the informant, assaulted on his head with farsa and committing theft of different articles. Admittedly, parties are at litigating terms and according to learned counsel for the petitioner, though, informant, namely, Shambhu Singh was referred to P.M.C.H. from Primary Health Centre but that should be on his pressure only otherwise injury on forehead is found skin deep. Thus, having regard to the facts and circumstances of the case, in the event of arrest of surrender within one month from the date of communication of this order, the above named petitioner shall be released on bail on furnishing bail bond of Rs. 10,000/- (ten thousand) each with two sureties of the like amount each to the satisfaction of the Chief Judicial Magistrate, Vaishali at Hazipur in Bidupur P.S. Case No.43 of 2010, subject to the condition as laid down under section 438 (2) Cr. P.C. (Mandhata Singh, J.) Ashwini/-

Neeraj Kumar @ Bittu vs The State Of Bihar on 29 November, 2010

Patna High Court - Orders

IN THE HIGH COURT OF KERALA AT ERNAKULAM Bail Appl..No. 4936 of 2010() 1. SANTHOSH.G., AGED 30 YEARS, ... Petitioner 2. MANOJ.A., AGED 31 YEARS, 3. GANGADHARAN, AGED 35 YEARS, 4. MANOJ.K., AGED 31 YEARS, 5. SUBASH.A., AGED 31 YEARS, 6. ABHILASH P., AGED 30 YEARS, Vs 1. STATE OF KERALA, REPRESENTED BY THE ... Respondent For Petitioner :SRI.NIREESH MATHEW For Respondent :PUBLIC PROSECUTOR The Hon'ble MR. Justice V.RAMKUMAR Dated :31/08/2010 O R D E R V. RAMKUMAR, J. ......................................... B.A. No. 4936 of 2010 .......................................... Date: 31.08.2010 ORDER Petitioners who are accused Nos.1 to 6 in Crime No. 302/2010 of Nenmara Police Station for offences punishable under Sections 143,147,448,294(b),506(i) and 353 read with 149 I.P.C., seek anticipatory bail. 2. The learned Public Prosecutor opposed the application. 3. Anticipatory bail cannot be granted in a case of this nature. But at the same time, I am inclined to permit the petitioners to surrender before the Investigating Officer for the purpose of interrogation and then to have their application for bail considered by the Magistrate having jurisdiction. Accordingly, the petitioners shall surrender before the investigating officer on 13.09.2010 or on 14.09.2010 for the purpose of interrogation and recovery of incriminating material, if any. The petitioners shall thereafter be produced before the Magistrate who on being satisfied that the petitioners have been interrogated by the police shall consider and dispose of their application for regular bail preferably on the same date on which it is filed. This petition is disposed of as above. V.RAMKUMAR, JUDGE sj 

Santhosh.G. vs State Of Kerala on 31 August, 2010

Kerala High Court

JUDGMENT 1. This appeal is filed by the plaintiff challenging the judgment and decree dated 15-4-1989 passed by the IV Additional City Civil Judge, Mayo Hall, Bangalore City, in O.S. No. 8443 of 1980 (Old No. 216 of 1980) insofar as rejection of his suit for specific performance directing defendant 1 to execute the sale deed in respect of the suit schedule property is concerned. Original defendants 2 to 4 have filed cross objections challenging the judgment and decree of the Trial Court insofar as the Findings against them are concerned. 2. The facts of the case are as follows: The suit schedule property bearing Old No. 14, New No. 86, situate in Richmond Road, Civil Station, Bangalore, belongs to defendant 1-D. Syed Younous. As per the plaint allegations, in the year 1978 when defendant 1 was on the look out for a purchaser for the schedule property since he had not been getting proper returns therefrom; defendant 1 had contacted the plaintiff. After several meetings between the plaintiff and defendant 1, the plaintiff agreed to purchase the property for a consideration of Rs. 5,00,000/- free from all encumbrances and defendant 1 agreed to sell the same; as such, an agreement dated 23-8-1978, vide Exhibit P. 1, came to be executed between the parties; and as per the terms of the agreement, an advance of Rs. 10,000/- was paid at the time of agreement and it was further agreed that defendant 1 should give the plaintiff a reasonable time of two years for payment of the balance and to get the sale deed executed and registered either in his name or in the name of his nominee. It is contended that during the relevant period, it was necessary for the owner to obtain permission of the competent authority under Section 27(2) of the Urban Land (Ceiling and Regulation) Act (hereinafter referred to as the 'Act'). As such, a draft sale deed was prepared and the same was submitted along with an application for permission by defendant 1 to the competent authority, Urban Land Ceiling, Bangalore, on 12-5-1980 to sell the schedule property in the name of the nominee of the plaintiff. It is alleged that, when the said application was pending consideration, the plaintiff came to know that defendant 1 had filed similar application under Section 27(2) of the Act seeking permission to sell the very property in favour of defendants 2 to 4 for a consideration of Rs. 5,70,000/-. As defendant 1 submitted two applications seeking permission for alienation of the same property in favour of two different parties, the dispute was raised before the competent authority. In the application seeking leave to sell the schedule property in favour of defendants 2 to 4 it was mentioned that there is an agreement of sale in favour of defendants 2 to 4 on 15-11-1978. The plaintiff filed his objections before the competent authority contending that the alleged agreement dated 15-11-1978 in favour of defendants 2 to 4 was a fraudulent transaction with intent to deprive the plaintiff of his right under the agreement dated 23-8-1978. Considering the rival contentions, the competent authority held that, as the dispute is of a civil nature and has to be decided by competent forum and as such by the order dated 26-6-1980 both the applications under Section 27(2) of the Act one relating to the sale in favour of the plaintiff and the other in favour of defendants 2 to 4 were rejected. Even thereafter defendant 1 on 27-6-1980 filed another application under Section 27(2) of the Act once again seeking permission to sell the property in favour of defendants 2 to 4 to which the plaintiff has already filed his objections and the matter is pending. In view of these developments, the plaintiff contended that as defendants 1 to 4 have colluded together and have created fraudulent documents with the sole intention of making unlawful gain depriving the plaintiff of his legitimate right even though he was always ready and willing to perform his part of the contract, and as such he approached the Civil Court in the present suit praying for a judgment and decree of specific performance directing defendant 1 to execute the registered sale deed conveying the suit schedule property in his favour in accordance with the terms and conditions of the agreement dated 23-8-1978 and to handover possession. In the alternative, it is also prayed that for any reason, if the Court holds that this relief cannot be granted to the plaintiff, the Court be pleased to grant a decree for damages of a sum of Rs. 3,13,450/- together with interest and cost along with the advance of Rs. 10,000/- paid under the agreement. This suit was filed on 30-7-1980. On receipt of the notice, defendant 1 appeared through his Counsel and filed his written statement, inter alia, contending that the plaintiff has obtained and got executed the agreement in his favour using undue influence, coercion and fraud and as such the same is not binding nor is executable against him; that much prior to entering into the agreement with the plaintiff, he (defendant 1) had entered into an agreement with one E.P. Varuny of Bangalore on 11-7-1975 for the sale of the property. It is contended that subsequently the said Varuny assigned it in favour of defendants 2 to 4 for which he (defendant 1) had no objection. Accordingly, on 4-5-1978 another agreement was entered into between defendant 1 on one hand and defendants 2 to 4 on the other. On that day a token advance of Rs. 101/- was also paid to him. Thereafter, a formal agreement came to be entered into on 15-11-1978 between defendant 1 and defendants 2 to 4. It is contended that, in fact, there was an agreement between defendant 1 and the said Varuny for selling the suit schedule property with vacant possession and in this regard, though defendant 1 had filed an eviction suit against his tenant, he was unable to get vacant possession and as such the agreement could not culminate into a sale deed. However, at that stage the plaintiff entered into picture and promising to settle the matter with the previous agreement holders, viz., Varuny and defendants 2 to 4, and also to take the suit schedule property without actual possession and as such believing the words of the plaintiff a formal deed of agreement was entered into in his favour. It is contended that the agreement in favour of the plaintiff was only a speculative agreement which was got executed under undue influence and coercion and fraud. It is also contended that another property belonging to defendant 1 situate at Dickenson Road was also for sale and similar agreement was executed in favour of defendants 2 to 4 and, as there was also difficulty in giving vacant possession, the plaintiff has in fact forced defendant 1 to sell that property also to his brother which is the subject-matter of another suit. It is further contended that defendant 1 and the plaintiff agreed to get the regular sale deed executed and registered and complete the transaction within 2 months, but by playing fraud the plaintiff has introduced the time of two years instead of two months in the agreement which also shows that the entire effort of the plaintiff was to defraud defendant 1 and also defendants 2 to 4. It is further contended that defendant 1 had never intended to sell the property in favour of the plaintiff. He has further contended that the agreement in favour of the plaintiff is a speculative transaction under which the plaintiff gets no right and the agreement is therefore not binding on him (defendant 1). On these and other grounds, defendant 1 prayed for dismissal of the suit. Defendants 2 to 4 on entering appearance filed their common written statement inter alia reiterating the pleadings of defendant 1. It is further contended that defendants 2 to 4 wanted to invest and have property in Bangalore and as such, after selling their properties at Mudigere, entered into an agreement with defendant 1 for purchase of the suit schedule property as well as the property at Dickenson Road. They have paid a token advance of Rs. 101/- on 4-5-1978 itself and as the agree- meat was misplaced, they had to enter into another formal agreement dated 15-11-1978. It is further contended that as defendant 1 was unable to obtain vacant possession as agreed to, the execution of the sale deed and the registration thereof were to be postponed and in the meanwhile during the Urban Land Ceiling proceedings it was brought to their notice the fraudulent agreement of the plaintiff which they contested. Further, it is contended that in view of the fact that defendant 1 had entered into agreement with these defendants much prior to the agreement with the plaintiff and also the fact that there was a prior agreement between defendant 1 and Varuny which later came to be assigned in their favour, the agreement in favour of the plaintiff; even if it is true, would be latter in point of time and as such it is these defendants who have prior right to purchase the property and not the plaintiff and as such prayed for dismissal of the suit. 3. Based on these pleadings, the Trial Court framed the following issues: "1. Whether the plaintiff has been ready and willing to perform his part of the contract as alleged? 2. Whether first defendant proves that the agreement in favour of the plaintiff is brought about by undue influence, coercion and fraud as alleged? 3       (a) Whether the first defendant had already entered into an agreement on 4-5-1978 with defendants 2 and 4 for sale of suit          property as alleged?          (b) If so, whether first defendant brought to the notice of the plaintiff, the said alleged earlier agreement dated 4-5-1978? 4. Whether the agreed period was only 2 months for the suit agreement and not 2 years as alleged by the first defendant? 5. Whether the plaintiff speculated in taking suit agreement by taking a chance as alleged? 6. Whether the suit is not maintainable? 7. Whether the suit is bad for non-joinder of necessary parties as alleged? 8. Whether there was an earlier agreement dated 11-7-1975 under which first defendant agreed to sell the suit property to one Varuny? 9. Whether Mr. Varuny had assigned his rights in the agreement in favour of defendants 2 and 4? 10. Whether by virtue of the said agreement defendants 2 and 4 had a prior right to purchase the suit property as alleged? 11. Whether plaintiff is entitled to the relief of specific performance? 12. Whether, alternatively, the plaintiff is entitled to the refund of the advance amount of Rs. 10,000/-, interest on which and compensation or damages for breach of contract as claimed in para 9 of the plaint? 13. To what relief?" 4. To substantiate their respective claims, the plaintiff got himself examined as P.W. 1 and got marked Exhibits P. 1 to P. 17. Defendant 1 gave evidence as D.W. 1, defendant 2 as D.W. 2 and one Ayath Khan as D.W. 3, a witness alleged to the agreement dated 4-5-1978 in favour of defendants 2 to 4. The defendants also got marked Exhibits D. 1 to D. 28. 5. After hearing the arguments and considering the rival contentions, the Trial Court held that the plaintiff has proved his readiness and willingness to perform his part of the contract; that defendant 1 failed to prove that the agreement in favour of the plaintiff is brought out due to undue influence, coercion and fraud; that defendant 1 had failed to prove the prior agreement dated 4-5-1978 between himself and defendants 2 to 4; that the agreement with the plaintiff was not a speculative agreement and that the suit is maintainable. However, on Issue Nos. 8 to 10 the Trial Court held that there was a prior agreement dated 11-7-1975 entered into by defendant 1 in favour of Varuny and that the said Varuny has assigned his right in the agreement in favour of defendants 2 to 4 and by virtue of the said assignment defendants 2 to 4 had prior right to purchase the suit property. On these findings the Trial Court held that the plaintiff is not entitled for a decree of specific performance of execution of the sale deed and handing over possession; but, he is only entitled for refund of the advance paid along with interest and also entitled for compensation of Rs. 50,000/- from defendant 1. Thus, by the impugned judgment and decree the Trial Court decreed the plaintiffs suit in part and while rejecting the claim of specific performance of the contract directed defendant 1 to pay a compensation and return of the advance in total Rs. 63,450/- with interest at 12% per annum. Hence, the present appeal by the plaintiff. 6. Sri Bhavanishankar Rao, learned Counsel for the appellant contended that the Trial Court even after holding Issue Nos. 1 to 7 in favour of the plaintiff committed an error in declining the grant of decree for specific performance only on the ground that there was an earlier agreement dated 11-7-1975 in favour of one Varuny and as such the subsequent agreement in favour of the plaintiff cannot be accepted; that the Trial Court has committed an error in holding that there was an assignment in favour of defendants 2 to 4 by the said Varuny and by virtue of the same it is defendants 2 and 4 who had prior right to purchase the property than the plaintiff; that the Trial Court was in error in holding that since the plaintiff had not filed any rejoinder contesting the claim of defendant 1 in respect of the agreement in favour of Varuny and as such the same would amount to admission; that the acceptance of the agreement, Exhibit D. 6, in favour of Varuny by the Trial Court is contrary to the principle laid down in respect of the proof of the document especially when the said Varuny is not examined by the defendants to prove the document; that the various admissions and the documents produced by the defendants themselves would show that the alleged agreement in favour of the said Varuny is a concocted document so as to deprive the legitimate right of the plaintiff and as such the same should not have been accepted by the Trial Court; that the Trial Court ought to have seen that the alleged assignment in favour of defendants 2 and 4 was after the filing of the suit and as such no value could have been attached to the same so as to bind it on the plaintiff, as the same is hit by lis pendens and that the Trial Court has committed an error in rejecting the claim of the plaintiff for specific performance solely on Exhibits D. 6 to D. 8 which are not proved in accordance with law. 7. On the other hand, Sri Mujeeb, learned Counsel for defendant 1/respondent 1 argued in support of the findings of the Trial Court. 8. Sri V. Tarakaram, learned Senior Counsel appearing for defendants 2 to 4 who are respondents 2 to 4 and also cross objectors, besides arguing in support of the findings of the Trial Court further contended that the findings of the Trial Court on Issue Nos. 3(a) and 3(b) are erroneous and illegal; that the Trial Court was in error in not considering the evidence on record which is to the effect that it was the plaintiff who committed fraud on defendant 1 and got the agreement in his favour under coercion and that the Trial Court was in error in disbelieving the agreement dated 4-5-1978 entered into between defendant 1 on one hand and defendants 2 to 4 on the other by holding that it is a collusive and fraudulent agreement. On these and among other grounds they prayed that apart from dismissal of the appeal, the findings on Issue Nos. 3(a) and 3(b) are also liable to be set aside. 9. The learned Counsel for the respective parties have relied upon various pronouncements which we will refer to in due course. 10. In view of the rival contentions, the following points arise for consideration: 1. Whether the Trial Court was justified in holding that- (a) there was an agreement dated 11-7-1975 under which defendant 1 agreed to sell the property to one Varuny; (b) whether the said Varuny had assigned his right under the agreement in favour of defendants 2 and 4; (c) whether by virtue of the said assignment defendants 2 and 4 had prior right to purchase the suit property as alleged; 2. Whether the Trial Court was justified in declining the plaintiff the relief of specific performance of the agreement; 3. Whether the finding of the Trial Court that there was prior agreement dated 4-5-1978 between defendant 1 and defendants 2 and 4 which being prior to the plaintiffs agreement disentitles him of the relief; and 4. What is the relief? 11. So far as the prior agreement dated 11-7-1975, vide Exhibit D. 6, between defendant 1 and the said Varuny is concerned, the Trial Court has held that, though this fact was mentioned in the written statements, as the plaintiff has not filed any rejoinder, the existence of such agreement is deemed to have been accepted by him. 12. No doubt, defendant 1 in his written statement has taken up a contention about the prior agreement, vide Exhibit D. 6, with the said Varuny. It is true that the plaintiff could have filed a rejoinder challenging the true and binding nature of this prior agreement. But, in our view, under the provisions of Order 8, Rule 9 of the CPC, law does not compel plaintiff to file rejoinder. In our view the fact that it was defendant 1 who has pleaded a new fact of existence of a prior agreement, the burden is on him to prove the same. Mere non-filing of rejoinder would not mean that the plaintiff is deemed to have admitted the same. The Trial Court, in our view should have firstly considered as to whether defendant 1 has proved the agreement, Exhibit D. 6, dated 11-7-1975 in favour of the said Varuny and only after giving a finding, could have considered the requirement, absence of pleading and the effect thereto. 13. So, we have to see whether defendant 1 has proved the existence of prior agreement dated 11-7-1975 between him and one Varuny. In this regard, defendant 1 in his written statement at paragraph 2 has stated thus: "This defendant, in fact was on look out for a purchaser as early as in 1975 and had made one more agreement of sale for the schedule premises before making an agreement of sale with defendants 2 and 4. This agreement was done on 11-7-1975 with one Mr. E.P. Varuny of Bangalore. . . . .". Thereafter, he says that the plaintiff was informed of the agreement and in spite of the said agreement the plaintiff promised to get the two previous agreements cancelled and the agreement in favour of the plaintiff was speculative one. It is further contended that later as the said Varuny assigned the agreement in favour of defendants 2 and 4 he consented for selling the property in favour of defendants 2 to 4 in continuation of the earlier agreement. 14. On the other hand, defendants 2 to 4 who have filed their independent written statement have stated that they had enquired with defendant 1 about any prior agreement in respect of the suit property with other person/s and only on the assurance of defendant 1 that there was no agreement they entered into the agreement with defendant 1 on 4-5-1978 and 15-11-1978. It is the specific pleading that only after filing of the suit, defendants 2 to 4 came to know of the agreement, Exhibit D. 6, with Varuny and as such got the agreement assigned in their favour by settling the matter with the said Varuny. 15. The evidence in this regard of D.W. 1 is to the effect that- "On 11-7-1975, I had entered into an agreement with one Varuny. I had agreed to give vacant possession to Varuny also. Since Cumberland did not vacate, I gave a letter to Varuny, seeking extension of time on the ground that the tenant has not vacated. After receiving summons in this case, I disclosed the earlier agreement of 11-7-1975 in favour of Varuny. On 31-1-1981 I took a letter from Varuny and got the agreement assigned in favour of defendants 2 to 4. I also agreed for the assignment. For Varuny's stamp agreement, I purchased the stamp paper". In paragraph 26 of the cross-examination he has stated that he informed the plaintiff about the agreement with Varuny, but he did not inform about it to Pinto for the reason that he was in urgent need of money and also the eviction case filed in respect of the same property was pending. Varuny had not issued any notice informing him (defendant 1) of his readiness to take the sale deed. The relevant portion reads thus: "I informed the plaintiff about the agreement with Varuny, but I have not informed about it to Pinto. I did not inform Pinto for the reason that I was urgently in need of money and also the eviction case filed in respect of the same property was pending. Varuny had not issued me any notice informing me of his readiness to take the sale deed. But he had orally told me that he was ready. It was in the year 1975. I replied him to wait for some more time saying that I had filed an eviction case against the tenant of the property. Subsequent to 1975 Varuny was orally asking me and telling me that he was ready but I was postponing and telling that the case of eviction is pending". In paragraph 27 he has stated thus: "Varuny is alive. I see Ex. D. 9 letter addressed to Varuny by me. It is a original letter addressed by me to him". This is what defendant 1 has stated in paragraph 28 of his written statement: "The very next day after I received the suit summons in this case, I informed Pinto about the existence of agreement in favour of Varuny". In support of and to corroborate the agreement, Exhibit D. 6, dated 11-7-1975 defendant 1 has relied upon a letter said to have written by him. vide Exhibit D. 9, and also the assignments by Varuny in favour of defendants 2 and 4, vide Exhibit D. 7, and his consenting letter for the assignment, vide Exhibit D. 8. 16. At the outset it is to be noted that, though admittedly the said Varuny is alive defendant 1 has not examined him for the reasons best known to him. The said Varuny was the best independent witness to prove the prior agreement dated 11-7-1975, vide, Exhibit D. 6. No explanation has been offered for non-examination of this material witness. As such, in our view, the Trial Court ought to have drawn adverse inference for the same. It is also to be noted that in the Urban Land Ceiling proceedings under Section 27(2) of the Act defendant 1 has not only filed an affidavit but also has given a sworn statement which are produced in this case as Exhibits P. 5 and D. 25. On a perusal of these statements on oath by defendant 1 before the competent authority one thing is clear that he has not at all mentioned about the existence of any agreement dated 11-7-1975 in favour of the said Varuny either in his affidavit or in his sworn statement. This adds doubts to the genuineness of the document, when seen together with the fact of non-examination of the said Varuny. The next document relied upon by defendant 1 to prove the agreement is the letter said to have been written by him to the said Varuny on 10-2-1978. This letter is marked as Exhibit D. 9. As admitted by the defendant this is the original document. This was admittedly not sent through the usual mode of communication, i.e., by post. On the other hand, defendant 1 says that he had personally delivered the same. What is the date of delivery is not mentioned. So also, the day or date on which the same was taken back from Varuny for the purpose of this case or otherwise is also not stated anywhere in his statement. We have perused the original letter, Exhibit D. 9, from the records and one fact which is apparent to the naked eye is the date in the letter "10-2-1978". Obviously, the type impression of the date is totally different from the rest of the typed matter. In this letter, as a Post Script there is a mention of receipt of Rs. 5,000/- and to the effect of endorsement having been made in the agreement, Exhibit D. 6. The very existence of agreement, Exhibit D. 6, is doubtful. In our view, as there is no signature of the witness on the same, though space is left for the same at the end of the document. It shows: "WITNESSES: 1. ..... 2. .....". The alleged endorsement found also does not bear signature of the said Varuny. Added to this, admittedly, though both parties, defendant 1 and the said Varuny, are residents of Bangalore, the two stamp papers are said to have been purchased from Kolar and they are of the denominations of Rs. 2.50 p and 75 p. There is no stamped date mentioned in both these stamp papers as to when these stamp papers were issued from the District Treasury, Kolar. The only date apart from the date of the alleged agreement dated 11-7-1975 which we find on these papers is the date mentioned as "10-7-1975" below the signature of the stamp vendor. In view of what we have stated above and in the absence of examination of the said Varuny, we find some suspicion about this agreement, Exhibit D. 6 and the alleged supportive and corroborative letter, Exhibit D. 9. 17. The next documents relied upon by defendant 1 to prove the prior agreement are Exhibits D. 7 and D. 8. Exhibit D. 7 is alleged to be dated 30-1-1981 whereunder the said Varuny has assigned his rights in favour of defendants 2 and 4 and the letter dated 1-2-1981 from defendant 1 to defendants 2 and 4 confirming the assignment and agreeing to sell the property in their favour. It is to be noted that the suit by the plaintiff was filed on 30-7-1980. Defendant 1 has filed his written statement on 18-12-1980 mentioning the assignment and agreement which have come into existence on 30-1-1981 and 1-2-1981 respectively, obviously and undisputably after filing of the written statement. As such, it is clear that on the date of filing of the written statement, Exhibits D. 7 and D. 8 were not in existence. But, defendant 1 has taken the plea in respect of such non-existent assignment which proves that what he has stated in his written statement is obviously false, since the assignment was not in existence. In our view, no value can be attached to such documents like Exhibits D. 7 and D. 8 which has obviously come into existence during the pendency of the proceedings and are hit by lis pendens even if they are accepted as true. It is also to be mentioned that in view of the suspicious circumstances and in view of the fact of non-mentioning of the agreement, Exhibit D. 6, dated 11-7-1975 in any of the prior proceedings and the later draft sale deeds Exhibits D. 27 and D. 28 and the fact of non-examination of the said Varuny the material witness, in our considered view this alleged prior agreement dated 11-7-1975 between defendant 1 and the said Varuny is not at all proved by defendant 1, apart from the suspicious circumstances to doubt the very genuineness of the same. 18. In view of our aforesaid findings, the necessary result would be that defendant 1 has failed to prove the prior agreement between himself and the said Varuny. If that is so, the finding of the Trial Court on Issue No. 8 is erroneous and is liable to be set aside. 19. This take us to the next two connected findings on Issue Nos. 9 and 10 regarding the alleged assignment by Varuny in favour of defendants 2 and 4, the alleged prior assigned right of defendants 2 to 4 to purchase the suit property. In view of our findings referred to above, as defendant 1 has failed to prove the very agreement dated 11-7-1975, Exhibit D. 6, in favour of Varuny and the fact that the alleged assignment in favour of defendants 2 and 4 by the said Varuny is also doubtful and also the undisputed fact of having come into existence after filing the suit and the written statement of defendant 1, the findings of the Trial Court on Issue Nos. 9 and 10 are also erroneous and liable to be set aside. 20. This takes us to the next question as to the readiness and willingness on the part of the plaintiff. Learned Counsel for the defendants have argued that the plaintiff has not shown his readiness and willingness on his part to fulfill the conditions in the agreement and as such he is not entitled for the relief of specific performance. In this regard, we have to note that, as per Exhibit P. 1, dated 23-8-1978, time to execute and complete the sale transaction was two years. It is also undisputed that in the month of June 1980 or so defendant 1 has himself given application seeking permission under Section 27(2) of the Act before the competent authority and the plaintiff has stated that it was only after he informed the defendant of his readiness and willingness for completion of the transaction. The filing of the application seeking permission for sale in favour of the plaintiff has not been denied by defendant 1, though a feeble attempt has been made in the Trial Court to state that Exhibit P. 1 itself was obtained by coercion and fraud. The Trial Court has on a detailed consideration held that defendant 1 has failed to prove the alleged coercion and fraud on the part of the plaintiff and that Exhibit P. 1 is valid and genuine. It is to be noted that this finding of the Trial Court has not been challenged by defendant 1 by way of cross objection. It is also to be noted that, though initially the agreement, Exhibit P. 1, was in favour of the plaintiff alone as per the terms of the agreement the plaintiff has requested defendant 1 to execute the sale deed in favour of his nominees, Nagesh and Kasturi Rangiah Benefit Trust. The very application filed by defendant 1 before the Urban Land Ceiling authority under Section 27(2) of the Act show that he sought permission to sell the property in favour of the nominee of the plaintiff above mentioned. The defendant has not denied about the financial position and capacity of the plaintiff. On the other hand, the allegation is that taking advantage of being a monied man, the present agreement, Exhibit P. 1, was got executed by the plaintiff by using undue influence. It is also to be noted that only at the stage of seeking permission when defendant 1 tried to withdraw the application in favour of the plaintiff and sought permission to sell in favour of defendants 2 to 4 immediately thereafter the present suit has been filed for specific performance. It is further to be noted that the plaintiff has specifically pleaded that he has sufficient funds to pay and also his willingness to purchase the property. In view of the aforesaid findings, we have to necessarily hold that the plaintiff was willing to purchase the property and, further that in view of the fact that there is no dispute as to the capacity of paying the consideration and in the absence of specific contra pleadings, the readiness of the plaintiff can also be inferred. As such, we hold that the plaintiff has proved his willingness and readiness to perform his part of obligation. 21. This takes us to the next question as to the alleged independent prior agreement dated 4-5-1978 between defendant 1 on one hand and defendants 2 and 4 on the other. In the written statement of defendant 1, at paragraph 2 it is stated thus: "Subsequent to this (agreement of sale dated 11-7-1975 with Varuny) an agreement of sale was made by this defendant with defendants 2 and 4 on 4-5-1978 after receiving a token advance of Rs. 101/-. On the same day i.e., 4-5-1978 another agreement of sale was made by this defendant with defendants 2 and 4 for his premises No. 31, Residency Road, Bangalore, and the sale deed of this was registered on 3-11-1978 in favour of defendants 2 and 4. A formal agreement for the schedule premises was made embodying various terms on 15-11-1978. In fact two agreement papers were signed on 15-11-1978 as in the first paper the agreement and token advance of the schedule premises made on 4-5-1978 was not narrated and on advice from Advocate another paper was signed wherein the agreement of 4-5-1978 and the advance of Rs. 101/-was mentioned. This defendant had agreed to sell the schedule premises to either E.P. Varuny on 11-7-1975 or to defendants 2 and 4 on 4-5-1978 with vacant possession". As such it is the pleading of defendant 1 that prior to the agreement dated 23-8-1978 with the plaintiff there were two agreements executed by him in respect of the very suit schedule property - one with Varuny dated 11-7-1975 and the other with defendants 2 and 4, dated 4-5-1978 and later on 15-11-1978. According to defendants 2 to 4, the pleadings in this regard are as follows: "On 4-5-1978 these defendants entered into various agreements with the first defendant for the purpose of purchase of properties belonging to him at Bangalore stating with No. 31, Residency Road and 86, Richmond Road, Bangalore. Defendants 2 and 4 herein had protracted negotiations with the 1 defendant herein for purchase of some of his properties including the suit schedule property and were able to come to an agreement for the purchase of premises No. 31, Residency Road, Bangalore-25 on 4-5-1978 and an agreement of sale was duly executed. Just immediately after signing the said agreement, the 1 defendant agreed to sell the schedule property and received a token advance of Rs. 101/- (Rupees One hundred and one only) from defendants 2 and 4 herein and made an agreement on 4-5-1978. A formal agreement of sale was drawn up in respect of the schedule property as per Agreement of 4-5-1978 on 15-11-1978. Later, on the same day another formal agreement of sale dated 15-11-1978 was also signed incorporating the agreement and token advance of Rs. 101/- (Rupees One hundred and one only) dated 4-5-1978. These defendants state that at the time of drawing up of the draft sale deed in respect of the schedule property in order to obtain the permission from the Competent Authority, the said formal agreement of sale incorporating the advance of Rs. 101/- (Rupees One hundred and one only) and the Agreement dated 4-5-1978 was misplaced and hence in the reiteration of the Sale Deed the agreement dated 4-5-1978 was not mentioned". Thus, the defendants want to negative the claim of the plaintiff on the basis of the prior agreement not only in favour of Varuny and his assignment, but also an independent agreement with defendants 2 to 4, dated 4-5-1978. The Trial Court considering the same by Issue Nos. 3(a) and 3(b) held against defendants 2 to 4 in this regard and the cross objection is mainly challenging the findings in this regard. As noted from the pleadings of both defendant 1 and defendants 2 to 4, it is the case that there was an agreement dated 4-5-1978 between them in respect of the suit schedule property and an advance of Rs. 101/- was paid in this respect. But, no such agreement is produced by any of the defendants. On the other hand, reliance is placed on Exhibit D. 3 alleged to be the acknowledgment of receipt of Rs. 101/- as token advance in respect of the suit schedule property. This document is on a plain paper with the signature of defendant 1 on revenue stamp. Except the interested say of the defendants no independent evidence is led in this regard. But, what is to be noticed is mentioning of "formal agreement will be entered into in due course of time". According to defendants 2 to 4, though there was a written agreement signed by the parties, another formal agreement was drawn on 15-11-1978 which is produced as Exhibit D. 4. Surprisingly, one more agreement on the same day has been entered into between the parties, vide Exhibit D. 5, and the explanation offered is that, though the formal agreement was drawn as per Exhibit D. 4, there was no mentioning of the payment of Rs. 101/- as token advance and as such it necessitated to mention the same in the next document. On a perusal of Exhibits D. 4 and D. 5 we do not see any mention of the written and signed agreement dated 4-5-1978. What is stated in Exhibit D. 4 is only defendant 1 has received Rs. 101/- in cash as advance. Though the defendants have taken a plea in the written statement that there was a separate written agreement and Exhibit D. 3 is only a receipt of having paid the token advance of Rs. 101/-, the case is given a go-by in the evidence of D.W. 2 who has stated in paragraph 3 of his evidence that "Ex. D. 3 is the agreement of sale entered into by 1st defendant with me and my brother defendant 4 on 4-5-1978". To strengthen their contention, the defendants have also examined on Ayath Khan as D.W. 3 who is alleged to be a common friend of defendant 1 and defendants 2 to 4, According to him, he had attested Exhibit D. 3 in the house of D.W. 2. It is relevant to note here itself that there is one more agreement between defendant 1 and defendants 2 to 4 in respect of another property belonging to defendant 1 and in this regard on the very day, i.e., 4-5-1978, there is a written agreement which ultimately ended with Sale deed itself. Though the defendants have produced the agreement dated 4-5-1978, Exhibit D. 10, in respect of another property for the reasons best known to him the alleged written agreement of the same day in respect of the suit schedule property is not produced. If we peruse the evidence of D.W. 3, according to him, on 4-5-1978 in his presence only one transaction took place. But, according to defendants 2 to 4, there were two transactions on the very day. This again points towards suspicious circumstances against the non-existent agreement dated 4-5-1978. Finding the difficulty regarding the alleged signed document, the defendants have come up with a case that another agreement was executed in respect of the very property on 15-11-1978 and that too twice, vide Exhibits D. 4 and D. 5. In view of the conduct of defendant 1 in creating the alleged earlier agreement in favour of one Varuny which we have already held not proved and possibly a concocted case and in the absence of substantive evidence there is more doubt created about this agreement dated 4-5-1978. For the second document dated 15-11-1978, defendant 2 as D.W. 2 has come up with a novel case that, though Exhibit D. 5 was executed in the morning by oversight there was no reference to the payment of Rs. 101/-, vide Exhibit D. 3, and as such another document was prepared, Exhibit D. 4. Thereafter the story is propounded that this document was misplaced and later endorsement of additional advance was made on 30-1-1979. In the absence of the very agreement dated 4-5-1978 what can be said to be proved by the defendants is that there was an agreement on 15-11-1978 with additional endorsement dated 30-1-1979 which admittedly is after the undisputed agreement of sale in favour of the plaintiff by defendant 1. The suspicious circumstances surrounded Exhibits D. 3, D. 4 and D, 5 force us to conclude that these are all created documents again by collusion between defendant 1 and defendants 2 to 4 only to deprive the plaintiff of his legitimate claim. It appears that taking cue from the agreement dated 4-5-1978 entered into between defendant 1 and defendants 2 to 4 in respect of the other property of defendant 1 himself, this story of agreement in respect of the suit schedule property has been put forth without sufficient material evidence. The Trial Court has also in detail considered this theory regarding the alleged agreement dated 4-5-1978 and has, in our considered view, rightly rejected the same. We see no reason to differ from the same. As such, the contentions of the cross objectors in respect of Issue Nos. 3(a) and 3(b) are liable to be rejected and they are rejected. 22. The learned Counsel for the plaintiff has relied upon a decision of the Hon'ble Supreme Court in Prakash Chandra v Angadlal and Others, wherein it is observed thus: "The ordinary rule is that specific performance should be granted. It ought to be denied only when equitable considerations point to its refusal and the circumstances show that damages would constitute an adequate relief. 23. On the other hand, learned Counsel for defendants 2 to 4/respondents 2 to 4 herein has relied upon the decisions in the case of Mt. Fatma Bibi and Others v Saadat Ali and Others , and in the case of Sampat Ram and Others v Baboo Lal, to highlight the effect of prior agreement. It may be stated herein that there is no dispute as to the proposition of law that where there is a prior agreement to sell immovable property executed in favour of the defendant prior to the agreement to sell in favour of the plaintiff in respect of the same property, the plaintiff can claim no equities against the defendant and cannot enforce his agreement and the fact that the plaintiff had no knowledge of the prior agreement would hardly make any difference. In our considered view mentioned earlier, the very existence of the agreement dated 11-7-1975, vide Exhibit D. 6, in favour of Varuny is not proved by defendant 1 and in fact is suspicious in nature. These decisions would not help the defendants. Similarly, on the reliance placed by defendant 1 on the pronouncements of the Hon'ble Supreme Court in (1) Kollipara Sriramulu (dead) by L.R. v T. Aswatha Narayana (dead) by L.R. and Others and (2) Smt. Sohbat Dei v Devi Phal and Others, and the decision of this Court in the case of Ameer v Chandrasekharappa , regarding concluded contracts, it is to be held that, as there was no concluded contract either between defendant 1 and Varuny, no assignment in favour of defendants 2 to 4 by the said Varuny and the clear findings of the Trial Court that the alleged agreement in favour of defendants 2 to 4 have come into existence only to overcome the agreement in favour of the plaintiff, in our view, these pronouncements are also of no assistance to the defendants. Learned Counsel for respondents 2 to 4 has also relied upon the judgments of the Hon'ble Supreme Court in the case of K.S. Vidyanadam and Others v Vairavan and in the case of Parakunnan Veetill Joseph's son Mathew v Nedumbara Kuruvila's son and Others , to contend that Section 20 of the Specific Relief Act reserves judicial discretion to Courts to decree the suit for specific performance and the Courts have to consider the circumstances while exercising such discretion. Placing reliance on these pronouncements learned Counsel contended that even if this Court comes to the conclusion that the plaintiff has proved his case, the Court has to exercise its discretion especially when the property is situate at Bangalore in a prominent locality and especially in view of the steep rise in the price as on today. As observed by us, no doubt, under Section 20 of the Specific Relief Act grant of specific performance is a discretionary relief. But, the ordinary rule is that specific performance should be granted and it can be denied only when equitable considerations point out its refusal. As held in the Parakunnan's case and Vidyanadam's case, surpa, relied upon by the defendants, the Court should meticulously consider all facts and circumstances of the case. The motive behind the litigation should also enter into the judicial verdict. The Court should also see whether the effect of rise in price of the property and as to any undue advantage available or obtained by the plaintiff by his own doing. As we have noted above, the whole litigation was the creation of defendant 1. Though initially he was agreeable to sell the property in favour of the plaintiff and had in fact taken steps by seeking permission from the Urban Land Ceiling Authority for the sale, he has turned back and has come up with the case of agreement with one Varuny, then the assignment by Varuny in favour of defendants 2 and 4 and the alleged agreement with defendants 2 to 4. In view of our findings that the very existence of the prior agreement dated 11-7-1975 or dated 4-5-1978 were doubtful and suspicious one and the subsequent conduct of the defendants point out to the only conclusion that it was defendant 1 who wanted to take advantage of the possibility of getting higher price than the one agreed with the plaintiff. As such, it is to be held that the agreement of the plaintiff was genuine and there is no reason for us to deny the specific performance of the same. 24. In view of the reasons mentioned above, we are of the opinion that the Trial Court was in error in rejecting the prayer of the plaintiff for decree of specific performance only on the ground of existence of prior agreement in favour of Varuny and the alleged subsequent assignment in favour of defendants 2 and 4 and the agreement in favour of defendants 2 to 4. As such the judgment and decree of the trial is to be modified and it is to be held that the plaintiff is entitled for decree of specific performance. At this stage only it is to be noted that the plaintiff is fighting the litigation without depositing the balance amount of Rs. 4,90,000/-. If the said amount had been deposited, it would have earned some interest. In the interest of justice, we feel that the plaintiff has to pay an additional amount by way of interest at the rate of 16% per annum on the said sum of Rs, 4,90,000/- from the date of the suit till the date of payment or deposit which shall form part of the main sale consideration. 25. In this result the appeal is allowed. In modification of the judgment and decree passed by the Trial Court it is held that the suit of the plaintiff for specific performance of the agreement of sale dated 23-8-1978 is decreed directing defendant 1 to execute the registered sale deed on receipt of the balance of the sale consideration of Rs. 4,90,000/- along with interest at 16% per annum (now directed) from the plaintiff by defendant 1 in respect of the suit schedule property on or before 5-5-1999 failing which the Court shall get executed the registered sale deed in favour of the plaintiff on depositing the entire amount, as directed, in the Court. 26. For the reasons mentioned above, the cross objections are dismissed. 27. The plaintiff is also entitled for costs from the defendants throughout.

B.R. Rangaswamy vs D. Syed Younous And Others on 5 March, 1999

Karnataka High Court

1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 11*" DAY OF APRIL 2008 PRESENT THE HON'BLE MRJUSTICE K.SREEDH.AF!{'R.A'OP.:" P' A N D THE I-£ON'BLE MR.JUSTICEV43.AI/VAD RA.H_IIV§' " I CRL. APPEAL NO'."--vEU9/20vb5 gi/'wj A _ CRL. APPEAL_;\I'O.234§/05 ' _i% BETWEEN: STATE BY.a - v_ vIJAYAI;IA'S.A1I?zA POLICE STATj_I-QN BANGALORE . ' _ jg , "--.1;--_.I.A."-APPEELANT IN CRL.A.609/O5 -------- '-.V_8I'RES'POf\IDENT IN CRL.A.234/05 (By St: <3__ EIHAI-;»'VA..{_\II«.SI'AII;3H,_ SPP) AND : ;'KEEVEPEG-QWDA '- 36I/EARS',""S,/I_Q..KEMPAIAH _ ' N'O.I2T,.'_I0TH CROSS, K.P.AGRAHARA B.ANGALO.RE--23, NATIVE PLACE KATTI "i<.Q'P.PAE;'-G--vRAMA, BANNUR HOBLI, T. NARAISIPURA TALLIK, MYSORE DIST RESPONDENT IN CRL.A.609/058: APPELLANT IN CRL.A.234/O5 Paffsy-«...4Sr§ PROF B BASAVARAJU & NANJUNDA SWAMY, ','ADVS) ,,..C§RL.APPEAL NO.609/O5 IS FILED U/S.377 OF CR.P.C. BY THE STATE PRAYING TO ENHANCE THE SENTENCE I-'"';/. 3" ") *3; PASSED BY THE ADDL. DIST. 8: S.J., FAST TRACK COURT-III, B*LORE CITY, BY HIS JUDGMENT AND ORDER DT.13.1.05 IN S.C.NO.435/02 -- CONVICTING THE RESPONDENT/ACCUSED FOR THE OFFENCES P/U/SS.304~-- B,498--A OF IPC AND U/SS.3,4 AND 6 OF DE' ACT,.AND SENTENCING HIM TO UNDERGO R.I. FOR 7 YEARSEOR THE OFFENCE P/U/S.304--B OF IPC. AND FU"R~T_"HE'R4 SENTENCING HIM TO UNDERGO R.I. FOR ONE _\;*EARV'.E_AtiH FOR THE OFFENCE P/U/S.3,4 AND 6 OF D.P. ACT.A.LLE-T'H.E"'1 ' SENTENCES SHALL RUN CONCURRENTi_Y.i_.~---.. _ CRLARREAL NO.234/O5 IS FILED D/:S.I3j74--_OF_'GR.-RIC, .I3yj THE ACCUSED/APPELLANT AGAINST THE JU'DGw_ENT_jAN"Di._ ORDER DT.13.1.05 IN S.C».I'i\i-Q.435;'.O2 BYA;THTE AODi_,j<. DIST. & S.J., FAST TRACi<.,_'G.DURT~III,._ DiL'DR"E~' CITY, 'I CONVICTING THE APPELLANT/'ACCUSEiDi" FOR THE OEFENCES P/U/SS,304.~»E;,498-'fix' Of IRC AND 'U--,'7SS.3,4 AND 6 OF D.P ACT AND sE_NjTENcING "H_I»M'TO UNDERGO R.I. FOR 7 YEARS FOR THE OFFENICETP/U/$13.04-.--B OF IPC. AND AND FURTHER SENTEN.C.ING H.Ir~4 TOE UN_E)'ERGO R.I. FOR ONE YEAR EACH EOR::THE"'DF.EE~N*CE 'P/D"/S.3,4 AND 6 OF DR. ACT,A_LL;9' _T_H'-E ' SE4NT.E'N'CE'S SHALL RUN CONCURRENiti,Eg'T° These apDe'aEs"COn'Iin'g iiohsiiifor final hearing this day, JAWAD RAifi;_IlVi 3., de!ive_fed the following i it JUDGMENT 'i"'iTe..,,2_ceiwicted accused is in appeal against the jUd'gme'nt'iin S.C.435/O2 On the file Df Judge, Fast Track 3 COUrt,V"B.angaEOre City, on 13.1.2005, convicting him for "Offences Under Sections 498-/A and 304-8, I.P.C. and it "winder Sections 3 and 4 Of Dowry Prohibition Act. We 2. Contextual facts on the basis of which the appellant- accused was arraigned and tried are: a) Accused married one Vasantha (since on 10.6.1996. Prior to marriage, he had for payment of cash and gold orna.ments"'i'n"*-the'Vi'or'm dowry which, the parents of Vas'anti:j'aj.:'per_lforce"'ha«d'to: agree; demand was negotiated.' further and:"u~!.t'ivm.ately was agreed to pay __him Rs_.V'2D_,_Gi)_O/--.'cash with gold ornaments. The accused..acceiipt.ed"--VRSii20,000/3 a watch and gold orna_ments,:"4%'ridf':iived,'wi'th_Tthe deceased at K.P.Ag:rah_a.raQifgvjwhrouglh»...__w_ediocl<, a child (PW4--Pravin Kumar) w._as.bor'n. " l:)_)_. The ac'cus--ed'is an auto driver by profession and with the amount given as dowry and goid oi'n'a%men.ts§;'i__hre was persistently demanding Vasantha to go over ~ to: her parents and secure additional sum of A Rsl.'5«Q,GOO/~. The demand was so frequent and persistent that PW1--Shivarudra (brother of the deceased) managed to give Rs.10,000/-- prior to the date of the incident. Even iév 4 then, the accused was not satisfied and continued to raise the same demand time and again, and as it vwahsgnot fuifiiied, he subjected Vasantha to physical_;a'nd.f;rnieritaii crueity. c) Vasantha became so dejecterdin ii_fei,.. Va-nd"Vi:rna't3Vie to bear the torture of the-'fV_a-ccusedgion hanged herseif from the the roofriaind the house. However, when ne.iAg..hDO,u'tS know of the commotion, they her; she was removed no ground her neck and taken, to" D. Devaiah) examined her and" Despite it, she succumbefd,to~__the=at-njuries regarding which PW} (S;'h§'«iJarudr_a) lod'ge_d._.a report, narrating the incidents in the ---made by the accused, cash and gold given .ars"dowry"V'a'jrrVd' subsequent demands made by him. He aiso averr.e:d}_cieariy that soon before the incident, the accused A nha'd~.becorne too assertive in making the demand and on that basis, the jurisdictionai poiice at Vijaynagar, Bangalore, registered the case for the offences under 5 Sections 498-/A and 304-B, 1.P.C. and relevant provisions of Dowry Prohibition Act. d) The accused was subjected to trial befoir'e:'f~t'he learned Judge, Fast Track Court, and prosecution examined in all 15 witnesses,ran'd~-i§elie'd on .1,.3'* documents and 3 material objects. Tl"-re-iaccusefd, 'in{"or'd:e_r '1 to negate the allegations n'iad.eg. against hlridV:,"'.gx.amVin§edh witnesses. Considering thge__i:VV"e\:/id..ence.' reriord, the learned judge found t"he'gevldefnceé"'inculp,ates the accused for the offencesvhe was"'cha'rgVe:i."wi"th'_ consequently by the irriplusg-ned' juhd;gm'ent-,-'con'vict'ed him for the offences indicat'e_d'a'_bove; is before us. 3. i..LearnedV_V"C1ounse.l for the appeilant--accused, Sri assertively contended that the case of the .p'ro_secut'iQVn is-"based only on circumstantial evidence and the ciifcurnstances which according to the prosecution, hrci_ngs"'home the guilt of the accused are: A i) Accused had demanded money in cash and gold; 6 ii) He continued to raise the demand for additional dowry; iii) He perpetrated cruelty on his wife; iv) Unable to bear the torture, she corrim-itted suicide. According to the learned counsel, _l_'_lV('):4l1.c€ :.A_l"C)ffl the circumstances were established; Manchamma, no doubt spolV<,e_about--yit','~--but theirv'testi'mo'ny'=.g is self--serving and interestedu"testimony_.,_ 'Hev-irelteslllon the defence witnesses~D\;i,i:s"'~1 toféa that that all that was aileged by these Awgitinessesilhashbeen.'-~nul!ified by the evidence of %_deij.--:.nce.§;viti€ie'sse.s,.::w~hich..:spells out that the acciised did receive any amount either in cash or bywaylof'lgoidiiogrnaments. According to him, gifts to..tihe bride irrtwhve form of cash or gold is customary and . that form dowry. There is no evidence to show gold and other vaiuables, the accused had co'l4'l'ect'ed any amount as dowry. In other words, he tries "to-.._neg"ate ail allegations that the accused had received or cash as dowry. With regard to the incident in 2 "question which occurred on 16.4.2002, he submits that 2 {N3 aw '7 there is absoiutely no evidence to prove nexus between the accused and the incident wherein the attack on the iife of Vasantha was made. He seriousiy assailed the prosecution theory that PW4~Pravin Kumar deceased and accused) had witnessed the"":'oCC_M?!&'e.f'¢E') " According to him, he was a boy ofrtrtenderul atuu that time, living with PW2 (Manc'hah7i_n*i"a).it"-"ifihelrefworle,.Thi«s. presence at the place of ocVcti__rte_nce is.faisifie_d*and~~~iias to'- V be eschewed. Consequentiy,ghis-~.._version._has to be considered as tutoreti'i_i'versi'o:n xats_tt.xinduced by PW2 (ManchammaV)..f;' 4. if\_s of PW6 (iviahadex/a.G) and other Wlt'i;i"€!VSS'€S reg'ardi.n1g payment of amount in cash as do':w«ryE__aiid other...a.rticles, he submits that their evidence ' n.O:ti establish conctusivety that what was received by .th'e'l«accu.sied.e1' was dowry. The same is reiterated with regardvetov other witnesses who have taken part in the A niarriage negotiations and have deposed about finalisation of demand of the accused. He seriously attacked the evidence of PWS (Jaikumar) to contend that his version is at also bereft of any truth. It is falsified statement to help the complainant. Lastly, he would contend manner in which death has occurred show;is"'-t.h'at: deceased had perhaps taken the extreme..s.t.ep;_u:n:ab_ieto --. bear stomach ache she was suffering:;..4yi'tjj.w'as':4u'r'ge'd..'befeté the triai court that that the d_eceas.ed" wascV»'rnentaElyj'; au'rad:', physically hurt after her fath'er._xide_serte'd family and sisters cheated her she §wa'sl._V_no't«.yin control of her mental faculties, TherAef.0,:re--,V attemp'ti.n'g~T..'to"comrnit suicide was her owni.§'d'oi}ng'_Vwithoigtgany overt act of the accused. In sh :irt,Va'll..Vtihat..he co-ginitiends is circumstantial evidence isiitun fVe'eble4,_"a.n_d in the absence of eyewitness account; they aicicuseid :_ca__n'i:ot be held responsible for the death' of \}asaVn'tha,'V'arzd therefore, he is entitled to the iearned SPP, Sri Bhavani Singh took us""thro_u'gh"""the evidence on record and the reasoning of it the__ learned trial judge to counter the contentions urged by "tVh'e"appeElant's counsei. He very rightly pointed out that "the prosecution had established convincingly that the 5".) fiwzzx 9 incident in question has occurred within 7 years of the marriage. It was also proved that Vasantha died to unnatural causes and soon before her deat.:t'l",~--~.'.q_jif..i:--_,-"_i'¥;ir:a"s. subjected to violence. He places reliance.on_u_:t.hVe:~A.la'utopsy report and the evidence of the doctoj.r".yvli'o' autopsy on the dead body,*of__thelirivctim. made to the deposition otx*.PiVV9--Drtchyandralshekariah. examined as PW9 (Dr.'C_I'Cha-ndras'he_i~:.ar*aiah). it it 6. Let u6_,fi nature of death of the ijrepertllwspeils out that the doctor'who'VAV.t'ifiea:t'e;d~'theyAvilctlirripon examination, found the following "e:_><t'e l" " V' ' ''ui;-._V%VSvplViVt~_laAce''rat-ilon on left side back of the _upper. part of the head 3cms x 0.8 cms x __LVbo__ne de"ep..,.__b.lvood extrarosated around. -V.2.~»._VCo'nt'usio'n on outer aspect and back middle fpartfjof-=ieft arm 7 x 5 cms. : There is an oblique .. a.Ligature mark present on upper part of the heck above the thyroid cartilage runs from ieft side of neck upwards and towards right side on both sides and absent on front of right side neck, measuring 22 x 3 cms and situated 2 cms below the right ear iobube and 6 cms beiow the ieft ear iobube. It is -V'; 3 £.'--;/'' ii) prominent on ieft side front and left side of neck and faint on back and right side of neck. The iigature mark is soft and reddish brown in colour." On dissection, he found injuries to the head...«w.'h_ic:if_i virtuaiiy devastating affect which resuitedM_i_n:"---<:ie'a.t'hhas at' '9 consequence of asphyxia and (Dr.C.Chandrashei<araiah) in;h_i's ev'i'a,édiice, has: aiso ci'ea"r'iyW., deposed that the injuries novticeid on Vthe"'pers.'Ci:fi "of the victim were ante mortem and_tn'i.us,t"~-have been caused shortiy before her death,_'f'Tflherefbre,~..:suf_fer--ance of injuries is by ext'ern_ai;-vio'i:::n-ce;-_'in thi"s~rie§jard, iearned counsel for the ap"p_ei'ia_nt neighbours tried to save her by rern'oyi'ng'h.er'frorn'hanging position, she couid have fai.ij_je'3'n and._suffe%ed.....i_njuries. To gain support, he reiied on EXT.P12,,:_"D,r';i»i§eyaiah who had examined the victim soon after ad.rnV'i'sjsi..:5n. He referred to that specific portions of his cross~~ex;amination which we have re-appraised. Dr.Devaiah has stated thathe had not recorded the if " -"external injuries found on the person of Vasantha in his 5} V" I 1 medical records. Nowhere he has made a statement that he noticed any external injuries on the person of the victim. It is materia! to note that no suggestion been put to PW12 (Dr.D.Devaiah) that the injuries the person of the victim coutd have been attempt was made to save her iife: »-Ther~'efo_Vre:;'iit_ for the i first time, this point is being cant/as.se'd. ffiiioiwevver;f.:i't..:hfas received our concern and«.,'w_e have ire--'ex'a,rni'ried the evidence so as to see. whether .s'uch'~-.ground'i-3 sustainabie. On re-appraisal, we ' on%_!'yud worth rejection. Therefore, the.:"a.ccused""ha;d_4'to:face'oti«rit for the injuries suffered t'heV vVic't.iym4ras-recorded in Ex.P7. 8. The.rproset:uti,on<.--has examined PW4--Navin Kumar (s,_on:. offlthre victi'rn).,..«a boy of tender age, aged 6 years at ' incident. He has narrated what transpired soon befoirje.'i:'his mother took the extreme step. The accus.e:d}_isV said to have heid the tuft of hair and pushed if hergacausing severe injuries' The injuries noticed by PW9 (£)r.C,Chandrashei<araiah) during autopsy and recorded in 'Ex.P7 correspond fully to the version of PW4 (Naveen). It W 11/, 12 is also noticed that no suggestion is put to PW2 (Mancharnrna) that at the time of the incid.en't.,;'f~.PW4 (Naveen) was actually not residing with casual statement of PW2 (i\{{ancharn'itia--.)i:'_~vthat"_ (Naveen) is with her is worth noting,..onl'y._1t'o:'a"pa'i=tict.!i_ar extent, therefore such statement of~_P'W2 (Manfcvhamrna) not sufficient to conclude hel""w:as.,_Vnot.'p«r.es.entAV5when the incident occurred. 9. Be thatrtit evidence of PW4 (Naveen);'in around urged, we find that the e"vid'ence""""""tendered by PW9 clincher. The victim was subjected*-to 'violence: 'before her death. Section 304-B, prosecution to establish that irn'noed.i,a'teVi;rrbefore the death of the victim, she was si,i.bjlectVed."'i'F7térueltyi mentally and Dhysically in relation to derna,.nid, for dowry. Therefore, sufferance of injuries before "her death are referable to the conduct of the accused and such events have a bearing on his 32:3,, l3 involvement. Therefore, the presumption under Section 304-8 is legitimately be drawn in a case of this 10. It has to be observed that all offencesliof are committed in the secrecy ofthAe"m.a,terna«l _h'ou_se"w'he'ite we do not normally accept "the'--.V_preseci_l_lce'i off-i.4o'th'e'r.. witnesses. The crimes cornmitted in 's:.1,'ChV'Rpla'ces are therefore, sought y't.Q. bye" é"V'ti'ir'ough the circumstantial evidence permissible incorporated, is brought into piay. ' l l 11. which is required to be proved by the"ipcrolsecu.tid'=;1" death was due to injuries cause'd,c_ Th.is"has"'bee'1 sufficiently proved through medical jViSi_nce these two ingredients are established and n'oi"'dispute as to the matrimonial relationship bet'i.A;ee__n'thié accused and deceased, we are satisfied that the prosecution has convincingly established that Vasantha "i~rj'iedi"lof unnatural death and not of natural cause, and that -~-soon before her death, she was subjected to physical (}\'2/' I4 cruelty in relation to payment of dowry, and as she died within 7 years of marriage, her death has to be construed as 'dowry death.' The accused becomes iia.b__le for punishment accordingly. 12. The Eearned trial judge has been matter of awarding sentence. Only' jin'*..pr:i4s.onrnen__tof 3 years has been imposed; The._State,_="howe.ver;, .'lia_s*. challenged the sentence pa's~s_ed_forV"'th'ei'Voffence under Section 3 of Dowry aresatisfied that the learned judge hasiynoft ~con_sifjer'e-dbsentencing poiicy and minirri'u'nm,,q.,5*+?ntAé:fice ""i?i'e'scri"be'd"': for the offence under Section the ingredients of the offence postulated-«.,iunder._ 3 of the Dowry Prohibition Act a.:'fe3'«:.established', co..n.s'equent sentence has to be imposed in ' ter,msV'provided therein. The accused, therefore, has to .'be"'isente7n'cerd to a minimum period of 5 years for the offenceunder Section 3 of the Dowry Prohibition Act. In the result, we find that the prosecution has -Vestabiished the charge for the offences under Section as E5 498--A and 304-8, I.P.C. and under Section 3 of the Dowry Prohibition Act. The learned judge was right in finding him guiity of the said offences which we feei, ne:e'd,s no interference. We, therefore, confirm the same«....As,'_regai'd,s punishment is concerned, we accept thvr--_3_»a.ppe_ai i"ofi't~he"~__ State. The sentence of 7 yearsimpri's«onment._.:iingposegd if the accused for the offence underiisectiognl3,0'4iB,*.fIP.C.», however, is confirmed, H'é'i'i».:h'as'not" senteinced to undergo any punisiirnent Section 498--A, I.P.C.V found guiity. Therefore, this also, we are satisvfyied jiswliabie to be sentenced to minimiurnfi offence. 14;' " As rwegards conviction of the accused for the offence _pTnder"'iSections 3, 4 and 6 of the Dowry Prohibition Act, the aiccii5eci'i..,,ha.:sV'-been sentenced to RI. for a period of one year, minimum period prescribed is five years. We .. th.erefore, sentence him accordingiy and hoid that he shaii 7f'pa---,é a fine of Rs.15,000/- out of which _Rs.500/-- shail be Vipaicl as fine and the baiance of Rs.1-4,500/-- shaii be paid to 5""? lo PW4 through his guardian. The accused is entitled to set off under Section 428, Cr.P.C. 15. The appeal filed by the accused, therefoprleprfails. The appeal of the State is allowed in informed that the accused has been adm-i~tted:~to"'p:ai--EA the filing of this appeal. We direct heshlal-lélsogrender ~ before the trial court forthwit_h to"undergo'"the.4_rem:ain%ino':> period of the sentence. Th'e.¥tri.al co"ur_tl_'i's directed to ensure his presencesecured'a.n'd'"he is committed to prison for undergoing...th.e'=trial .of"s'ent'e1.nce imposed upon him. The sente"nce;Sj;pimpissed"shall rurrconcurrently. vgi*._* . Sdfigfii Judge Sdfiig Iudqe

Author: K.Sreedhar Rao Rahim

State By Vijayanagara Police ... vs Kempegowda on 11 April, 2008

Karnataka High Court

IN THE HIGH COURT or-' KARNATAKA.:'_ '"""' % CIRCUIT BENCH AT D?j§ARWA_S"'*' jg, (jf H QATED THIS THE 297" ¥)AY7_QF:JL}fiE;225¢9- 4' é T serene A V V THE I-§0N"'8{.E MR. JUSTICE H'EI_§{CIFII(§ERI muse RENT Rgvisicw siertng @.N'.w'QH 51112909 c Evil) 1. sHR: SURESH' sHA§%§$a§%uK:§§.a;§>:4A 5 KALYANSHET'!'Y}-- AGE: 33Hv*Em2. 1 GC'éZ:* 8usjmes$~" R/O RAVIVAR. Fem! _ V H . GOKAK-S91 307,. UIST:'*£3uEL§S;§tUM. 2. SHRI PARAPPA SHANM'gIKHAPPA KALYAgiii§HETTY"-» % - ._VAG£S':""3Q YEARS, OC€::..«£siJSINESS, R,zo'p.AvA:wAr~:HPETH, GQKAK 591. 30?, msfr: 'BvE{;{§AL!fM.,--v" psnrmnens L '" (BY sR;:'HHHM.G;HNACANuRz, ADV.) " 'A _ ._ 3;._sH'a.£ ESHRISHAIL MALLIKARJUN '--««-'BEMBALGI, 9-3A.JOR, "-_<:)c:c:: AGRICULTURE, ' R/0 GOKA¥<~ 591307, mm": BELGAUM. 2. SMT. SUS?-EMA W/O SIDDAPPA BUKITGAR MAJOR, OCC: BUSINESS, R/O RAVIWAR PETH, GDi(AK--~ 591 397, DIST: BELGAUM. ...:.REE'>PQNDE.NTSv...,,__ (By SR1 RM/IRA] C. PATIL, ADV.)_* _ THIS PETITION IS FILED UNDER sEc:II€2A££:IA.,1'I*3AL'or=: <:I>cV AGAINST THE JUDGMENT AND DECAREEV DATE[_) 18/4/2069 IN HRC:RP:-44/2008 PASSSDSY 'E"r€'E--A',_:PRt._ DISTIHCT JUDGE, BELGAUM, DISMISSING T!-_{E_ R:.EVISI_'ON'~._PET'ITION FILED AGAINST Ti-4E IUDSMEAIT AAID' DEvCREE._'D.i-fxTEE_) 15/9/2008 IN HRC NO. 8/1995 PA.SsED,.I3':vT++E5A--.ADDITIDAaAL CIVIL JUDGE (3R.DN.) €§C>K»§I_K;'f'.A|,$S;Z$Mz'If§l't'§..V THEMPETITION FILED UNDER semen 2I(1){a)v(h)'DII:KRCAv..A , I953 (sec. 27(2)(a) AND (r) 05 KR ACT 199_9}_E1'c. '- L' THIS PETIIIDN COb1VI"!\i{'§'ON FOR ADMISSION THIS DAY, THE coum MADE T%f|E' FOLLOWING: ,, ~r I DA .DRD§R T§I'i'S p%.§titién,_.is was praying the feliowing rekefs: :{§.)_ ' order dated 18.04.2009 passed by the ' Pri.h'c§.,eél District Judge, Belgaum in " ..F%RCV:RP:44/2008; flfii. (ii) (iii) 2. 3 set aside the order and decree dated 16.09.2063 passed by the Additional Civil Judge, Jr. 8n.,;'Gokak in net: 8/1996; aiiow this revision pefition with costs dismissing the eviction petition filed...§9{...ree.po4ndent.. No.1 in I-{RC 8/1996. The parties have arrived__ at e"negotiatedteettiefneynt. The terms agreed open between thetoierties ere e:s'§oi|o;ws:-- (8) The petitioners Nio".1_ respondent No.2:V.vvsneii'tiie-..§%a.cent possession of the petition eeneduie"Vpfen1iees}on or before 29.06.2911 to the ' " s-espont§e_nt'1No.'1 without driving the respondent No.1 fitie._the ekéetion petition; oetvitioners No.1 and 2 end the respondent No.2 ..f;heiAi§7'not induct any third parties into the petition "schedule premisw; The petitioners No.1 and 2 and the respondent No.2 5113!} deer the arrears of rents, if any, within two weeks from today; £5314; (<1) The petitioners No.1 and 2 and the shail keep paying the rents, as aod...i§h.en?.*_thveyi due, so long as they continue i_2e;in*'on§upati'o'n_.of the schedule premises; (e) The petitioners No.1 and No.2' shail file an tovvdabide by the terms en_i:merated't' Th.e"sa_~i.d'.'.affidavit shat! be fiied gt-_petit.ion'ei'sd'5f'i*io_,i' and 2 and the weeks from today. (f) th_eywi.j'Vfa_iVi'd3:'§.to _'::ad'here'._WtoVV any of the conditions stipui*ated it is open to the respondent 5 .No.1t't'o._i'esoi't to execution proceedings. yoetition is disposed of in terms of the VisnderstaindiVngdV".a~nd§;;'the settiernent, the material terms of which are recofded'*.he5reinabove. Sd/"' Iudqe i»'* sac*

Author: Ashok B.Hinchigeri

Shri Suresh Shanmukhappa vs Shri Shrishail Mallikarjun ... on 29 June, 2009

Karnataka High Court

Court No. - 24 Case :- MISC. SINGLE No. - 2422 of 2010 Petitioner :- Amit K.Singh Respondent :- Commissioner & Ors. Petitioner Counsel :- Ajay K.Pandey,Rajiv Narain Pandey Respondent Counsel :- C.S.C. Hon'ble Rajiv Sharma,J. Rejoinder affidavit filed by the petitioner is admitted to record. Learned Standing Counsel prays for and is hereby granted two weeks to file supplementary counter affidavit bringing on record the copy of the enquiry report and the petitioner will have one week thereafter to file supplementary rejoinder affidavit. List immediately after expiry of the aforesaid period. Order Date :- 7.7.2010 lakshman

Amit K.Singh vs Commissioner & Ors. on 7 July, 2010

Allahabad High Court

(v) Sat Narain Singh v. Badri Prasad Singh. 19. In order to appreciate the said contentions it is necessary to refer to Section 52 of the T.P. Act. Section 52 of the Act reads as under: JUDGMENT H. Rangavittachar, J. 1. This is a plaintiffs second appeal. 2. Briefly stated the facts giving rise to the filing of this second appeal as gathered, from records are as under: 3. Plaintiff filed a suit O.S. No. 6 of 1975 on the file of the Civil Judge, Bijapur for a declaration that alienation made by defendant 6 to the suit in favour of defendants 1, 4 and 5 is not binding, and declare him as the owner of suit properties and for consequential relief of possession; Suit properties are 2 items of agricultural lands bearing Sy. No. 94/2 of Yelwar Village, Basavanabagewadi Taluk measuring 15 acres 24 guntas, 21 acres and 34 guntas of land in Sy. No. 3 of Mannur Taluk. ' 4. The suit properties originally belonged to one Hanumantharaya. He had 3 sons, Ramachandrappa, Saheb Gowda, Shivasangappa. Plaintiffs are the children of Shivasangappa. After the death of Saheb Gowda, his widow adopted Basavanagowda Saheb Gowda, defendant 6 in the present suit (since deceased by his legal representatives). 5. The said Basavanagowda Saheb Gowda (defendant 6 in the present suit) had originally filed the suit O.S. No. 67 of 1948 against the present plaintiffs and others on the file of the Civil Judge, Bijapur, for a declaration that he is the adopted son of Saheb Gowda and for partition and separate possession of his 1/3rd share in the property of Hanumantharaya and obtained an ex parte preliminary decree of partition on 12-12-1949. Subsequently, he filed a suit special DAE No. 40 of 1953 for drawing final decree which was allowed and the matter was sent to the Special Deputy Commissioner for effecting partition under Section 54 of the Code of Civil Procedure. 6. This ex parte decree came to be challenged by the present plaintiffs 3, 4 and 5 by filing a suit O.S. No. 12 of 1956 against defendant 6 and others before the Civil Judge, Bijapur for declaring that the ex parte, decree in O.S. No. 67 of 1948 is a nullity. 7. During the pendency of the suit O.S. No. 12 of 1956, defendant 6 under registered sale deed dated 31-10-1956 sold properties bearing block No. 4 i.e., lands in Mannur Taluk in Sy. No. 3 to defendant 1 who in turn sold it to defendant 2. Similarly, he sold properties bearing Sy. No. 94/2 in favour of defendant 4 under a registered sale deed dated 12-9-1962, who in turn sold it to defendant 5 on 17-1-1968. 8. The suit O.S. No. 12 of 1956 came to be dismissed. The dismissal of the suit was challenged by the present plaintiffs 2, 3 and 5 by filing a regular first appeal in R.A. No. 23 of 1965. This appeal ended in a compromise under which, the plaintiffs recognised the adoption of 6th defendant-Saheb Gowda and his right to 1/3rd share in the joint family. However, the suit properties that was allotted to the share of defendant 6 in the suit O.S. No. 67 of 1948 was reallotted to the share of the plaintiffs, as a mode of effecting partition and a compromise decree was accordingly drawn on 11-7-1966. This compromise decree was filed in the suit O.S. No. 67 of 1948 and a final decree was accordingly redrawn in terms of the compromise decree by the Civil Judge on 19-4-1974. 9. Plaintiff contended on the basis of the above facts that they have acquired title to the suit properties as per the compromise. The alienations made by defendant 6 in favour of defendants 1, 4 and 5, having taken place during the pendency of the suit O.S. No. 12 of 1956, was hit by the doctrine of lis pendens, under Section 52 of the Transfer of Property Act. Since defendant 6 by then had expired, his L.Rs were brought on record. They supported the case of the plaintiffs. 10. The purchasers of the suit properties, defendants 1, 4 and 5 contested the suit. They defended the alienations made in their favour by defendant 6, by contending that the compromise decree obtained in R.A. No. 23 of 1965 was a collusive one between the plaintiffs and defendant 6 and hence the doctrine of lis pendens has no application. It was also contended that the preliminary decree in O.S. No. 67 of 1948 having culminated in drawing of the final decree and effecting a partition under Section 54 of the CPC, the Civil Court had become functus officio and it could not have amended the preliminary decree in O.S. No. 67 of 1948. 11. The learned Civil Judge who tried the suit accepted the case of the plaintiffs and decreed the suit. He has held that the compromise decree in O.S. No. 67 of 1948 establishes the fact that plaintiffs have acquired title to the suit properties. Since the alienations were made by defendant 6 during the pendency of the suit O.S. No. 12 of 1956, the same is hit by the doctrine of lis pendens, therefore the alienations are not valid in law. 12. The said judgment and decree was challenged by defendants 1 and 2 by filing R.A. No. 16 of 1979 and defendants 4 and 5 by filing another appeal R.A. No. 17 of 1979. 13. These two appeals were heard by the learned Additional District Judge, Bijapur and by his judgment and decree dated 20-1-1984 has reversed the judgment and decree of the Trial Judge and consequently dismissed the suit. He has held that whenever an alienation is made during the pendency of suit, the burden is on the person who takes benefit of the section to show that the compromise was not collusive. On facts, learned Appellate Judge has held that the compromise decree entered into between the parties in R.A. No. 23 of 1956 was a collusive one. He has relied on the following circumstances to reach the said conclusion. According to him, the circumstances being: (I) In the compromise decree, one of the clauses mentions "During the pendency of the suit O.S. No. 12 of 1956, the plaintiffs have alienated other properties, and defendant 6 has alienated some properties. These alienations are not binding on the non-alienating parties", which clause demonstrates that the plaintiffs even being aware of the alienations made by defendant 6 still insisted that these alienated properties should be allotted to their share. (II) The compromise decree, does not indicate the shares allotted to each of the branches when essentially the suit of the 6th defendant in O.S. No. 67 of 1948 was a suit for partition. (III) Even though the compromise decree was passed by the District Court in R.A. No. 23 of 1956 on 15-8-1956, the said decree was not presented for necessary action before the Civil Judge in O.S. No. 67 of 1948 for a period of 4 years which certainly raises a doubt in the mind of the Court about the genuiness of the compromise. (IV) That in pursuance to the alienations made, necessary mutations were effected in favour of defendants 1, 2, 4 and 5 and they were exercising all acts of ownership for a considerable period of time i.e., from 1956 in one case and 1962 in another case and the compromise petition was filed by the parties after an inordinate delay oven though the parties were fully aware of such situations. 14. Learned District Judge also rejected another argument advanced on behalf of the plaintiffs that in order to attract the provisions of Section 52 of the Transfer of Property Act, the collusion referred to in the section should be at the inception of filing of the suit and not later by holding that if collusion is established in obtaining a decree that is also enough compliance of Section 52 of the T.P. Act. 15. This judgment and decree of the Appellate Judge is challenged by the plaintiffs in this appeal. 16. At the time of filing the appeal, this Court admitted the appeal to consider the following substantial questions of law: (1) Is the lower Appellate Court having held that the sale of suit properties in favour of defendants 1 to 5 being subsequent to the filing of O.S. No. 12 of 1956 and having held that the suit properties were the subject-matter of litigation in O.S. No. 12 of 1956 rights in holding that the sale of the suit properties not hit by the provisions of Section 52 of the T.P. Act? (2) Is the lower Appellate Court right in holding that the suit is barred by limitation in view of Article 65 of the Limitation Act through the suit O.S. No. 12 of 1956 and O.S. No. 67 of 1948 were pending till 19-4-1974? Though the appeal was admitted to consider the above two questions, but the arguments were addressed only on the substantial question of law at No. 1 i.e., regarding the application of the doctrine of lis pendens to this case. Hence only substantial question of law at No. 1 is considered. 17. The submission of Sri C.B. Srinivasan, learned Counsel for the appellant being that in order to escape the rigour of Section 52 of the Transfer of Property Act, it must be shown that the suit filed by the parties was at its inception collusive. If a suit filed at the inception is not collusive, even if the compromise decree passed is collusive in character, then the provisions of Section 52 of the Act is applicable in all its force. He relied on the decision of the Supreme Court in Nagubai Ammal and Ors. v. B. Shama Rao and Ors. . 18. Per contra, Sri Jayavittal Rao Kolar and B.S. Patil, learned Counsels appearing for the respondents defended the order of the District Judge and submitted that it is not necessary for the doctrine of lis pendens to apply that the collusion referred to in Section 52 of the Transfer of Property Act must be only at the inception of filing the suit. Even where a decree is obtained by the parties by colluding with each other to defeat the rights of bona fide purchasers by a compromise or otherwise such decrees also are also hit by the doctrine and they relied on the following decisions: (i) Ram Narain v. Nawab Sajjad Ali Khan; (ii) Lekshmi Gnanapakiam v. Thynes Nadar Ponnian Nadar; (iii) Moran Mar Masselious Gheevarghese II Catholicos of the East v. Most. Rev. Paulose Mar Athanasius; (iv) Mallamma v. B.S. Venkataram; "Section 52. Transfer of property pending suit relating thereto.--During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under the decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose". 20. This section is an expression of the principle "pendents lite nihil innovetur" meaning "Nothing is to be changed during the pendency of the suit". It embodies an 'equitable principle' and should be so construed as to effectuate its purpose. As held by the Supreme Court, in Jayaram Mudaliar v. Ayyaswami, "The purpose of Section 52 of the Transfer of Property Act is not to defeat any just and equitable claim but only to subject them to the authority of the Court which is dealing with the property to which claims are put forward". 21. Section 52 of the Act will not wipe out the effect of a sale validly executed by the person who has the authority to sell pendente lite but it is only to subordinate the rights based on the decree in the suit. As between the seller and the purchaser, the transaction is perfectly valid and operates to vest a title in the purchaser (See the decision of the Supreme Court in Nagubai Ammal's case, supra). 22. In order for application of Section 52, it is clear that a suit must be pending and it should be non-collusive in character and involves any right to immovable property and there must be a transfer by a party to the suit who has some right under the decree in the suit (See the decision of the Calcutta High Court in Hiranya Bhusan Mukherjee and Ors. v. Gouri Dutt Maharaj and Ors.). 23. Thus one of the important ingredients for application of the principle of lis pendens is that the suit should be non-collusive in character. But then the further question is whether the element of collusiveness must be present necessarily at the inception of the suit or subsequently arise, it begins to operate resulting in a decree obtained either by compromise or otherwise, though the institution of the suit at the inception was honestly done. On this question, various High Courts have taken the view that even when the suit is honestly instituted but during trial or later if parties, enter into a compromise collusively and obtain a decree which affects the transaction of transfer of immovable property, then the doctrine of lis pendens has no application evidently on the principle of equity. Sufficient for my purposes to refer to few of the decisions sited at the Bar. The Travancore and Cochin High Courts in the case of Lekshmi Gnanapakiam, supra, has held: "The rule of lis pendens will apply to compromise decrees but will not apply only if the compromise was not result of fraud or collusion. A suit may be collusive in its very inception or a decree may be obtained by collusion in a suit which was honestly begun. When the parties to a suit enter into an agreement for the express purpose of defeating the rights of a transferee pendents lite and a decree is passed in terms of the agreement, the doctrine of lis pendens will not apply to the case". 24. The Bombay High Court in Nathu Dhoju Gholap v. Ramchand Balchand and Anr., has also taken the view that the rule of lis pendens applies to the compromise decrees also provided, the compromise is honest and not fraudulent or collusive. It has also, been held that since appeal is a continuation of a suit, Section 52 applies even to decrees obtained in appeal, provided as stated they are not collusive. Similar is the view of the Patna High Court in the case of Juthan Tewari and Ors. v. Parasnath Singh and Anr., of the Oudh High Court, Sat Narain Singh's case, supra. 25. I am in respectful agreement with the views expressed by the Bombay and Calcutta High Courts as the doctrine of lis pendens being essentially a doctrine of equity, and fraud and collusion, being antithesis of equity, cannot be encouraged by Courts nor any decrees obtained by fraud or collusion can defeat the rights of the alienees of immovable property. 26. Sri C.B. Srinivasan has mainly relied on the decision of the Supreme Court in Nagubai Ammal's case, supra, in support of the contention. 27. I have gone through that decision in detail. That was a case where the Court was dealing the question whether there was any collusion between the parties at the inception of suit. This question viz., that if the suit at the inception is honest but if a decree is obtained by collusion later whether the doctrine of lis pendens applies or not had not come up for consideration. Certainly the doctrine has no applications, in all cases where the very suit is instituted by collusion between the parties so also it does not apply to compromise decrees obtained by collusion or by fraud. 28. On collusion, Appellate Judge has in detail considered the evidence and has found as a matter of fact, collusion between the plaintiff and defendants to the appeal, R.A. Nos. 16 and 17 of 1979 in entering into the compromise and obtaining a decree thereunder. No arguments are advanced by the learned Counsel for the appellant as to how these findings are riot based on evidence or against the evidence. Under the circumstances, the reasoning of the Appellate Court on this finding cannot be faulted. 29. For the reasons stated above, the substantial question of law No. 1 is answered holding that the Appellate Court was right in holding that the alienations made by defendant 6 in favour of defendants 1, 4 and 5 are not hit by the doctrine of lis pendens. 30. For the reasons stated above the appeal is dismissed with costs throughout.

Author: H Rangavittachar

Ramanagouda Siddanagouda ... vs Basavantraya Madivalappa ... on 9 November, 2001

Karnataka High Court

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Ram Dularey Pandey & 4 Others vs State Of U.P. & Another on 25 August, 2010

Allahabad High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.970 of 2009 ====================================================== Rajesh Kumar Mishra, Son of Vidyanath Mishra, resident of Village - Paras Pakri, Police Station - Majhaulia, District - West Champaran. .... .... Petitioner. Versus 1. The State of Bihar. 2. The Collector, West Champaran at Bettiah. 3. The Sub-divisional Officer, Bettiah Sadar, District -West Champaran. 4. The Block Development Officer, Nautan Block, District -West Champaran 5. The Block Education Extension Officer, Nautan Block, District -West Champaran 6. The Panchayat Secretary, Jamunia Panchayat, District -West Champaran 7. The Panchayat Shikshak Niyojan Samitee through its Chairman, Mukhiya Jamunia Gram Panchayat Anchal Nautan, District - West Champaran. 8. Amitl Kumar Dubey, Son of Balram Dubey, resident of Village - Jhakra, P.S. Nautan, District -West Champaran 9. Srikant Prasad, S/o Surendra Prasad, resident of village - P.O. Majharia Kishun, P.S. Nautan, District -West Champaran .... .... Respondents. ====================================================== Appearance : For the Petitioner/s : Mr. Siya Ram Shahi, Advocate For the Respondents 8 & 9 : Mr. Grijesh Kumar, Advocate For Respondent No. 7 : Mr. Vikas Kumar, Advocate ====================================================== CORAM: HONOURABLE JUSTICE SMT. MRIDULA MISHRA ORAL ORDER (Per: HONOURABLE JUSTICE SMT. MRIDULA MISHRA) 05/ 12-09-2011 Heard counsel for the petitioner, the State and the counsels representing private respondents 7, 8 and 9. Respondent No. 7 is the Selection Committee under the Chairmanship of Mukhiya, Gram Panchayat, Jamuniya. Respondent Nos. 8 and 9 are two selected candidates appointed against the vacancies which accrued on account of resignation of 2 Patna High Court CWJC No.970 of 2009 (5) dt.12-09-2011 2/6 two selected teachers in general category. Facts of the case as revealed in the pleading of the parties is that in Jamuniya Gram Panchayat under Nautan Anchal process for appointment on the post of Panchayat Teacher was initiated and almost complete. However, two selected candidates in the general category resigned and the Selection Committee in its meeting decided to fill up those posts from the candidates in the panel. Name of petitioner Rajesh Kumar Mishra and Amit Kumar Dubey, Respondent No. 8 is there in the panel of general category candidate at serial no. 12 and 15. So far respondent no. 9 Srikant Prasad is concerned, he has shown in the panel of reserved category candidate having higher percentage of marks than the petitioner. Initially for one vacancy six persons were informed fixing the date of counselling on 13.7.2008 through notice under UPC but no one appeared. In the meantime, one more vacancy occurred on account of resignation of another selected candidate, as such some persons from general category panel and Srikant Prasad from reserved category having higher marks total eight candidates were informed for participating in counselling through under postal certificate (UPC). Notice was issued on 20.11.2007 and the date of the counselling on 25.11.2007. From the proceedings of the Selection Committee annexed with the writ 3 Patna High Court CWJC No.970 of 2009 (5) dt.12-09-2011 3/6 application, it is obvious that only two candidates Amit Kumar Dubey and Srikant Prasad appeared for counselling and they were selected, appointment letters issued in their favour. Petitioner, whose percentage of marks is higher than Amit Kumar Dubey (Respondent No. 8), when came to know about his selection filed his objection before the Block Development Officer on 17.4.2008. Since, there was no response he filed objection in the Janta Darbar of the District Magistrate. The objection was referred to the Block Development Officer. Petitioner's case is that considering the objection of the petitioner with regard to dispatch of noting under UPC it was the finding that selection was not done properly. However, no steps were taken as such petitioner filed this writ application, which was still pending before this Court, when he also filed an appeal before the District Teachers Employment Appellate Tribunal vide Appeal No. 90 of 2009. The Appellate Tribunal gave opportunity of hearing to all the parties and also examined and enquired from Sub-post office, Jagdishpur on the point whether UPC were dispatched correctly with stamp of Jagdishpur Sub-post office for intimating about the date of counselling to the candidates. The finding recorded in the Appellate Tribunal's order is that it was duly dispatched with the stamp of Jagdishpur Sub-post office. This 4 Patna High Court CWJC No.970 of 2009 (5) dt.12-09-2011 4/6 finding has been recorded by the Appellate Tribunal that Srikant Prasad was delivered notice sent through UPC. With regard to finding recorded by the Block Development Officer the opinion of Tribunal is that without examining any connected record or any person of the Sub-post office, merely this presumption has been recorded by the B.D.O., which is not proper. Counsel for the petitioner submits that this has been the practice in all of Bihar and India in the matters of appointment or for sending any kind of notice to any one to send the intimation through the registered post which is more reliable and on which dependence can be placed by each of the parties. So far sending intimation or notice through UPC is concerned, there are sufficient opportunities for misusing this process and it is a fraudulent mode for dispatching notices. In support of his contention the counsel has placed reliance on a decision reported in 2010(4) P.L.J.R. 1835. On perusal of this judgment I find that it is mere an observation then a finding against selecting UPC as a mode for dispatching intimating or notice. On the other hand, the counsel representing Respondents 8 and 9 has submitted that UPC was selected as one of the mode in view of the direction of the District Magistrate, who has specifically directed for sending notice to the candidates 5 Patna High Court CWJC No.970 of 2009 (5) dt.12-09-2011 5/6 for participating in the counselling either through registered post or UPC. In view of the submissions made by the parties and also this fact that initially six persons were sent notice through UPC, none of them participated in the counselling fixed on 13.7.2007. No one of them has either raised any objection that without intimating them the vacancies was filled, ignoring their higher percentage of marks. Subsequently, eight persons were sent notice, out of them except petitioner no other candidate has raised such objection. Since, there is no sufficient evidence to show that under the genuine stamp of Jagdishpur Sub-post office on a particular date UPC were dispatched. If, for any reason petitioner has not been able to receive this notice, it cannot be said that intentionally there was no intimation for participating in the counselling, ignoring his higher percentage of marks. The counselling date was fixed. If no other candidate than the two candidates who were selected, appointed, participated in the counselling, their appointments cannot be cancelled on this count that some of the candidates could not receive intimation prior to the date of the counselling. I also find that petitioner has been late in raising objection as the appointment process was completed on 26.11.2007, for the first time as per his own admission he raised 6 Patna High Court CWJC No.970 of 2009 (5) dt.12-09-2011 6/6 objection on 17.4.2008 by filing an application before Block Development Officer. The appointment process, which had initiated in 2007 and completed in the end of 2007, cannot be re- opened in the mid of 2011 for a reason, which has not been proved satisfactorily. I do not find any merit in this application, it is dismissed. (Mridula Mishra, J) DKS/

Rajesh Kumar Mishra vs The State Of Bihar & Ors on 12 September, 2011

Patna High Court - Orders

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Author: A.S.Bopanna

Basheer Ahmed vs S B Anne Gowda on 23 January, 2009

Karnataka High Court

Central Information Commission 2nd Floor, August Kranti Bhawan, Bhikaji Cama Place, New Delhi - 110 066 Website: www.cic.gov.in Decision No.5199/IC(A)/2010 F. Nos.CIC/MA/A/2009/001019 CIC/MA/A/2010/000103 Dated, the 3rd March, 2010 Name of the Appellant: Smt. T. Chanda Biswas Name of the Public Authority: THDC India Ltd. i Facts: 1. The appellant was heard on 26/2/2010. 2. The appellant has asked for information, through two separate applications, which relate to access to ACR and proceedings of DPC. Being dissatisfied with the CPIO's response, she has submitted two separate appeals, which are examined together. 3. In the course of hearing, the details of information asked for and the CPIO's responses were discussed. The appellant pleaded for providing copies of ACRs and DPC minutes. 4. The appellant also stated that she was harassed at work place by the senior officials, who have deliberately awarded lower ACR grades, to deprive her of promotional opportunities. Decision: 5. The CPIO has already furnished ACR grades while the remarks made by the Reporting and Reviewing Officers have, however, been withheld, which is justified, u/s 8(1)(g) of the Act. 6. As regards disclosure of DPC minutes, this Commission has directed the public authorities, in a number of cases, for disclosure of the entire details containing information about recruitment and promotion of staff. There is, therefore, no justification for withholding such documents as DPC minutes. The i "If you don't ask, you don't get." - Mahatma Gandhi 1 CPIO is therefore directed to provide the DPC minutes relating to the promotion from Grade E-6 to E-7 for the year 2006 and Grade E-7 to E-7A for the periods 2007 and 2009, within 15 working days from the date of issue of this Decision, failing which penalty proceedings u/s 20(1) of the Act would be initiated. 7. With these observations, the appeals are disposed of. Sd/- (Prof. M.M. Ansari) Central Information Commissioner ii Authenticated true copy: (M.C. Sharma) Deputy Registrar Name & address of Parties: 1. Smt. T. Chanda Biswas, 608 Bhagirathy Apartments, Plot No.B-9/14, Sector-62, NOIDS - 201 301 (U.P.) 2. Sh. Vijay Goel, CPIO, Tehri Hydro Development Corporation Ltd., Tehri, Tehri Garhwal - 249 001. (Uttarakhand) 3. Sh. A.S. Bisht, Appellate Authority, Tehri Hydro Development Corporation Ltd., Tehri, Tehri Garhwal - 249 001. (Uttarakhand) ii "All men by nature desire to know." - Aristotle 2

Smt. T. Chanda Biswas vs Thdc India Ltd. on 3 March, 2010

Central Information Commission

(1) Film Processor (2) Film/paper processor (3) Printing Plate Processor "(i) it should be an automatic film processor falling under heading No. 90.10 of the Customs Tariff Act, 1975 and (ii) it should be imported for use in the printing industry. ORDER V.P. Gulati, Member (T) 1. This is an appeal against the order of Collector of Customs (Appeals), Bombay. The brief facts of the case are that the respondents imported goods described as Log Eeflo Automatic Film, Processor with standard accessories. The goods were assessed under Tariff Heading 90.10 of the Customs Tariff and the benefit of Notification No. 11/77-Cus., dated 15-1-1977 was denied to them. The respondents filed a refund claim claiming the benefit of Notification No. 11/77 before the Assistant Collector and their plea for refund was turned down by the Assistant Collector on the ground that the said Notification covered only Film processor and not the combined film/paper processor not withstanding the fact that the equipment imported was for the printing industry. The said notification for convenience of reference is reproduced below : "In exercise of the powers conferred by Sub-section (1) of Section 25 of the Customs Act, 1962 (52 of 1962), the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts automatic film processor, falling under Heading No. 90.10 of the First Schedule to the Customs Tariff Act, 1975 (51 of 1975), when imported into India, from so much of that portion of the duty of customs leviable thereon which is specified in the said First Schedule, as is in excess of 40 per cent ad valorem : Provided that it is proved to the satisfaction of the Assistant Collector of Customs that the automatic film processor has been imported into India for use in the printing industry". The Collector of Customs (Appeals) however, allowed the appellant plea following the ratio of a decision of this Tribunal in the case of Andhra Patrika, Madras v. Collector of Customs, Madras [1983 (13) E.L.T. 1103 (Tribunal)]. 2. The learned Jr. Departmental Representative for the Department was asked whether the Revenue has accepted this decision of the Tribunal or had filed an appeal before the Supreme Court, he stated that he had no information whether in the case of Andhra Patrika, the Department has gone in appeal but stated that in other two cases relating to Kerala State Film Corporation covered by this Tribunal's Order No. 837/84 dated 2-11-84 [1989 (43) E.L.T. 534 (Tribunal)] and Order No. 472/82, dated 31-5-1983, the Department was in appeal before the Hon'ble Supreme Court where the issue involved was similar. He pointed out, no doubt there are a number of decisions of the Tribunal which are against the Revenue but pleaded that he would like to mention that in view of the ground taken in the appeal before us, the matter required to be examined. 3. The learned Departmental Representative pointed out that the processors for the printing industry were of three types. These are - He stated that the Film processor and film/paper processor were two separate sets of apparatus and with different characteristics and that inasmuch as, the processor covered under notification was only a film processor and the processor imported by the respondents belong to film paper processor. The benefit of the notification could not be extended. He pleaded that the notification should be strictly interpreted. In this connection, he cited the decision of the Hon'ble Calcutta High Court in the case of India Tobacco Co. v. Union of India [1988 (34) E.L.T. 473 (Cal.) = 1988 (17) ECR 148 para 28]. He pleaded that the Hon'ble High Court in that case as held that the benefit of ambiguity in the notification could not be given to the appellants. 4. Shri M.M. Sarin, learned Advocate for the respondents, pleaded that the goods imported by them were covered by the earlier order of the Tribunal in the case of Andhra Patrika and the Tribunal had followed this decision in other cases extending the benefit of Notification No. 11/77. He pleaded that the assessment of the goods under Tariff Heading 90.10 was not in dispute and the issue only related to the benefit of the notification. He pleaded that the Tribunal had taken note of the fact that the film processor imported was capable of being used for processing of paper also and after going into all the aspects had extended the benefit of the notification in the earlier cases. He pleaded that the technology had been advancing and that this unit processed the film or the paper by the same process using the same developing media. Only the exposure and timing etc. were controlled. 5. The learned Departmental Representative in reply stated that it was not denied that there were three types of processor and inasmuch as the film processor and film/paper processor were different entities and benefit of notification could not be made available to the goods imported. 6. We observe that it is not in dispute that the equipment imported processes the films and is also used for processing the paper. This Tribunal had taken note of this fact and held as under in the case of Andhra Patrika (supra) : We find that both these conditions are fulfilled in the case before us. If, in addition to film processing the machine can perform the other function of paper processing as well, the exemption cannot be denied. Accordingly, we allow the appeal with consequential relief to the appellant." 7. We find no reason to depart from the decision of the Tribunal. No other decision contrary to this has been brought to our notice by the learned Departmental Representative. Following the decision of the Tribunal above, we dismiss the appeal of the Revenue.

Collector Of Customs vs Living Media (I) Ltd. on 31 March, 1989

Customs, Excise and Gold Tribunal - Delhi

IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.17738 of 2008 Ram Pukar Prasad Versus The State Of Bihar & Anr with Cr.Misc. No.43217 of 2008 Amresh Kumar Mishra Versus The State Of Bihar & Anr ----------- Namita ( Rajendra Kumar Mishra, J.) 03 14.09.2011 With consent of both the parties, put up these cases after one week retaining their position.

Amresh Kumar Mishra vs The State Of Bihar & Anr on 14 September, 2011

Patna High Court - Orders

JUDGMENT J.B. Koshy J. The petitioner is questioning exhibits P1 to P3 notices issued by the Income Tax Department for reopening the assessment under section 147 of the Income Tax Act, 1961. The petitioner is an assessee to income-tax since 1972-73. The petitioner claimed exemption from payment of tax on the basis of the doctrine of mutuality. It is the contention of the petitioner that the petitioner was giving the facilities to members and their families only. The petitioner's contention was upheld by this court in CIT v. Trivandrum Club (1989) 177 ITR 550 (Ker) in respect of the year 1974-75. During the course of reassessment proceedings for the assessment year 1992-93, the Income Tax Department found that there is a hall which is used for marriage purposes and the hall is booked by non-members also. The department came to the conclusion that it is hired out to non-members also and there are separate forms for booking the hall for members and non-members with separate rates of fees. That is called "Rules and conditions for hiring Sree Subramanya Hall, Trivandrum, by non-members of the club". Therefore, the earlier decision was not applicable. Based upon that, the subsequent years' assessments were also reopened. In view of the materials found out during the reassessment proceedings for the year 1992-93, notices were issued, exhibits P1 to P3, for reopening the assessment under section 147 for the assessment years 1989-90, 1990-91 and 1991-92. Section 148 deals with issuing of notice for reopening of assessment. Section 148 reads as follows : "148. (1) Before making the assessment, reassessment or recomputation under section 147, the assessing officer shall serve on the assessee a notice requiring him to furnish within such period, as may be specified in the notice, a return of his income or the income of any other person in respect of which he is assessable under this Act during the previous year corresponding to the relevant assessment year, in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed; and the provisions of this Act shall, so far as may be, apply accordingly as if such return were a return required to be furnished under section 139. (2) The assessing officer shall, before issuing any notice under this section, record his reasons for doing so." 2. It is the contention of the petitioner that the Supreme Court in ITO v. Lakhmani Mewal Das (1976) 103 ITR 437 (SC) held that subsequent information regarding a loan taken by the assessee in a subsequent assessment year is not a sufficient cause for reopening the previous assessments. It is also stated that there should be reason for formation of the belief that there has been escapement of the income of the assessee from assessment and it must be held in good faith and should not be a mere pretence. It was pointed out by Sri George K. George that in Phool Chand Bajrang Lal v. ITO (1993) 203 ITR 456 (SC) during the course of assessment for a subsequent year information was received that they never lent money to any person during past years also and that constituted sufficient reason for reopening previous year's assessment also. 2. It is the contention of the petitioner that the Supreme Court in ITO v. Lakhmani Mewal Das (1976) 103 ITR 437 (SC) held that subsequent information regarding a loan taken by the assessee in a subsequent assessment year is not a sufficient cause for reopening the previous assessments. It is also stated that there should be reason for formation of the belief that there has been escapement of the income of the assessee from assessment and it must be held in good faith and should not be a mere pretence. It was pointed out by Sri George K. George that in Phool Chand Bajrang Lal v. ITO (1993) 203 ITR 456 (SC) during the course of assessment for a subsequent year information was received that they never lent money to any person during past years also and that constituted sufficient reason for reopening previous year's assessment also. As far as this case is concerned, according to the department, during reassessment proceedings of 1992-93 assessment year, information was received that the hall was being given on rent for non-members also not only in 1992 but also for the previous years. It is not stated by the assessee that during the assessment years 1989-90, 1990-91 and 1991-92 also the hall was rented out to non-members as was done in 1992-93. In any event, that is a question of fact to be looked into. It is true that there should be bona fide reasons for re-opening the assessment. Whether it is sufficient or not is not a matter to be considered under article 226 of the Constitution. Exhibits P1 to P3 are only notices. It is for the assessee to impress upon the officer that there was no sufficient reason for reopening the assessment. Therefore, I am of the view that the matter has to be decided with the facts of the case in question and it is for the concerned officers and thereafter the appellate authority to find out whether there are sufficient reasons or not for reopening the assessment. 3. Learned counsel for the petitioner submitted that the writ petition was admitted in 1999. Since the matter was pending here for years, on the basis of the decision of the Patna High Court in Dhanaraj Singh and Co. v. CIT (1996) 218 ITR 312 (Pat) the matter should be decided herein. It is true that at this distance of time the petitioner cannot be non-suited for the availability of alternate remedy. The petitioner should be allowed time to file further reply before the Income Tax Officer. But, I am of the view that sufficiency of reasons for the Income Tax Officer to reassess the proceedings in view of the information received during the reassessment proceedings for the year 1992-93 is a matter which cannot be considered under article 226 or 227 of the Constitution of India before even an order is passed by the concerned officer at the notice stage. The Income Tax Officer has to decide the matter. Therefore, the petitioner is allowed to press his contentions before the Income Tax Officer and give additional reply, if any, within one month from today so that the jurisdictional objection raised by the petitioner can be considered by the Income Tax Officer. Since any observation made regarding the merits will affect the decision of the authorities, I refrain from making any observation regarding the merits of the matter. Therefore, without prejudice to the right of the petitioner to make objection before the authority concerned, I dispose of the original petition as I am of the view that the writ petition is not maintainable at this stage. 3. Learned counsel for the petitioner submitted that the writ petition was admitted in 1999. Since the matter was pending here for years, on the basis of the decision of the Patna High Court in Dhanaraj Singh and Co. v. CIT (1996) 218 ITR 312 (Pat) the matter should be decided herein. It is true that at this distance of time the petitioner cannot be non-suited for the availability of alternate remedy. The petitioner should be allowed time to file further reply before the Income Tax Officer. But, I am of the view that sufficiency of reasons for the Income Tax Officer to reassess the proceedings in view of the information received during the reassessment proceedings for the year 1992-93 is a matter which cannot be considered under article 226 or 227 of the Constitution of India before even an order is passed by the concerned officer at the notice stage. The Income Tax Officer has to decide the matter. Therefore, the petitioner is allowed to press his contentions before the Income Tax Officer and give additional reply, if any, within one month from today so that the jurisdictional objection raised by the petitioner can be considered by the Income Tax Officer. Since any observation made regarding the merits will affect the decision of the authorities, I refrain from making any observation regarding the merits of the matter. Therefore, without prejudice to the right of the petitioner to make objection before the authority concerned, I dispose of the original petition as I am of the view that the writ petition is not maintainable at this stage. OPEN

Author: J Koshy

Trivandrum Club vs Asstt. Director Of Income Tax ... on 6 February, 2002

Kerala High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.16472 of 2008 SANJAY KUMAR & ANR Versus STATE OF BIHAR & ANR ----------- NKS/- ( Rakesh Kumar, J ) 02 30-06-2010 Issue notice to Opp.Party No.2 to show cause as to why this application be not admitted and/or disposed of at the admission stage itself, for which requisites etc. through ordinary process must be filed within one week, failing which this application shall stand rejected as against Opp.Party no.2 without further reference to a Bench. Put up this case after appearance of Opp.Party no.2 or after eight weeks, whichever is earlier. In the meanwhile, call for a report from the court of learned Sub Divisional Judicial Magistrate, East Muzaffarpur in connection with Complaint Case No.1530 of 2006 regarding status of the case.

Sanjay Kumar &Amp; Anr vs State Of Bihar &Amp; Anr on 30 June, 2010

Patna High Court - Orders

IN THE HIGH COURT OF KERALA AT ERNAKULAM MACA.No. 1320 of 2006() 1. IQBALK., S/O. MOIN, ... Petitioner Vs 1. THE BRANCH MANAGER, ... Respondent For Petitioner :SRI.GRASHIOUS KURIAKOSE For Respondent :SRI.VPK.PANICKER The Hon'ble MR. Justice K.M.JOSEPH The Hon'ble MR. Justice M.L.JOSEPH FRANCIS Dated :02/07/2009 O R D E R K. M. JOSEPH & M. L. JOSEPH FRANCIS, JJ. -------------------------------------------------- M.A.C.A. NO. 1320 OF 2006 C --------------------------------------------------- Dated this the 2nd July, 2009 JUDGMENT K.M. Joseph, J. We heard the learned counsel for the appellant and the learned counsel for the respondent Insurance Company. Even though the matter is coming up in the petition list, by consent of both parties, the matter is disposed of. 2. Appellant is the claimant in a petition filed under Section 166 of the Motor Vehicles Act. The tribunal has awarded a total sum of Rs.66,500/=. This Appeal is directed against the quantum. 3. Learned counsel for the appellant would submit that the income fixed by the tribunal at Rs.1,500/= per month is highly inadequate. The appellant has given evidence, it is pointed out, and the evidence showed that it could be fixed at a much higher  MACA.1320/06 C 2 level. Learned counsel for the appellant further submits that the Supreme Court has held that even in respect of a house wife, the income can be taken at Rs.3,000/= per month. Here, there is some oral evidence also. The accident took place in the year 2002. Therefore, we can safely fix the income at Rs.2,000/= per month. This means that the appellant will be entitled to Rs.1,500/= more towards loss of earning. Further, on the said basis, the appellant will be entitled to Rs.16,500/= more for disability. This is a case where the injury suffered by the appellant is type I compound fracture of both bones of the right leg. We also notice that no amount is awarded towards loss of amenities. We award Rs.5,000/= towards loss of amenities. We would think that the appellant can be awarded a sum of Rs.5,000/= more towards pain and suffering, in view of the nature of the injuries. Accordingly, the Appeal is partly allowed and the appellant is allowed to realise Rs.28,000/=  MACA.1320/06 C 3 from the respondent with 7.5 per cent interest from the date of the petition till the date of realisation. Sd/= K.M. JOSEPH, JUDGE Sd/= M. L. JOSEPH FRANCIS, JUDGE kbk. // True Copy // PS to Judge 

Iqbalk. vs The Branch Manager on 2 July, 2009

Kerala High Court

In the High Court of Punjab & Haryana at Chandigarh R. F. A. No. 3027 of 2002 and Cross-objection No. 29/CI of 2004 (O&M) Charan Singh and another ... Appellants vs Union Territory, Chandigarh .... Respondent10.2.2009 ( Rajesh Bindal) vs. Judge Coram: Hon'ble Mr. Justice Rajesh Bindal Present: Mr. P. C. Dhiman, Advocate, for the appellants. Mr. Deepak Sharma, Advocate, for UT Chandigarh. Rajesh Bindal J. For orders see detailed reasons recorded in a separate order of even date passed in RFA No. 3921 of 2007 - Arunash Chander Kaushik and others vs Union Territory, Chandigarh.

Charan Singh And Another vs Union Territory on 10 February, 2009

Punjab-Haryana High Court

JUDGMENT 1. This appeal under Section 173 of the Motor Vehicles Act, 1988 is directed against the judgment/award dated 2.4.1996 passed by the learned Member, Motor Accident Claims Tribunal, West Tripura, Agartala in T.S.(MACT) No. 159 of 1992 making an award of Rs. 1,15,000 being compensation to the sole respondent. 2. The case leading to this appeal is that the respondent being the owner of his Maruti Van bearing No. TR 020208 got it insured with the appellant Insurance Company. During the validity of the insurance policy on 5.6.1992 the owner having valid driving licence while was driving the said vehicle met with an accident having dashed with a tree and as a result the owner driver sustained grievous injuries on different parts of his body. He received treatment initially at G.B. Hospital, Agartala and thereafter at SSKM Hospital, Kolkata. He filed the claim petition under Section 166 of the Act and after trial the Tribunal awarded compensation as stated above. 3. Aggrieved, the Insurance Company preferred this appeal mainly on the ground of non-maintainability of the claim petition stating, inter alia, that the insurance policy does covers only the third party risk and since as a result of use of the vehicle owner sustained injuries, no compensation could be allowed under the provision of the Act. The main question posed to be decided is whether the claimant is entitled to be compensated by the Insurance Company in terms of the statutory policy. 4. The learned counsel for the appellant submits that the appellant by the policy promised to indemnify the owner of the insured vehicle to make payment of any amount for which the owner incurred liability and since in the present case the owner respondent incurred no liability to anybody else the petition is/was not maintainable. 5. Chapter-XI of the M.V. Act commencing from Section 145 deals with the matter pertaining to compulsory insurance and liability of insurer thereof. Section 147 of the Act postulates that in order to comply with the legal requirement of Chapter XI an insurance policy must be a policy which is issued by an authorised insurer taking liability to indemnify the person who would incur any liability in respect of death or bodily injury to any person including the owner of the goods or authorised representative of the goods carried in his vehicle, any passengers boarded in his vehicle or any pedestrian or damage to any property of the third party caused by or arising out of the use of the vehicle so insured in a public place. The provision of Section 147 of the Act corresponds to Section 95(1) of the Motor Vehicles Act, 1939 so far the zone of liability is concerned but the only change brought in by the new Act of 1988 is that the financial liability against death, bodily injury etc. is now unlimited while under the Old Act some limitation had been there. Both under the old as well as the new act the insurer with whom the vehicle stands insured has the statutory liability to indemnify the owner of the insured vehicle so much of the amount for which the owner of the insured vehicle would incur any liability in respect of death, bodily injury to any person as has been mentioned in the section itself and also for damage caused to property of a third party. Of course, for damage of the property of third party liability is limited to Rs. 6000 But for causing death or bodily injury the liability is unlimited. Hence, in-depth study of Section 147(1) of the Act (Corresponding to the provision of 195 of the Old Act) reveals that the Insurance Company is put under statutory obligation to indemnify the owner of the insured vehicle. Only in case the owner incurrs any liability towards any person as a result of any accident caused by or arising out of the use of the vehicle so insured. Unless the owner of the insured vehicle incurs any liability, the Insurance Company cannot be put under statutory obligation to pay compensation. The incurring of liability by the owner of the insured vehicle is a sine qua non to indemnify the same by the Insurance Company with whom the vehicle stands insured. The insured policy covers third party risk and that will come into play only when it is proved that the owner of the insured vehicle has incurred same liability towards any other person. In this respect, a profitable ference may be had to a decided case by the Hon'ble Supreme Court in Minur B. Mehta and Anr. v. Balkrishna Ramchandra Nayan and Anr. reported in AIR 1977 SC 1248. 6. Thus, it is settled proposition of law that in case the owner has incurred no liability in respect of death or bodily injury to any person, the Insurance Company cannot be held to indemnify anything under the Act. In the present case the owner respondent while driving the vehicle caused the accident having dashed with a tree as a result he sustained injury and he incurred no liability to anybody else nor the action of the owner of the Insured vehicle caused any death bodily injury or damage to property to anybody else but he sustained self injury and, as such, the owner incurred no liability to be indemnified by the appellant Insurance company under M.V. Act. This statutory legal aspect has been totally ignored by the learned Tribunal while passed the impugned award. 7. In that view of the matter, the appeal succeeds. The impugned award dated 2.4.1996 is set aside. It appears that at the time of preferring appeal the appellant Insurance Company deposited Rs. 25,000 before the Registry which was paid to the respondent. The respondent is directed to deposit the same with the Registry within a period of 15 days and after deposit the same should be refunded to the Insurance Company, 8. The appeal allowed as indicated above with no order as to costs.

United India Insurance Co. Ltd. vs Haralal Nath Shib on 13 July, 2001

Gauhati High Court

ORDER B.S. Patil, J. 1. A suspended teacher is before this Court challenging the orders passed by the 3rd respondent vide Annexures-N and T dated 16.08.2003 and 21.02.2005 respectively. 2. Few facts which are essential for the disposal of this case can be set out as under: The petitioner who was working as a teacher in the 1st respondent - School was kept under suspension pending enquiry by an order dated 08.01.2002 vide Annexure-L. The said order was challenged before the 3rd respondent invoking Sections 131 and 133 of the Karnataka Education Act, 1983 (for short 'the Act'). The 3rd respondent by order dated 16.08.2003 dismissed the appeal holding that the dispute pertains to one filed by the petitioner against the Management challenging the order of suspension and hence the appropriate Authority to decide the dispute was the Educational Appellate Tribunal. 3. The petitioner aggrieved by this order presented a review petition before the 3rd respondent contending inter alia that there was no appeal provided against the order of suspension to the Educational Appellate Tribunal and that the appeal which she had presented earlier in Appeal No. 19/2002 was maintainable. The 3rd respondent, not persuaded by the contentions urged by the petitioner has dismissed the said review petition also, by order dated 21.02.2005. Hence, the petitioner has approached this Court challenging both the orders passed by the 3rd respondent. 4. I have heard the learned Counsel for both the parties and perused the materials on record. 5. Learned Counsel for the petitioner contends that the 3rd respondent has committed an error apparent on the face of the record in coming to the conclusion that the appeal remedy is provided under Section 94(5) of the Act against the order of suspension which was assailed before the 3rd respondent. It is his submission that Section 94(5) provides for an alternative remedy before the competent authority in respect of 'penalties' other than the major penalties as provided under Section 92(1). 6. Elaborating his submission, he would further point out that it is not the case of the petitioner that the order of suspension was by way of penalty. He contends that the petitioner had approached the Authority invoking Sections 131 and 133 having regard to the fact that there was no other alternative remedy provided by way of any statutory appeal. 7. On the other hand, learned Counsel for the respondent contends that a reading of Section 92(3)(c) and Section 94(5) of the Act along with the Rules framed namely the Karnataka Educational Institutions (Recruitment and terms and conditions of service of employees in Private Aided Primary and Secondary Educational Institutions), Rules, 1999, particularly Rule 14 would make it clear that even as against an order of suspension an appeal lies under Section 94(5) of the Act. 8. Having regard to the respective contentions urged by both the parties, the only question that arises for consideration in this appeal is: "Whether a statutory appeal is maintainable under Section 94(5) as against the order of suspension which is produced in this case at Annexure-L dated 08.01.2002". 9. The ancillary question of course would be as to whether the 3rd respondent was justified in coming to the conclusion that there being an alternative remedy, the petition filed before him was not maintainable. 10. It is useful at this juncture to extract the provisions contained under Section 94(5), which reads thus: "94. Appeals. - (5) In respect of an order imposing a penalty other than those specified in Sub-section (1) of Section 92, on any teacher or other employee, an appeal shall lie to the competent Authority within three months from the date of communication of the order imposing such penalty." 11. What is emphasized under Section 94(5) is that an order imposing a penalty other than those specified in Section 92(1) is appealable before the competent Authority and a period of three months is prescribed as period of limitation within which the appeal has to be filed. 12. What is challenged in the instant case is the order of suspension. No penalty is imposed by the Management against the petitioner. The order of suspension in the instant case issued by the Management cannot be characterised as an order of penalty. Nor is it so described by either of the parties. When the statute in clear terms states that appeal to the Competent Authority is permissible against the orders of penalty, it cannot be interpreted so as to strain the language of the Section to include even the orders of suspension which are not in the nature of penalty or which are not punitive in nature. Such an interpretation is impermissible when the language of the Section is unambiguous. The contention of the learned Counsel for the respondent stating that Section 92(3)(c) of the Act which provides for an obligation on the Managing Committee placing an employee under suspension to forthwith report the same to the Competent Authority disclosing circumstances in which the order was made would enable such an interpretation and the remedy of appeal against the order of suspension should be taken to have been permitted impliedly by the provisions as a whole cannot be accepted. The legislature has restricted and confined the right to prefer appeals only in respect of orders that impose penalty or that are punitive in nature passed by the Management. When the intention is clear, the exercise to discern any other intention by implication referring to other provisions of the Section is uncalled for. 13. Sections 131 and 133 of the Act provide for remedies against the orders on an application from any person interested/ aggrieved. The Authorities are invested with the powers to examine the correctness or legality or the propriety of the decision taken. It is precisely for this reason the petitioner has invoked these provisions and approached the 3rd respondent challenging the order of suspension requesting to examine the matter and find out the correctness or otherwise of the order dated 16.08.2003 passed by the 3rd respondent. The 3rd respondent has rejected the petition, holding that the petitioner was required to approach the Educational Appellate Tribunal which according to the 3rd respondent was the Competent Authority. This is a total misconception of the legal position inasmuch as the Appellate Tribunal is invested with the powers under Section 94(1) and these powers conferred are in connection with the orders which have resulted in major penalties. The order impugned before the 3rd respondent was not the one that could have been challenged before the Educational Appellate Tribunal, Therefore, this order is totally unsustainable in law. When this was brought to the notice of the 3rd respondent by presenting the Review Petition No. 84/03, the 3rd respondent has chosen to dismiss the same holding that the petitioner had an opportunity to present an appeal before the Competent Authority under Section 94(4) and (5). 14. As already held by me Section 94(5) does not provide an appellate remedy against the order which are not in the nature of penalty or which are not punitive in nature. In this regard useful reference can be made to the decision of the Division Bench of this Court in the case of MANAGEMENT OF M.S. RAMAIAH MEDICAL COLLEGE & HOSPITAL v. Dr. M. SOMASHEKAR, . At paragraph-11 of the said judgment, the Division Bench has observed thus: "We may sum up the position regarding remedies available to an employee (including a teacher) of Private Educational institution thus: (i) The remedy against an order imposing the penalty of dismissal, removal or reduction in rank, is by way of appeal to the Educational Appellate Tribunal under Section 94(1). (ii) The remedy against an order imposing any other penalty, is by way of an appeal to the competent Authority under Section 94(5) with a further appeal to the Educational Appellate Tribunal under Section 94(7). (iii) The remedy against any order of management which is not punitive in nature is by way of revision to the State Government under Section 131. (iv) .............." 15. Thus, it is clear that the remedy in the instant case for the petitioner is to approach the 3rd respondent under Section 131. She had rightly approached the Authority invoking the provisions of Section 131. The 3rd respondent is not justified in rejecting the petition filed by the petitioner on the ground that alternative remedy was available by way of an appeal. Hence, the impugned orders at Annexures-N and T dated 16.08.2003 and 21.02.2005 respectively passed by the 3rd respondent are not sustainable in law. Therefore, I pass the following: ORDER Writ Petition is allowed. The impugned orders passed by the 3rd respondent dated 16.08.2003 and 21.02.2005 vide Annexures-N and T respectively are hereby set aside. The matter is remanded to the 3rd respondent with a direction to examine the matter in the light of the observations made above, on the merits of the case within a period of three months from the date of receipt of a copy of this order. It is open to the petitioner to move the 3rd respondent seeking an interim order pending disposal of the appeal.

Author: B Patil

Smt. Muthubai vs Manjula Makkala Kendra Kannada ... on 9 March, 2005

Karnataka High Court

I21" TEE HIGE COURT OF KARNATAKA AT B3133-ALORE. DATED '.!.'I% THE 16"' DAY OF J£IL¥--2009 , PRESENT THE H{)!*I"BLE MR. 3?. D. D , " 1 " THE I-IOITBLE mt. JUSTICE: v.6. ' wars pmmox liI::.1958¢§-"'I"§ i(31!}:9'l-G7'-'§&V~_- [email protected] ')';E M BETWEER' : B.R.N. Black Diamond, _ ' Ovcitrsis and Mirling A company iz1co1*porstt£+r1_I:.:1.c£er _: " V . The Cornpanies Act'1_.95?' _.ha\%iz1g"'TA.' 'L- Regstered _ t No.3 59, "7111 Cross, 1'fi-}3_10ci:, .4 " . Jayanagar, Banga§9I'e.~"S6£1,ALGJr ' ' Represented by its Iv1a11a,gir1g'VI}ii*:;(;i:r:i', . . .. .PETITIONER (By Q}; * Advocate) '1_. 4 'TI'1qe';*§t..a:1;a 'Ré*£:§§re"5€,nted its $acr-etary, 'iifiepartmeiat of Mines $51 & Textfies; Bxjiiding, giaxsgalarc ---- 560 so 1. . The mmctor.M1nes and Geologr, Khanija. Bhavan, Race course Road, Bangalore - 560 O0 1. 'E'hc Union oflndia, . Represented by its Secretary, Ministry sf Goad and M11133, Shastiri Bhavarz, New Dalhi. - . M/sfiaiagenhar iviining India Fart. Ltd; A' Sa1@11ka:r Chamber, Pest Box No.135, "' Marguo, GOA -- 493601. . Sri. HA3. Rangangcud, S/0 Late HR. C-'xaviappa, Aged about 65 _, Ncharu Court ofiihcretjpsrativs 'coxcny; " . ..RES?€)NDEN'I"S {By Sri/Smt: ckaszif " '% This Writ Peuiucgu' i$ i"fié§d--~ Articles 226 & 227 of the Constituiion of India prai3.?iI1§;'ts); .qnash the permission/apprcval by {ha Union of » India appf&IVii1g"tha rcccmraendatiérz ef "the State Gf3S§£31?Ia1I}3fl3fi$§3'.,f01f g1faI1t GE' lease to» the rcsymndent 4 and 5 t9 an " fixtent of'7'5{?S heaters and 16.80 heaters of Sundoor Kumara3Wa;m3",Fiaiig7é, .._Be11'ary District. ' This Writ Petition coming on far orders on this day " madfi the following order. * L' T' ~ ORDER Two weeks' time is granted to compl§%"'9sz::i¥:'k1A thé " e1_3'1cxf:::o?;>_3Vké*:Vr.jV:'f3i'<)1"1'js, failing which, the petition shal}. stand" "fer-' non-- prosecution, Without fuI1;her reii=:rer1(§'c:' :0 ".f>3canm§JusTKm3 &y JUQGE C6!'-"Y gt//,_ fisaistsm Regifimt viaggb Saar'; ai' §{§;:°n&.E'fik§ fiazmaiare-S60 $30!. 2, W

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

B R N Black Diamond vs The State Of Karnataka on 16 July, 2009

Karnataka High Court

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P.No. 8787 of 2009 (O& M) Date of decision: 31.7.2009 The Shaheed Udham Singh Coop.Transport Society Limited, Moonak. ......Petitioner Vs. Managing Director, PUNGRAIN and others. ...Respondents CORAM:- HON'BLE MR.JUSTICE ADARSH KUMAR GOEL HON'BLE MRS.JUSTICE DAYA CHAUDHARY PRESENT: Mr.Vivek Sharma, Advocate, for the petitioner. Mr.Charanjit Singh Bakshi, Advocate for PUNGRAIN. Mr.Tarunveer Vashist, Advocate for respondents No. 3 and 4. **** ADARSH KUMAR GOEL, J. (Oral) (ADARSH KUMAR GOEL) JUDGE (DAYA CHAUDHARY) July 31, 2009 JUDGE raghav 1. This petition challenges award of work of transporation of grain to respondent No.4. 2. Case of the petitioner is that in pursuance of tender notice Annexure P-1, the petitioner gave its bid. Though the bid of the petitioner was lowest, the work was allotted to respondent No.4. The petitioner made a complaint, on which no action was taken. Respondent No.4 was not eligible but the work was allotted to him on account of his connivance with the official respondents. 3. In response to the notice, reply has been filed by the District Manager, PUNGRAIN stating that respondent No.4 was eligible and rate quoted by him was the lowest. There was no question of any connivance. The rate quoted by the petitioner being higher, the work was not allotted to C.W.P.No. 8787 of 2009 -2- the petitioner on that account. 4. In view of the above, disputed questions raised by the petitioner that the rate quoted by respondent No.4 was higher than that of the petitioner, cannot be gone into in summary jurisdiction under Article 226 of the Constitution of India. If the petitioner wishes to raise this issue before any other forum, this order will not stand in its way. 5. The petition is disposed of.Note: Whether this case is to be referred to the Reporter? ........Yes/No C.W.P.No. 8787 of 2009 -3- C.W.P.No. 8787 of 2009 -4-

The Shaheed Udham Singh ... vs Managing Director on 31 July, 2009

Punjab-Haryana High Court

"Freedom of opinion and its expression, whether by speech, writing, or printing. They are too certain to need discussion....Nor can there be any doubt of their breadth, nor that their underlying safeguard is.....'that opinion is free, and that conduct alone is amenable to law'." JUDGMENT Desai, J. 1. This is an application in revision against conviction under Section 18 of the Indian Press (Emergency Powers) Act (Act No. 23 of 1931). There is no dispute about the facts; the conviction is challenged on the ground that the Act was unconstitutional and became void on the passing of the Constitution. On a search of the applicant's house on 11-6-1950 in execution of a search warrant issued by the District Magistrate of Azamgarh cyclostyled leaflets were recovered. Some leaflets contained the constitution of the United Provinces Khet Majdoor Union, some were entitled "Conspiracy of Great Britain and America to start third world War" and the others contained communist, propaganda. The name of the printer was not printed on any of them. 2. Section 15 of the Act lays down that a District Magistrate may "by order in writing and subject to such conditions as he may think fit to impose, authorise any person by name to publish a news sheet, or to publish news sheets from time to time". A news sheet is defined in Section 2 of the Act to mean "any document other than a newspaper containing published news or comments on public news or any matter described in Sub-section (1) of Section 4". It was admitted before us by shri S. N. Dwivedi that the documents recovered from the possession of the applicant contained public news or comments on public news and are news sheets as defined in the Act. It is therefore not necessary for us to deal with Section 4(1). "Any news sheet other than a news sheet published by a person authorised under Section 15 to publish it" is an unauthorised news sheet. Section 18 makes anyone who sells, distributes or beeps for sale or distribution any unauthorised news sheets punishable with imprisonment extending to six months or with fine or with both. It is conceded that nobody was authorised by the District Magistrate to publish the news sheets that were recovered from the applicant's possession. So they were unauthorised news sheets. It is also conceded that the applicant made or kept for distribution or publication the unauthorised news sheets; he was, therefore, liable to be convicted under Section 18 if the Act was validly in force on 11-6-1950. It was contended, however, that it became void under Article 13 of the Constitution as soon as the Constitution came in force. 3. All laws in force immediately before the commencement of the Constitution, in so far as they are inconsistent with Articles 14 to 35, to the extent of such inconsistency, are void under Article 13. Under Article 19(1)(a) "all citizens shall have the right to freedom of speech and expression". As the Article stood on 11-6-50 this freedom was subject to the right of the State to make any law relating to libel, slander, defamation, contempt of court or any matter which offends against decency or morality or which undermines the security of, or tends to overthrow, the State. The Article was amended on 18-6-1951, that is, after the commission of the alleged offence by the applicant. The effect of the amendment is that the freedom of speech and expression is subject to the right of the State to make any law which imposes "reasonable restrictions" on the exercise of the right "in the interests of the security of the State or public order" etc. It is further laid down in the amendment that no law in force immediately before the commencement of the Constitution which is consistent with Article 19 as amended shall be deemed to be void or ever to have become void on the ground only that being a law which takes away or abridges the freedom of speech and expression, its operation was not saved by Clause (2) of the Article as originally enacted. In other words, the amendment of Article 19 has been given retrospective effect. Article 14 enjoins upon the State not to deny any person "the equal protection of the laws". Article 20 is to the effect that "no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence". The Indian Press (Emergency Powers) Act was repealed by the Press (Objectionable Matters) Act (No. 56 of 1951) and is no longer in force. But the repeal does not affect the conviction of the applicant if it was valid. 4. It was contended on behalf of the applicant that Sections 15 and 13 of the Act were unconstitutional and became void under Article 13, because they abridged the freedom of speech and expression, were not a law relating to any matter which undermines the security of, or tends to overthrow, the State and denied the equal protection of the laws. With reference to the amendment of Article 19 after the commission of the offence (and even the conviction by the Magistrate), it was contended that the restrictions imposed by Sections 15 and 18 upon the freedom of speech and expression were not reasonable and were not imposed in the interest of the security of the State and were therefore not covered by the saving clause. It was further contended that if the sections became void on 26-1-1950 on the passing of the Constitution, and consequently the act done by the applicant on 11-6-1950 was not an offence, the retrospective effect given to the amendment of Article 19 did not have the effect of converting the act into an offence in contravention of the provisions of Article 20. The contention was that if the act when it was done was not an offence the applicant could not possibly be convicted for doing the act. 5. It was not disputed that the freedom of speech and expression includes liberty of the press. Amendment 14 of the American Constitution is that no State shall deprive any person of life, liberty or property without due process of law or deny to any person the equal protection of the laws. It has been held in -- 'Near v. Minnesota Ex. Rel. Olson', (1930) 283 US 697 (A); -- 'Lovell v. Griffin', (1940) 303 US 444 (B) and -- 'Burstyn v. Wilson', (1951) 343 US 495 : 96 Law Ed 1098 (C), that liberty of the press and of speech is within the liberty safeguarded by the 14th Amendment. In -- 'Schneider v. Irvington', (1939) 84 Law Ed 155 (D), it was stated : "This court has characterised the freedom of speech and that of the press as fundamental personal rights and liberties. The phrase is not an empty one and was not lightly used. It reflects the belief of the framers of the Constitution that exercise of the rights lies at the foundation of free government by free men. It stresses.... the importance of preventing the restriction of enjoyment of these liberties" (pages 164-165 of the Lawyers' Edition). "Freedom of the press and freedom of speech are the same, being distinguished only in the form of utterance. The 'liberty of the press' is not confined to newspapers and periodicals, but necessarily embraces pamphlets, leaflets and every sort of publication affording a vehicle of information and opinion". (16 Corpus Juris Secundum, Constitutional law, paragraph 213) 6. The First Amendment of the American Constitution prohibits the Congress from making any law "abridging the freedom of speech or of the press". It is supposed to have the same scope as the due process clause of the 14th Amendment, the difference being that it imposes a restriction on the powers of the Congress, while the 14th Amendment imposes a restriction on the powers of the states. The amendments are held not to create any rights or privileges of personal liberty but only to protect those which people already have, by giving them an immunity against governments. It is stated by Willis on Constitutional Law, p. 490 that "since freedom from censorship had become a privilege of Englishmen long before our Revolutionary War, it certainly must be held that the First Amendment intended to guarantee at least freedom from censorship." The guarantee from freedom from censorship, however, does not mean as much as the uninformed might at first think. The limitation is only against legal censorship, that is, censorship which depends upon the power of law. Further the guarantee does not give complete protection against even legal censorship. Willis writes on page 491(17) that there are so many exceptions to the rule of immunity against censorship that not a great deal of the rule is now left. Among the exceptions are the many forms of censorship exercised by courts of equity jurisdiction, and prohibition by legislation of intimidation by speech and wilting, publication of indecent matter, Government employees' engaging in political activities & publications dangerous to the conduct of military operations in war time. These exceptions constitute important qualifications of the rule against censorship but outside of them it may be said that the people of United States are guaranteed freedom of speech and of the press immune from censorship. It is settled that freedom of speech and of the press means something more than immunity from previous restraints. According to Corpus Juris Secundum Vol. 16, "Constitutional Law" paragraph 213, the chief purpose of the constitutional guarantees is to prevent previous restraints or censorship on speech or press, that the guarantees are not intended to constitute an absolute licence to speak and to publish anything that one pleases that they rank no higher than other rights protected by the constitution, that the right is to be enjoyed subject to implied limitations, that is, limitations created by statutes enacted in exercise of the Government's power of taxation or in the legitimate exercise of the police powers, or by the inherent powers of the court to punish for contempt or by the law relating to libel and slander. In -- 'Near v. Minnesota', (A) C. J. Hughes stated at p. 713 : "It is the chief purpose of the guarantee to prevent previous restraints upon publication", and pointed out that while in England the executive has no power to impose restraint upon publication though the legislature can impose it, in the United States even the legislature cannot impose it, being prohibited by the Amendments. He referred to the statement in 4 Black's Commentaries pp. 151 and 152 to the effect that "the liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications, and not in freedom from censor for criminal matter when published." In that case a State had passed an Act providing for an injunction against publishing or selling newspapers containing obscene malicious or defamatory matter. The Supreme Court held the Act to be unconstitutional as infringing the liberty of the press. In -- 'Lovell v. Griffin', (B) an ordi- nance making it an offence for any one to distribute circulars etc., without permission from the City Manager was held to be unconstitutional. It was pointed out that the ordinance in its broad sweep prohibited distribution of magazines, periodicals etc., was not limited to literature that was obscene or offensive to public morals and struck "at the very foundation of the freedom of the press by subjecting it to licence and censorship". In the case -- 'Burstyn v. Wilson', (C) it was held that a State cannot ban a film on the basis of a censor's certificate that it is sacrilegious. The statute under consideration required denial of licence if a film was sacrilegious. Clark, J. following 'Near's case', (A) observed at page 1106 : "The statute involved here does not seek to punish, as a past offence, speech or writing falling within the permissible scope, of subsequent punishment.... Such a previous restraint is a form of infringement upon freedom of expression to be especially condemned." In -- 'Schneider's case', (D), it was held that: "To require a censorship through licence which makes impossible the free and unhampered distribution of pamphlets strikes at the very heart of constitutional guarantees." In -- 'Samuel Sam v. People of the State of New York', (1950) 334 US 553 (E). a municipal ordinance prohibiting the use of amplifying devices, except with the permission, of the Commissioner of Police, was held to establish a previous restraint on the right to free speech. In 'Kunz v. New York', (1951) 348 US 290 : 95 Law Ed. 280 (F),C.J. Vinson, following -- 'Samuel saia v. People of the State of New York', (E), observed at page 284 of the Lawyer's Edition : "..an ordinance which gives an administrative official discretionary power to control in advance the right of citizens to speak on religious matters on the streets of New York. As such the ordinance is clearly invalid as a prior restraint on the exercise of the First Amendment rights." As against these authorities, there is -- 'Mutual Film Corporation v. Industrial Commission of Ohio', (1914) 236 U. S. 230 : 59 Lav/ Ed. 552 (G), which uphold a State Act providing that the censors were to pass only such films as are of a moral, educational or entertaining & harmless character and making it an offence for any one to exhibit films without the censor's approval, it was held that the creation of a censor to examine and censor a film and to approve only such films as are of a moral .....character does not infringe the freedom of speech and publication. But McKenna, said on page 559 : He based his decision on his view that guarantees of free opinion and speech cannot be extended to multitudinous shows which are advertised on bill boards and motion pictures cannot be brought, "into practical and legal similitude to a free press and liberty of opinion" (p. 559), and that "the exhibition of moving pictures is a business, pure & simple". So even that case is no authority for the view that prior restraint or censorship is not an infringement of the freedom of speech and the press. The view that expression by means of motion pictures is not included within the free speech & free press guarantee of the Amendments was expressly overruled in the case of 'Burstyn' (C). 7. Sections 15 and 18 of the Act under consideration, provide for the obtaining of a permit by every person who wants to publish any news sheet and for punishment for making, selling, distributing and keeping for sale, distribution etc., any unauthorised news sheet. This is prior restraint or censorship on the publication of news sheets and amounts to an infringement of the freedom, of speech and expression guaranteed under Article 19(1)(a). The provisions would, therefore, be valid after 26-1-1950, only if they are covered by the saving clause in Article 19(2). I am considering for the present Article 19(2) as it was originally enacted. The only exception to the freedom of speech and expression is a law made by a State relating to certain specified matters. The only matter that is relevant to the enquiry before us is matter "which undermines the security of, or tends to overthrow, the State". If the impugned provisions of Section 15 can be said to be a law relating to such a matter, they would be saved. Originally the Act was enacted to provide "against the publication of matter inciting to, or encouraging, murder or violence." The preamble of the Act was amended by the Criminal Law Amendment Act (No. 23 of 1932) and now the object of the Act is stated to be "to provide for the better control of the press". Thus the express object of the Act has nothing to do with the security of the State. Of course, security of the State would be one of the objects to be achieved by the Act, but it would be only one of the objects and there would be several other objects to be achieved by the Act. The law that is saved by Article 19(2) is one that relates exclusively, or at least principally, to any of the matters specified therein. The very object behind specifying the matters is that the law must deal exclusively or principally with, those matters. Had the framers of the Constitution intended to save any general law which did not specifically deal with any of the matters, they would not have specified the matters. The impugned Act cannot possibly be said to relate to any matter which undermines the security of, or tends to overthrow, the State. Nor is keeping a press or publishing newspapers and periodicals such a matter. Even if it be said that the object behind the impugned provisions was to control matters which may undermine the security of, or tend to overthrow, the State, they cannot be said to relate to such matters. They do not relate any more to matters which undermine the security of, or tend to overthrow, the State than to matters which offend against decency or morality or to libel, slander and contempt of court, or as a matter of fact to any other matter which can be spoken or expressed. The Act provides for demanding security from persons keeping printing presses or publishing newspapers, for the forfeiture of the security if the printing press is used for printing, or the newspaper contains, any words inciting to any cognisable offence involving violence or seducing any soldier, sailor etc., from the armed forces or bringing into hatred or contempt the Government established by law or promoting feelings of enmity or hatred between different classes of the subjects or prejudicing the recruiting of persons to serve in the forces or encouraging or inciting anyone to interfere with the administration of law or with maintenance of law and order, for keeping press or publishing newspaper without making deposit, for authorising persons to publish news sheets, for punishing selling, distributing or keeping for sale, distribution etc., unauthorised news sheets, for de- claring certain publications as forfeited and for authorising customs and postal officers to detain packages containing newspapers or other documents of objectionable nature. Section 4 is the only section which describes objectionable matters. I have given a summary of them above. It may be said that some of those matters undermine the security of, or tend to overthrow the state but the provisions relating to the objectionable matters come in for application only when the security furnished by a keeper of a printing press or a publisher of a newspaper is to be forfeited or when a Customs or Postal official has to decide whether to detain a package. So far as the demanding of the security itself is concerned, the demand has nothing to do with the objectionable matters; the security can be demanded from any keeper of a printing press or publisher. Any document which contains the objectionable matters is a news sheet, but any other document containing public news or comments on public news also is a news sheet. Therefore, the impugned provisions in Sections 15 and 18 are not confined to documents containing only the objectionable matters, but govern all news sheets regardless of their contents. Merely because they apply to all news sheets including those containing matters which undermine the security of or tend to overthrow, the State, it cannot be said that they relate to matters undermining the security etc. They can be said to relate only to news sheets containing only particular, matters. 7a. The learned Advocate General contended that the word "law" in Article 19(2) means the entire enactment and not a particular provision of it that is impugned. He contended that in order to decide Whether an existing law is covered by the saving clause or not, the court must take into consideration the entire enactment and not only a particular provision of it in isolation. He pointed out that an enactment may contain some sections which are only incidental, auxiliary or collateral to or support, others which form the principal feature of the enactment and contended that it could not have been intended by the framers of the Constitution that they should be considered in isolation and that their constitutionality should be judged by deciding whether they themselves relate to any of the specified matters or not. He particularly referred to a provision common in many enactments conferring power upon an authority to make rules to carry out the purposes of the enactment; if that provision is considered in isolation, certainly it cannot be found to relate to any of the specified matters even though the principal provisions of the enactment do relate to them. There is considerable force in the contention of the learned Advocate General, but it may not be necessary or even possible in every case to consider all the provisions of an enactment together. If an enactment relates to only one matter that can be done, but if it relates to several distinct matters, then some provisions cannot be considered along with others. The Act under consideration deals with several distinct matters; it deals with printing presses, with publication of newspapers and with publication of news sheets. In such a case, it is not possible to take the Act as a whole and to find whether the whole of it is constitutional or not. It is possible that some parts of it are constitutional, being saved by Article 19(2), but others are not. The provisions relating to printing presses or to publication of newspapers may be found to be a law relating to matters which undermine the security etc., but it does not follow that the provisions relating to news sheets also are such a law. All provisions relating to news sheets may be considered together, but there is no justification for considering along with them the other provisions of the Act. I may point out that the provisions relating to news sheets contained in Sections 15 to 18 form a separate part of the Act under the heading "Nefarious news sheets and newspapers". They have no concern with any of the other provisions of the Act except that containing definitions. Article 13(1) does contemplate the judging of the constitutionality of an enactment in parts. An existing law does not become wholly void under it because it is inconsistent with the provisions of part III of the Constitution. If there is inconsistency, the law is void only to the extent of such inconsistency; the other law remains in tact. If an enactment in its entirety were to be found to relate, or not to relate, to any of the matters specified in Article 19(2), the whole of it would be void or no part of it, and there would have arisen no question of its being void only to the extent of inconsistency. Numerous instances can be quoted in which only particular provisions of enactments have been struck down as unconstitutional. In the Act under consideration itself the provisions of Section 4 have been held to be unconstitutional as infringing the freedom of speech and expression; See -- 'Srinivasa Bhat v. State of Madras', AIR, 1951 Mad 70 (H), 'In the matter of the Bharati Press', Am 1951 Pat 12 (SB) (I) and -- 'Chander Deo v. State of Bihar', AIR 1951 Pat 75 (SB) (J). Therefore, the constitutionality of the impugned provisions does not depend on the constitutionality of the other provisions. They would be constitutional only if they are a law relating to any of the matters specified in Article 19(2). 8. In -- 'Romesh Thappar v. State of Madras', AIR 1950 SC 124 (K), Patanjali Shastri, J. (as he then was) on p. 129 expressed the court's opinion as follows : "Unless a law restricting freedom of speech and expression is directed solely against the undermining of the security of the State or the overthrow of it, such law cannot fall within the reservation under Clause (2) of Article 19, although the restrictions which it seeks to impose may have been conceived generally in the interests of public order. It follows that Section 9(1-A) (of the Madras Maintenance of Public Order Act, 1949) which authorises imposition of restriction for the wider purpose of securing public safety or the maintenance of public order falls outside the scope of authorised restrictions under Clause (2) and is therefore void and unconstitutional". The same reasoning would apply in the present case to make Sections 15 and 18 void and unconstitutional. In -- 'Basudeva v. Rex', AIR 1949 All 513 (L), Basudeva was detained under Section 3(1) of the U. P. Prevention of Blackmarketing Act, 1948, and the question arose whether the Act was not ultra vires the State Legislature. It was contended on behalf of Basudeva that the Act was not covered by items 1 and 29 of list II of the Government of India Act because it was not with respect to preventive detention for maintenance of public order or to production, supply and distribution of goods. A Full Bench of this Court held that the Act was ultra vires because the words "for reasons connected with" must mean a real and genuine connection and not a fanciful or highly problematical connection. The decision was upheld by the Federal Court in -- 'Rex v. Basudeva', AIR 1950 FC 67 (M) Patanjali Shastri, J. observed at page 69 : "The connection contemplated must.....be real and proximate, not far fetched or problematical". The words that came in for interpretation there were, "for reasons connected with", whereas the words under interpretation in the instant case are "law relating to". The principle laid down by the Federal Court, however, is applicable in the instant case; the relation must be real and proximate and not far fetched or problematical. The relation, must be reasonable as pointed out by the Supreme Court in -- 'Chintaman Rao v. Madhya Pradesh', AIR 1951 SC 118 (N). The State of Madhya Pradesh enacted Regulation of Manufacture of Biris Act, 64 of 1948, empowering District Magistrates to prohibit manufacture of biris during agricultural season in particular villages. The Act abridged the right conferred by Article 19 CD (g) to practise any profession or to carry on any occupation, trade or business. Article 19(6) except-ed from the operation of Article 19(1)(g) any law imposing "in the interests of the general public" reasonable restrictions on the exercise of the right. The Supreme Court held that the restrictions imposed by the Act could not be said to be "in the interests of general public" because there was no reasonable relation between them and the general public. It may be that certain prohibition of manufacture of biris was in the interests of the general public; still the Act as a whole was held to be not in the interests of general public. Requiring every person to obtain a permit for making or publishing or selling news sheets may in certain cases prevent the undermining of the security etc., but on that ground requiring every person to obtain a permit cannot be said to relate to a matter which undermines the security etc. The mere fact that objectionable as well as harmless news sheets were controlled by Sections 15 and 18 does not mean that they were enacted with the object of preventing the undermining of the security of the State etc. As a matter of fact, the court is not concerned with the object behind an enactment; it is simply concerned with what matters it relates to. The object of an enactment is different from the matters to which it relates. So even if the object behind the impugned Act was to safeguard against the undermining of the security of the State etc., it might relate to matters which cannot be described as matters which undermine the security etc. Whatever might have been the object behind the Act, the matters to which it relates were printing and publishing of newspapers and news sheets and keeping printing presses. It may be that better control of the press was essential for controlling acts which undermine the security of the State but that did not mean that the Act related to such matters. The fact that the legislature could not control objectionable news sheets unless it also controlled harmless ones did not change the nature of the matters to which it related. It might have been absurd to say that Section 15 should have required a permit for the publishing of news sheets which had a tendency to undermine the security etc., of the State (because no permit could possibly be granted for the publication of such news sheets) but the fact remains that the Act dealt with the publication of news sheets regardless of their contents. A law relating to publication of news sheets is not covered by the saving clause. I am, therefore, of the opinion that the impugned provisions of the Act were not a law relating to any matter which under- mines the security of, or tends to overthrow, the State. 9. The effect of the above finding is that the impugned sections become void on 26-1-1950. On 11-6-1950 there was no law, which required a permit for publication of news sheets or which punished keeping for sale or distribution or publication any news sheet published without a permit. It is not known when the news sheets recovered from the applicant's possession were published. If there were published before 26-1-1950, they required a permit, for their publication. If no permit was obtained, they became unauthorised news sheets prior to 26-1-1950. Though Section 15 became void on 26-1-1950, the news sheets remained unauthorised news sheets. The passing of the Constitution made only Section 15 void; it did not have the effect of undoing anything that had been done under it. But as Section 18 also became void along with Section 15, the possession of the unauthorised news sheets was not an offence after 26-1-1950 and the applicant could not be punished. If the news sheets were published after 26-1-1950, then they did not even become unauthorised news sheets and even if Section 18 remained in force, the applicant committed no offence. The result was that the act committed by the applicant on 11-6-1950 was not an offence. 10. Before I come to the question of the effect of the amendment of Article 19, I would deal with the question whether that amendment has the retrospective effect which the learned Advocate-General wants to be given to it. I have found that on 11-6-1950 the applicant did not violate any law in force by keeping the news sheets in his possession. Under Article 20, he cannot be convicted. The bar on his conviction is absolute. There is no way of getting over it. If the impugned provisions could be said to impose "reasonable restrictions" on the exercise of the right conferred by Article 19(1)(a) "in the interests of the security of the State, friendly relations with foreign States, public order, decency, or morality, or in relation to contempt of court, defamation or incitement to an offence," the amendment of the Constitution expressly laid down that they will not be deemed to be void, or even to have become void. In other words, the amendment of the Constitution prevented the operation of Article 13 and retained the provisions as a valid law. Actually the provisions had become void and remained void up to 17-6-1951, but since 18-6-1951 they became valid with retrospective effect. The result is that though they were void between 2S-1-50 and 18-6-1951, whenever the question of their validity arises after 18-6-1951, they will be deemed to have been always valid. The applicant was convicted on 23-2-1951 on which date the provisions were actually void. Therefore, apart from the question of Article 20, the Magistrate could not convict the applicant on 23-2-1951 and the conviction was illegal. The applicant's appeal was dismissed by the Sessions Judge on 11-6-1951; even on that date the provisions were actually void and the conviction could not be maintained by the Sessions Judge. He ought to have set aside the conviction. There is nothing in the language of the amendment of the Constitution to suggest that the conviction illegally recorded by the Magistrate and by the Sessions Judge became valid. The amendment only kept the provisions alive, but did not convert illegal conviction into legal conviction or an innocent act into an offence. The amendment was made in the face of the provisions of Article 20; yet it did not save the operation of Article 20. Therefore, Article 20 remained in full force and must be given effect to. "Law in force" in that Article means "law actually in force and not law deemed to be in force by retrospective operation". In --'Shiv Bahadur Singh v. State of Vindhya Pradesh'. AIR 1953 SC 394 (O), Jagannadha Das, J. stated at page 398 : " 'Law in force' referred to therein must be taken to relate not to a law deemed to be in force and thus brought into force but the law factually in operation at the time or what may be called the then existing law. Otherwise, it is clear that the whole purpose of Article 20 would be completely defeated in its application.....Every such 'ex post facto' law can be made retrospective as it must be, if it is to regulate acts committed before the actual passing of the Act, and it can well be urged that by such retrospective operation it becomes the law in force at the time of the commencement of the Act." That law was laid down before the amendment of the Constitution and it may be said that the Supreme Court did not deal with retrospective operation being giv,en to a provision of the Constitution itself. It may be urged that previously the Constitution did not recognise law "deemed" to be in force and that when under the amendment it recognised law "deemed" to be in force, there has been a change in the circumstances in which the Supreme Court laid down the above law. Though there is considerable force in these arguments, I do not think that language of the amendment warrants the conclusion that the law that is prevented with retrospective effect from being void by the amendment is "law in force" within the meaning of Article 20. There is nothing in the amendment to suggest that Article 20 was not to apply or that a person can be convicted for violating an Act that had actually become void but is now deemed not to have become void. It is a well known principle that no greater retrospective effect should be given to an Act than is warranted by its language. Had the amendment laid down that a person who had violated the Act after 26-1-50 can be convicted on that Act being deemed not to have become void, then, and then only was it possible to convict the applicant. The impugned provisions may be deemed to have always remained in force but that would be for all purposes except that of convicting persons. It is not possible to interpret the words "law in force" in Article 20 to include the law deemed to be in force by a provision of the Constitution itself or to ignore the provisions of Article 20 and to convict a person for an act which was not an offence when it was done. The amendment of the Constitution did not create new offences. The only effect of the retrospective operation given to it was that the laws that had become void did not require to be re-enacted. Unless the amendment was given retrospective effect and thereby laws were prevented from having become void at all, it would have become necessary for the legislatures to re-enact those laws after the amendment of the Constitution. 11. There is really no conflict between the provisions of Article 20 & the amendment of the Constitution & there is no necessity of deciding which provision should prevail over the other. Both the provisions can be given effect to simultaneously; they can be harmonised by saying that Article 20 does not make an enactment invalid but simply prohibits conviction while the amendment makes an enactment valid but does not expressly lay down that a person can be convicted for violation of a law that had actually become void under Article 13 but is deemed under the amendment not to have become void. This matter has come before us in revision and we have to consider it from the point of view of the Magistrate who tried the case. On the date on which he convicted the applicant the impugned provisions had become void and had not been deemed not to have become void. He had, therefore, no option but to acquit him. That was also the situation before the learned Sessions Judge. Even if the Magistrate illegally convicted the applicant, he should have set aside the conviction. What we have to see is whether the order passed by him was legal or not. Had the matter come before us prior to 18-6-51, there would have been no difficulty and we would have set aside the conviction as soon as we found that the impugned, provisions had become void on 26-1-50. The accident that it came before us after 18-6-1951 does not make any difference to the order that we ought to pass. In the absence of there having come into existence a law declaring that the applicant's conviction was valid, I think we are bound to do what the courts below ought to have done, namely to acquit the applicant. Even if the Magistrate had passed the judgment after 18-6-1951, he would have been bound to acquit the applicant; when he passed it before 18-6-1951, he was all the more bound to acquit him. 12. In view of the above finding it may not be necessary to decide whether the impugned provi-sions are covered by the amendment in Article 19(2), but since the matter was argued at length before us, I think it proper to deal with it. It may be said that the restrictions imposed by the impugned provisions are in the interests of the security of the State etc. But the important question is whether they are reasonable. In my opinion, they are not. In the first place Section 15 confers absolute discretion to the District Magistrate to grant or refuse permit to anyone. There is absolutely nothing to guide him in his discretion. Not only are any standards laid down but also one cannot imagine any. It is not possible for us to say that when a person applies to a District Magistrate for a permit to publish a newspaper, he should grant it if certain circumstances exist and should refuse it if certain other circumstances exist. The provisions of Section 15 remind one of the following observation of Clark, J. in Burstyn's case (C) : "The censor is set adrift upon a boundless sea and a myriad of conflicting currents of religious views, with no charts but those provided by the most vocal and powerful orthodoxes" (P 1107). The District Magistrate is in exactly the same position as the censor in 'Burstyn's' case (C). Even when a statute authorises refusal of licence if the authority is of the opinion that the film, is of such a character as to be prejudicial to the best interests of the citizens, it can be struck down, as was done in -- 'Gelling v. State of Texas', (1951) 343 US 980 (P). In -- "Thakur Raghubar Singh v. Court of Wards Aimer", AIR 1953 SC 373 (Q), the Act provided that a landlord habitually infringing tenant's rights would be deemed to be disqualified within the meaning of a regulation and this was held to be not a reasonable restriction, one of the reasons given being that the ground was indefinite. Secondly the granting or refusal of permit is left to the subjective determination of the District Magistrate. That was another reason given in the above case. Then the District Magistrate was not required to give any reasons for his order and no judicial review was provided against it. Howsoever arbitrarily or unreasonably he acted, a person aggrieved by his act had absolutely no remedy. Though Section 15 referred only to permitting persons to publish news sheets, it certainly contemplated permitting some and not permitting others. It certainly did not contemplate that every person should be permitted, (though different condition might be imposed upon different applicants). It was open to the District Magistrate to refuse permit to any applicant. Therefore, there was scope for a provision calling upon the District Magistrate to give reasons for refusing permit to any applicant. Absence of review, judicial or otherwise, of executive discretion is undoubtedly not an exceptional feature of a statute and a restriction may not be said to be unreasonable solely because no provision is made for review. But the absence of a provision for review is certainly a factor to be taken into consideration in deciding whether a restriction is reasonable or not. I do not agree with the learned Advocate-General that the District Magistrate was bound to grant permit to everybody, that whatever discretion he had was only in selecting conditions to be imposed upon the applicants and that the discretion left with District Magistrate was so small that the legislature did not think fit to provide for a review of his order. The Act was permanent and not enacted to meet an emergency. It is immaterial if its title included the words "emergency powers", or if it was repealed in 1951. When it was enacted it was to remain in force for an indefinite period. Section 15 gave vast powers to the District Magistrate to impose any conditions he liked. The restriction imposed under it was of a preventive nature and not punitive. Making it an offence for anyone to say or write something would also be a restriction on his freedom of speech and expression, but there is a difference between such a restriction which is of a punitive nature and a restriction as in the instant case, which is of a preventive nature. If a person in exercise of his right of speech and expression says or writes something which harms others, let him be punished but there is no justification for requiring everybody to obtain a permit in advance for saying or writing anything. The restriction imposed in the instant case is too wide; it is not limited to objectionable news sheets only. As I said above, it might have been meaningless for the legislature to lay down that no person can publish an objectionable news sheet without a permit but that would not make it reasonable to require every person wanting to publish, a news sheet to obtain a permit. In the case of -- 'Near (A)', the Statute was struck down because it did not aim at redress of individual wrong; but was directed also against publication of wholesome matter and its object was not punishment but putting the publisher under an effective censorship. In -- '95 Law Ed 1196', there is an observation to the effect that "as regards freedom from censorship the scope of the constitutional protection is greater than as regards freedom from punishment". See also the observation of Clark, J. in -- 'Eurstyn's case (C)' quoted earlier. In -- 'Lovell's case (B)' it was pointed out that the impugned Act was not limited to literature that was obscene or offensive to public morals. In ' Chintaman Rao's case (N)', the Act was held to be drastic in scope and it was observed that if the restrictions are too wide and include rea- sonable and unreasonable restrictions or if there is the possibility of its being applied for non-sanctioned purposes, it is void. The Supreme Court on 11-1-54 declared the provision of Clause 4(3) of the U. P. Coal Control Order void, as composing an unreasonable restriction upon the freedom of trade on similar grounds. The Act held to be unconstitutional in -- 'Saia's case (E)' did not lay down any standards to guide the discretion of the chief of the police and was not narrowed down to regulate hours or places of use of amplifying devices or the decibels to which they must be adjusted. Section 15(2)(b) of Criminal Law Amendment Act (No. 14 of 1908) was declared by the Supreme Court to be unconstitutional because there was no provision for testing, in factual legal respects, the grounds of imposition of the restriction and it was a permanent Act; see the -- 'State of Madras v. V. G. Rao', AIR 1952 SC 196 (R). One or two of the reasons given above may not be conclusive but when all are taken into consideration there should be no hesitation in saying that the restrictions imposed by the impugned provisions were unreasonable. Therefore, the amendment in Article 19(2) did not help and did not save the Act from becoming void under Article 13. 13. The provisions also contravened Article 14. They divided the public into two classes, one of persons who could publish news sheets without being liable to be punished and the other or others who could riot publish news sheets without such liability. Section 15 itself brought into existence these two classes by directing District Magistrates to permit some persons to publish news sheets. There was nothing to guide the District Magis-rates in putting persons in one class or the other. He could put any person in either class according to his caprice. The consequence was that some persons became liable to be punished for doing an act for which others were not liable. There was thus a denial of the equal protection of laws brought into existence by Section 15 itself. It was conceded by the learned Advocate-General that a District Magistrate was not obliged to permit every one to publish a news sheet, but contended that mere refusal or mere contingency of refusal to permit a person did not amount to an inequality. He argued that no discretion vested in the District Magistrate to discriminate between, one person and another or between one news sheet and another news sheet. The language of Section 15 does not support this contention. It allowed a District Magistrate to discriminate between two persons similarly circumstanced or between two news sheets having the same contents and to permit one person to publish news sheets and not the other or to permit the publication of one pews sheet and not the other. There was absolutely nothing in Section 15 to prevent his doing so. It cannot be said that the discrimination resulted from an act of the District Magistrate; if discrimination resulted, it resulted not because of any fault on the part of the District Magistrate out because the section itself permitted it. Had standards been laid down for his guidance and had he been required to grant a permit in certain circumstances or to refuse it in certain other circumstances, the legislature would have done all within its power to prevent discrimination and if still discrimination resulted, it would have been attributed not to the legislation but to an erroneous, act of the District Magistrate. In -- 'Yick Wo v. Hopkins', (1885) 30 Law Ed 220 (S), Matthews, J. observed with reference to ordinances vesting in a board of supervisors a discretion of granting or withdrawing their assent to the use of wooden buildings : "They seem intended to confer, and actually do confer, not a discretion to be exercised upon a consideration of the circumstances of each case, but a naked and arbitrary power to give or with-hold consent, not only as to places but as to persons. So that, if an applicant for such, consent, being in every way a competent and qualified person, and haying complied with, every reasonable condition demanded by any public interest, should, failing to obtain the requisite consent of the supervisors to the prosecution of his business, apply for redress by the judicial process of mandamus to require the supervisors to consider and act upon his case, it would be a sufficient answer for them to say that the law had conferred upon them authority to withhold their 'assent, without reason and without responsibility. The power given to them is not confided to their discretion in the legal sense of that term, but is granted to their mere will. It is purely arbitrary, and acknowledges neither guidance nor restraint..... x x x x It docs not prescribe a rule and conditions for the regulation of the use of property for laundry purposes, to which all similarly situated may conform. It allows without restriction the use for such purposes of buildings of brick or stone; but, as to wooden buildings, constituting nearly all those in previous use, it divides the owners or occupiers into two classes, not having respect to their personal character and qualifications for the business, nor the situation and nature and adaptation of the buildings them selves, but merely by an arbitrary line, on one side of which are those who are permitted to pursue their industry by the mere will and con sent of the supervisors, and on the other those from whom that consent is withheld, at their mere will and pleasure." (page 225 of the Lawyers' Edition), 14. In -- 'the State of West Bengal v. Anwar Ali', AIR 1952 SC 75 (T), it was stated that it is not necessary that the legislature should have an intention to deny the equal protection of the law, that if this denial results from, or arises on the express terms of the statute itself, it is void and that if a selection is left to absolute and unfettered discretion of the executive government with nothing to guide or control its action, it is arbitrary selection. 'Snowden v. Hughes', (1943) 88 Law Ed 497 (U) and -- 'Queenside Hills Realty Co. v. Saxl', (1945) 328 U S 80 (V) relied upon by the learned Advocate-General are distinguishable. In the former case, it was observed that "the unlawful administration by State officers of a State statute, fair on its face, resulting in its unequal application to those who are entitled to be treated alike, is not a denial of equal protection, unless there is shown to be present in it an element Of intention or purposeful discrimination." Here the provision itself was not fair on its face and if discrimination resulted it was not because of unlawful administration by the District Magistrate. All that was decided in the latter case is that "lack of equal protection is found in the actual existence of an invidious discrimination, not in the mere possibility that there will be like or similar cases which will be treated more leniently." The discrimination made by the impugned provisions actually existed when they were enacted. The amendment of the Constitution has no effect on a statute if it infringed the equal protection clause. 15. I hold that Sections 15 and 18 of the Act became void on 26-1-1950 as infringing provisions of Articles 19(1)(a) and 14 and not being saved by the provisions in Article 19(2), either before or after the amendment, that the applicant committed no offence by having in his possession the news sheets on 11-6-1950 and that, even if the impugned provisions were valid by virtue of the amendment to Article 19, the applicant could not be convicted for doing the act before the Article was amended. He ought therefore to be acquitted. Beg, J. 16. I agree. BY THE COURT 17. The application is allowed, the applicant's conviction and sentence are set aside, and he is acquitted. (Certified under Article 132(1) that the case involved a substantial question of law as to the interpretation of the constitution.)

Author: Desai

Rama Shanker Tewari vs State on 10 February, 1954

Allahabad High Court

JUDGMENT G.N. Srinivasan, Member (J) 1. This is an appeal filed by the appellant against the decision of the Collector of Customs, New Kandla, made in Order-in-Original No.KCH/COLLR/6/91 dated 1.1.1991 whereunder he had enhanced the assessable value from US$k 900 PMT to Rs. 1000/- PMT. 2. The facts of the case are that the appellant imported 180.925 MT of HDPE Tape Grade HS 7023 for which they filed bills of entry dated 22.6.1988. The said imports were made pursuant to the Sales Indent dated 9.11.1987 according to which price was agreed to at US$ 900 PMT for a quantity of 200 MT to be supplied within the first quarter of 1988. The goods could not be shipped before 31.3.1988. After correspondence the goods got shipped on 12.4.1988 from Antwerp (Belgium). Certain investigations were conducted by DRI resulting in issuance of a show cause notice dated 11.4.1990. It was alleged in the notice that value would be at not less than US$ 1300 PMT CIF and in view of the undervaluation by the appellant such undervaluation was estimated to Rs. 9,48,491/- and the attempted evasion of duty works out to Rs. 10,96,484/-. Accordingly it was alleged that the goods were liable to be confiscated under Section 111(m) of the Act and the excess goods to the extent of Rs. 9,48,491/- were liable to be confiscated under Section 111(d) of the Act. The appellant replied by its letter dated 9.10.1990 denying he liability. The Collector on the basis of the investigations, viz. statement of the partner of the firm who accepted that the price of HDPE of Belgium origin was at US$ 1000 PMT. Therefore the value was revised and also the attempted evasion was fixed at Rs. 2,85,870/- as far as revised, ie. mis-declaration valuation it was fixed at Rs. 2,47,441/-. He therefore imposed a penalty of Rs. 1,00,000/-. Hence the present appeal. 3. Shri S.D. Nankani, learned counsel for the appellant argued that the enhancement of the value from US$ 900 to US$ 1000 holding that the same was liable to confiscation under Section 111(d), imposing personal penalty of Rs. 1,00,000/- is absolutely wrong in law. He stated that eh department has enhanced t he value of the HDPE not on the basis of contemporaneous import but only on the basis of deposition of Nirmal Surekha. He argued t hat Surekha's statement should be taken more as an escape, via. only out of (SIC) desperation and to have peace. He also invited our attention to the reasoning of the Collector, via. non-mention of the no. and dat e of the contract in the import documents as well as the statement of Surekha. As far as the non-mention of the number is concerned, t he learned counsel argues there is no specific finding given by the Collector that the said import was not shipped pursuant to the Sale Indent dated 09.11.87. The doubt cannot substitute the evidence. As far as the statement of Nirmal Surekha regarding friendship of the importers is concerned, they were never being suppliers were not related to each other and the price was for sole consideration,. It was also emphasized that the appellant or the sellers were have neither interest in the business of each other and the transaction was at arms length. Therefore, the enhancement of value to US $ 1000 is wrong. It was stated that the Appellant has acted bonafidely. As against this learned DR, K.M. Mondal adopts the reasoning int he impugned order. 4. We have considered the rival submissions. In the Show cause notice at page 57 of the paper book, it is stated that the goods in question claimed to have been shipped as per the sale order no. NIL dated 09.11.87 at unit price of US $ 900 per MT CIF Kandla. None of the import documents shows the details of the said contract. We have checked up the invoice. It mentions numbers SST/ABB/BB/NS/020 for a quantity of goods for 63 MT. Another invoice bearing no. SST/ABB/BB/NS/020 for 62.8 MT and lastly the invoice bearing no. NS 022 for 63 MT. In these documents thee is no reference to the sales indent signed on 9.11.1987. It has to be stated when we look into the sales indent, it does not mention any number. The quantity is mentioned as 200 MT whereas the three invoices referred to above only show total as 190 MT and not 200 MT. The effect of sales indent is once it is confirmed there is a binding contract. No doubt it was confirmed by the appellant letter dated 25.11.1988 but the shipment did not take place on first quarter of 1988. No doubt, by its communication dated 21.3.1988 there is a message which reads as under:- "Att. Mr. Sureka Pls refer our contract of 9.11.87 for HDPE. Inspite our best efforts, we r not successful in gtg any supplies from our regular suppliers in Europe. There is no matrl at all in S'pore, We hv t' fore reluctantly to enforce force majeure. Clause to treat this contract as cancelled. Rgds/Chandresh" It states that they have been located about 180 tons of Union Carbide material which they wish to supply against the pending contract and also these supplies were being made just to honour their commitments. No doubt if we read the sales indent as confirmed by the respondent, it show that the shipment has to take place by 31st March, i.e. first quarter of 1988 but the communication extracted above shows that it is against the pending contract which is not there. If the contract is not there, where is the question of honouring their commitments. We are therefore of the view that this communication cannot be of much help in the absence of any evidence produced by the respondent regarding pending contract. 5. The Collector in the impugned order has held that he is increasing the valuation to US$ 1000 PMT only on the basis of statement of the importer. The importer has stated as follows:- "So considering the goods were supplied to us against our past contract as a special case I plead that lenient view may be given and the goods be permitted to be finally assessed by loading a sum of US$ 100 (One hundred only). As this item is not popular in India, there is no imports through M/s. Union Carbide (I) Ltd., and hence I am not in a position to furnish any evidence of price as required by you. "Since the goods have been imported immediately after the expiry of contract with our suppliers and also that we have paid only the contracted amount that is at US$ 900 per MT, to the suppliers, we have no objection in enhancing the value for customs duty purpose @ US$ 950/- per MT provided no action is taken against us in which case we do not want any show cause notice or personal hearing. We are prepared to pay the differential duty amount @ 950/- US$ per MT CIF." The person when he makes any statement knows the value of his statement. The appellant does not produce any retraction. The appellant knows or is expected to know the effect of the statement. When he pleads that a lenient view it does not mean he is doing it for shear desperation or buying peace. If the item was not popular in India it passes one's comprehension as to why such an item was imported at all. We therefore feel that basing the statement of the importer, if the valuation has been increased we do not think it is anything wrong in law. We are aware of the fact that the finding of the Collector, viz. show cause notice has not quoted any import of identical goods to fix the price of the goods in the international trade at the relevant time, but however we have to hold that the statement of the importer really clinches the issue. We are therefore of the view that the appeal does not have any merit. 6. Appeal dismissed. ORDER Gowri Shankar, Member (T) 1. I regret my inability to agree. The basis for the enhancement of the value in the notice issued to the importer and the order of the Collector is only the statement dated 28/10/1988 of Sureka. A part of the statement has been reproduced in the preceding order I am, however, of the view, for better appreciation, the third question put to Sureka by the officers recording his statement, and his response which has been reproduced, should both be seen: "Q3: Since the goods were not imported by you till the date of amendment of IGM, do you agree that you negotiated price with M/s. Seven Star Trading can not be legally applicable to goods in question? A: I agree that it is not applicable both the said goods were allotted to me on 12/04/1988 vide the certificate of original invoices which may be seen at pages 69 to 72 and 81 to 84 and 93 to 96 in the package list dated 12/04/1988. The respective B/Ls and container numbers are shown. As such I request we will be given the benefit for valuation purposes. These goods were allotted and imported by us as on 12/047/1988, the date of shipment. Further I amy bring to your kind notice, in present case, the goods were to be supplied to him by M/s. Seven Star Trading Co. Pvt. Ltd., Singapore, as per our communication by first end of the quarter 88. That is 31/03/1988. I invite your attention to a telex copy dated 11/04/1988 in page 59 of the submissions file by Shri Chandresh Maheshwari. The material have been allotted to supply by us against in pending contract with a financial loss in the transaction and were agreeing to supply just to human consideration. They accepted as a good businessman to make. Therefore, in further business. So considering the goods were supplied to us against our past contract as a special case, I plead that lenient view may be given and the goods may be permitted to be finally assessed by adding a sum of US $ 100/- (one hundred only) as this item is not popular in India. There is no imports except M/s. Union Carbide (I) Ltd. and hence I am not in a position to furnish any evidence of price as required by you." 2. If viewed in the context it was made, that portion of the statement, which has been relied upon as an admission, cannot be considered to be an admission. The question put to Sureka was whether the price negotiated with the supplier can legally applied to the goods or not in view of the amendment of the manifest. Sureka agree that it amy not legally apply, but request that in the context of the fact that the goods were allotted to him on 12/04/1988, benefit of doubt may be given. Only later he had asked that a lenient view may be taken and the goods enhanced by US $ 100/-. There is, therefore no admission by Sureka, that he goods were under valued. On the contrary, in the first portion of the statement he states that the value of the goods ought to have been the price what declared. 3. It would follow therefore that there was in fact no admission by Sureka that the goods have been under valued. 4. The other question is whether value can be increased only on the basis of a statement of the importer. In other words assuming that Sureka stated that price of the goods was US $ 1000/-, whether the department would be justified in fixing the value at that price. The answer clearly is int he negative. There are numerous decisions of the Tribunal to say that prices for value of goods under Section 4 of the Act, is the price at which the goods are actually imported; it thus been held that the price contained in any offer or quotation cannot be applied, inf no import has taken place against that offer (see for example SK Electronics v. CC 1988 (98) ELT 668) . In other words there must be evidence of import of the goods at the price which it is proposed to be adopted. 5. If the statement of the importer itself is accepted as the basis for value it would have to be accepted not only in those cases where it is only advantageous to the department but in other cases too. this would mean in effect that it is the importer's declaration alone that would determine the value.If the importer states, that he has received the goods without any payment, the goods would have to be valued at nil. It was therefore incorrect to fix the price on the basis of Sureka' statement alone. 6. How, then, is the price to be fixed in this case. The contract was executed in November, 1987 and the goods shipped in April, 1989. The goods could not be shipped before the contract expired on 31/03/1988 apparently because the supplier could not procure the goods. By its telex dated 21/03/19898 they had, invoking the force majeure communicate cancellation of the contract. Correspondence between the import and the supplier having produced. It shows that on the protestation of the appellant, the supplier offered to look for some material of better specification than it ordered for. Its telex dated 31/03/1988, offered to supply 108 MT of Union Carbide material, which was ultimately what supplied. The correspondence, however, stops at this stage. There is nothing to show that this offer was accepted the reference in the to supply in terms of pending contract is obviously misleading. By this time the contract has been cancelled and was therefore no longer existing. Therefore, it might be concluded that the supply was not made in terms of the contract and the Collector was correct in not accepting the contract value. Since the value of contemporaneously imported identical or similar goods was not known, the price could not be determined under Section 4 and it to be determined in terms of the Valuation Rules. The Rules, 5, 6 and 7 will not apply since it appears that there is no import of identical or similar goods or the price therefore had to be determined under Rule 8. There is some reason to conclude that the price of the goods of Belgian origin in April, 1988 was US $ 1100/- This is what Sureka has accepted in his statement. Therefore the value accepted by the Collector of US $ 1100/-. (SIC) in accordance with the provisions of Rule 8. I therefore see no reason to interfere in this regard. 7. There is, however, nothing to show that the importer has deliberately undervalued the goods. While, strictly speaking the goods could not be said to have been shipped in terms of the contract, it appears from the last fax of the supplier that the shipment was made in pursuance of the demand made by the appellant to supply the goods. There is nothing to show that the appellant knew or had reason to believe, that this price was wrong or incorrect, or that he attempted to evade duty. On the facts of this case, therefore no penalty was imposable. The following question is therefore proposed for reference to a third member: "Whether the facts and circumstances of the case justify imposition of penalty under Section 112(a) of the Act on the importer." ORDER J.H. Joglekar, Member (T) 1. On the reference made to me, I have heard Shri Naresh Thakkar Advocate for the appellants and Shri A.K. Jain for the Revenue. 2. The facts are aptly summaried in paragraph 2 of the findings of the Member (Judicial) and need not be repeated. 3. It is not contested that there were no contemporaneous imports of the same goods at about the time of importation. In his statement recorded earlier in time that was referred to by both members, Shri Nirmal Surekha on 10.10.88 said the following- "I have been asked to state that whether the value shown in the invoice was the real value prevailing at the time and place of importation as provided under Section 14 of the Customs Act, 1962. I have to state it is true that the invoice covered by said shipment showed value as prevailing in November 1987 and as per the sale contract. The goods were to be shipped before 31st March 1988 whereas the subject goods were shipped after expiry of the scheduled period of shipment namely 12th April 1988. As far as I understand the value as prevailing in April 1988 for such type of goods was US $ 1000. Since the goods have been imported immediately after the expiry of contract with our suppliers and also then we have paid only the contracted amount that is @ US $ 900/- per M.T. to the suppliers we have no objection in enhancing the value for customs duty purpose @ US $ 950/- per MT. Provided no action is taken against us in which case we do no want any show cause notice or personal hearing. We are prepared to pay the differential duty amount @ 950@/- US $ per M.T. C.I.F. 4. In the later statement on which reliance has been placed by Member (Judicial). Shri G.N. Srinivasan, also, the deponent stated that the contract amount was US$ 900 but for the sake of amity, he as accepting the loading of the prices but that did not amount to admission of under valuation of the goods imported. I therefore agree with the finding of the Member (Technical) in paragraph-3 of his order that the statement could not be taken to be an admission of undervaluation. 5. When the department cannot rely the statement, the only course open was of determination under Rule 8. Since it is the best judgment, method, the fides of the importers do not come into question. Even otherwise, Surekha's statement are not sufficient to establish suppression of price. 6. I therefore agree with the Ld. Member (Technical) that in the facts and circumstances of the case there were no grounds for imposition of penalty. 7. The Reference is answered in these terms. The papers may now be placed before the original Bench for appropriate orders. (Pronounced in Court). ORDER 1. In the light of the answer given by the third member on the point of difference, the appeal is allowed and the order of the Collector imposing penalty on the appellant is set aside.

Paper Suppliers vs Commissioner Of Customs, Kandla on 10 December, 1999

Customs, Excise and Gold Tribunal - Mumbai

[Section 4] [Complete Act]

Central Government Act

Court No. - 28 Case :- CRIMINAL REVISION No. - 491 of 2008 Petitioner :- Ram Pratap Singh Respondent :- State Of U.P. Petitioner Counsel :- Raj endra Pratap Singh,Ajay Pandey Respondent Counsel :- Govt. Advocate Hon'ble Alok K. Singh,J. Steps filed today are taken on record. Office to proceed. Order Date :- 18.1.2010 Shaakir/

Ram Pratap Singh vs State Of U.P. on 18 January, 2010

Allahabad High Court

In the High Court of Jharkhand at Ranchi W.P.(S) No.1012 of 2007 Basant Kumar Banerjee........... .........Petitioner VERSUS State of Jharkhand through the Chief Secretary and others...........Respondents CORAM: HON'BLE MR. JUSTICE R.R.PRASAD For the Petitioner : M/s. Jai Prakash Sahu and S.K.Singh For the State : J.C. to S.C.II Reserved on.19.1.2009 Pronounced on 2.2.2009 5. 2.2.2009 The petitioner was appointed as Tahsil Karmachari on 7.1.1957 at Lohardaga Anchal (III) at Gamhariya within the district of Ranchi. In course of employment, he was transferred from Lohardaga Anchal to Tamar Circle, Ranchi. However, after rendering services for a period of 11 years 26 days, the petitioner on account of ill health asked for pre-matured retirement and for payment of invalid retirement benefits but the pensionary benefits were not given and, therefore, the petitioner approached this Court, vide C.W.J.C.No.1551 of 2001 seeking direction for payment of pensionary benefits. The said writ application was disposed of by directing the respondents to consider the case of the petitioner for payment of retiral dues. However, the claim of the petitioner for payment of pension was rejected, vide order dated 26.6.2001. Being aggrieved with that order, another writ application being W.P.(S) No.1609 of 2004 was filed by the petitioner wherein a counter affidavit was filed taking the stand that minimum qualifying period of service had not been completed by the petitioner, which stand was found to be contrary to the factual position that the petitioner had put in service for more than 11 years whereas under Rule 86, the minimum qualifying period for getting the pension is 10 tears. Under that situation and taking into 2 consideration the facts that the Government in one of its communication dated 22.10.2002 had asked the Deputy Commissioner, Ranchi to consider the case of he petitioner for payment of invalid pension in terms of Bihar Pension Rules 116 to 122. The impugned order passed on 26.6.2001 was quashed and the respondents were directed to consider the claim of the petitioner for payment of pension in accordance with Bihar Pension Rules 116-120 read with Rule 107 or any other relevant rule and pass appropriate order. On consideration of the case of the petitioner, the claim of the petitioner for payment of invalid pension was again rejected, vide its order as contained in memo no.717(ii)/stha dated 21.7.2006 (Annexure 7) holding therein that the petitioner had resigned from the service on 31.1.1968 and had never claimed retirement on medical ground in the year 1968 and as such his case could not be put before the Medical Board and, therefore, the petitioner is not entitled to invalid pension. Having heard learned counsel appearing for the parties and taking into consideration the averment made in the writ application and also counter affidavit, the grounds on which claim of the petitioner has been rejected never appear to be tenable. It does appear that the petitioner, vide its application dated 31.1.1968 (Annexure 1) had informed to the Circle Officer, Tamar that he on account of having fracture and also on account of having Fileria is not medically as well as mentally fit to discharge his duties and as such, he may be granted pre-matured retirement and be paid retiral benefit. On the said application there appears to be an endorsement of receiving the application by one Yugal Kishore Deb. It further appears that the copy of that application had also been sent to the office of Deputy Commissioner, Ranchi. Such averments made in para 8 of the writ application has not been denied in 3 specific terms rather it has simply been stated that the statement made in para 8 of the writ application is denied. Still it has been stated in the impugned order that the petitioner had not made any application, presumably for the reason that the petitioner in other application submitted subsequently had stated that he has resigned from the service and on that account, it has been held that the petitioner on tendering resignation is not entitled to pensionary benefit, but the respondent while rejecting the claim completely overlooked the prayer made in the application filed in the year 1968, when there has been endorsement of receiving the application. Thus, factually it appears to be incorrect on the part of the respondents to say that no such application for payment of invalid pension was filed. Having found that the application had been filed for invalid pension, it was incumbent upon the respondents to get Medical Board constituted in terms of Rule 116 read with Rule 128 of the Bihar Pension Rules for examination of the medical condition of the petitioner but that never seems to have been constituted and hence, on account of non-examination by the Board, the petitioner now cannot be denied the benefit of invalid pension, once he has been found to have completed more than 11 years of the service. Accordingly, the impugned order dated 21.7.2006 as contained in Annexure 7 is hereby quashed. Consequently, Deputy Commissioner, Ranchi respondent no.3 is directed to take decision in the matter of payment of invalid pension within a period of two months from the date of receipt/production of a copy of this order. In the result, this writ application is allowed. ( R.R.Prasad, J.) ND/

Basant Kumar Banerjee vs State Of Jharkhand &Ors on 2 February, 2009

Jharkhand High Court

ORDER J.H. Joglekar, Member (T) 1. On hearing both sides, we find that an inadvertent typographical error has crept into our order NO. C-II/1085-92/WZB/2000 dated 7.4.2000. We therefore direct that in paragraph 4 of the said order for the words and figures "sub-heading 2502"; the following shall be read, namely "sub-heading 2505". (Dictated in Court)

M/S Hindustan Organic Chemicals ... vs Commissioner Of Central Excise, ... on 16 July, 2001

Customs, Excise and Gold Tribunal - Mumbai

C.W.P No.1925 of 2004 Didar Singh vs The Punjab State Electricity Board & another Present : Mr.Amit Chopra, Advocate for the petitioner. Mr.Sukhbir Singh, Advocate for the respondents. *** For orders, see CWP No.13466 of 1999, Jit Singh and another vs The Punjab State Electricity Board & another. ( AJAY TEWARI ) October 24 , 2008. JUDGE `kk'

Present : Mr.Amit Chopra vs Unknown on 24 October, 2008

Punjab-Haryana High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C) No. 21421 of 2007(A) 1. A.K.RAJAGOPALAN, S/O. LATE ... Petitioner Vs 1. VIJAYA BANK, ... Respondent 2. THE AUTHORISED OFFICER, For Petitioner :SRI.DEVAN RAMACHANDRAN For Respondent :SRI.K.ANAND (A.201) The Hon'ble MR. Justice ANTONY DOMINIC Dated :27/02/2008 O R D E R ANTONY DOMINIC, J. = =W.P.(C)=No.=21421 = =2007 = = = = = = = =OF = =A = = = = = = = = = = = = = = = = Dated this the 27th February, 2008 J U D G M E N T In this writ petition challenging the proceedings initiated by the bank under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, it is seen that the property is scheduled to be sold on 4.3.2008 and Ext. P9 is the notice published by the bank. 2. At this stage all that the petitioner seeks is that the bank may intimate him the minimum amount that is required for settling the liability of the petitioner. It being the last endeavour of the petitioner to save his property from a distress sale, I feel, the request needs to be considered. 3. Therefore, the writ petition is disposed of directing the 1st respondent to intimate the petitioner the minimum amount that is required to be paid off to settle his liability and save the property that is proposed to be sold on 4.3.2008. This the 1st respondent  W.P.(C) No. 21421 OF 2007 -2- shall do before 2.3.2008. 4. The petitioner may approach the 1st respondent with an appropriate representation in this behalf and on receipt thereof, the 1st respondent shall give the intimation to the petitioner as directed above. Writ petition is disposed of as above. ANTONY DOMINIC JUDGE jan/-

A.K.Rajagopalan vs Vijaya Bank on 27 February, 2008

Kerala High Court

Court No. - 4 Case :- MATTERS UNDER ARTICLE 227 No. - 380 of 2010 Petitioner :- Lalta Prasad Respondent :- Civil Judge J.D. Jaunpur And Others Petitioner Counsel :- Ranjeet Kumar Mishra Hon'ble Krishna Murari,J. Heard learned counsel for the petitioner. The only relief claimed in this petition is a mandamus to command the court below to decide Suit No.266 of 2006. It is settled that every court is entitled to maintain its diary, which is not to be lightly interfered with by the Superior Court. Equally settled proposition is that normally no mandamus should be issued directing the subordinate court to proceed in a particular manner or in a time bound frame, unless it is demonstrated that there is total failure on the part of the said court to undertake the proceeding. In the case in hand, there is nothing on record to show that the court below is not proceeding in accordance with the procedure prescribed by the code, nor any such reason has been spelt out, which may warrant expeditious disposal of the case filed by the petitioner over and above other cases, which may be pending before the court concerned. In view of above, the relief prayed for is not liable to be allowed. The writ petition, accordingly, fails and stands dismissed. Order Date :- 6.8.2010 pks

Lalta Prasad vs Civil Judge J.D. Jaunpur And ... on 6 August, 2010

Allahabad High Court

JUDGMENT V. Ramaswami, C.J. 1. We are satisfied that the following question of law does arise out of the order of the Tribunal: "Whether, on the facts and in the circumstances of the case, the profit of Rs. 8,54,141 on the sale of land made by the assessee was assessable as business profits or as capital gains ?" 2. Accordingly, we direct the Tribunal to draw up a statement of the case and refer the aforesaid question of law to this court for its opinion.

Author: V Ramaswami

Bari Doab Bank Ltd. vs Commissioner Of Income-Tax on 29 August, 1988

Punjab-Haryana High Court

JUDGMENT 1. This is an appeal from an order passed by Judge Sl anbhag of the bombay City Court on the 30th August 1971 granting an interlocutory injunction restraining the defendant. Corporation from demolishing a room of which the plaintiff is a tenant in certain premises at Vhandup in Bombay. The Municipal authorities have served a notice dated 27th November 1969 on the landlord of the said premises under Section 351 read with Section 352-A of the Bombay Municipal Corporation Act. The plaintiff's contention in the prpesent suit is twofold. First, that hem as a tenant, is entitled to be served with a notice under the said sections. That contention is to be found in paragraph 2 of the plaint. Secondaly, it is submitted in paragraph 3 of the plaint that tenancy right being an interest the Bombay Rent Act within the meaning of Article 19(1)(f) of the Constitution, the plaintiff cannot be deprived of the same without due process of law and the relevant provisions of the Bomaby Municipal Corporation Act are ultiravires the Constitution in so far as there is no provision for giving notice to the tenants. 2. As far as the first contention is concerned, there is no substance in the same for the terms of Section 351 are clear and unambiguous and provide for notice under that section only having to be givne to the person who is carrying on the unauthorised construction wrok in question, or who is the owner of the building or the work in question. Section 352-A is only a provision of an emergency nature consequential on Section 351 and has no independent application. A notice under Section 351 read with Section 352-A is therefore, not required to be given to tenant unless, in a given case, it is the tenant who is carrying out the unauthorised construction of work. The language of section 351 may be compared with the language of section 488, proviso (b), which requires that giving of a notice to the occupier when. Pursuant to the notice under section 351, the actual work of demolitation is to be taken in hand by the corporation, but that is not the stage with which I am concerned in the present case. This view which I have taken on a plain reading of the provisions of section 351 is suported by an unreported decision of K.K. Desai, J. dated 10th March 1971' in A.O. No. 337 of 1969. though in the said decision the learned Judge has not, in terms, referred to the language of that sectioin. As against that decision, the learned advocate for the respondents sought to rely on two unreported decisions of Bal, J., one dated 25th June 1969 in A.O. No. 252 of 1965 in A.O. No. 377 of 1968, but I am afraid, those decisions do not lay down that a notice is required to be given under section 351 to a tenant who is not himself carrying out the unauthorised work. I fail to see how those decisions can have any application to the question which I am now considering. I have, therefore, come to the conclusion that the plaintiff does not have even a prima facie case on this point to entitle him to the enterlocutory relief at the hands of the court. 3. As far as the second contention is concerned, it has now been held by the supreme court in the case of Bombay Municipal corporation V. Pancham. , that a tenant has, both under the Transfer of property Act as well as under Section 12 of the Bombay Rents. hotel and Lodging House Rates (control) Sct, 1947 and intererst in the demised premises which squarely falls within the expression 'property' occurring in sub-clause (f) on clause (1) of Article 19 of the Constitution. Though the said case did not relate to the provisions of section 351 of the Bombay Municipal Corporation Act, those observations would be equally applicable to the question that has been raised in paragraph 3 of the plaint in the present case viz., whether section 351 of the Bombay Municipal Corporation Act is ultra vires Article 19(1)(f) of the Constitution by reason of the fact that it makes no provisions for the giving of notice to a tenant of the premises in question. Under the circumstances, having regard to the decision of the Supreme Court in the Bombay Municipal Corporation's case, and having regard to the fact that the plaintiff claims to be a tenant of the suit premises, I must hold that the plaintiff has certainly a prima facie case in regard to his challenge to the vires of Section 351 of the Bombay Municipal Corporation 351 of the Bombay Municipal Corporation Act. That being the position, the plaintiff is entitled to the injuction sought in prayer (a) of the motion. I, therefore, confirm the order made by the court below and dismiss this appeal with costs. 4. Appeal dismissed.

Municipal Corporation Of Greater ... vs Bhagwan Sakhram Salaskar on 2 March, 1973

Bombay High Court

Gujarat High Court Case Information System Print MCA/1411/2007 2/ 2 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD MISC.CIVIL APPLICATION - FOR RESTORATION No. 1411 of 2007 In SECOND APPEAL No. 53 of 1990 With SECOND APPEAL No. 53 of 1990 ========================================================= DHANGADHRA CHEMICALS WORKS LTD. - Applicant(s) Versus THE STATE OF GUJARAT THRO'SECRETARY, - Opponent(s) ========================================================= Appearance : MR AS SHAH for NANAVATI ASSOCIATES for Applicant(s) : 1, None for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE C.K.BUCH Date : 31/07/2008 COMMON ORAL ORDER Mr. A.S. Shah, learned counsel appearing for Nanavati Associates submits that his office has received instructions not to press this application for restoration and also to withdraw the Second Appeal. According to Mr. Shah, instructions received are oral and normally such instructions should be in writing and that too, by a responsible officer of the company. Office of Nanavati Associates is hopeful to get such written instructions in near future. Therefore, on the strength of the oral instructions received, Mr. Shah is permitted to withdraw this application for restoration as well as Second Appeal with liberty to approach the Court in case of extreme difficulty by putting a copy of the letter expressing dissenting opinion of the company so that appropriate orders in the interest of justice can be passed in that fact situation. As this application for restoration and Second Appeal are not pressed, the same are ordered to be disposed of as withdrawn. [C.K. BUCH, J.] pirzada/-

Author: C.K.Buch,&Nbsp;

Dhangadhra vs Unknown on 31 July, 2008

Gujarat High Court

IN THE HEGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE ST": DAY OF OCTOBER 2010 BEFORE THE HON'BLE Dr. JUSTICE K. B::AKTHAvAfr$AI;£&V1-«.f: f r.- A REGULAR FIRST APPEAL NO. 1499/2009 '-[I . BETWEEN: V A A A Sri.G.Vijaya Kumar, S / olate Mfiovindaswamy, Aged about 54 years, R/a.N0.52, HAL 2991 'A' Stage,» _ Indiranagar, ' ._ V V ~ Bangalore. ' 'A _e - ';..,APPEI,.LAN'I' {By Sri.Santhosh Kun1éi1*., for M/s.Law :;:n1j;-3-, 'A;1x":-5.) ~ 1. Smt.C.I.ParVathi, ' " . W/ o.1ate G.Ba_iakrishna, " Aged abnut 39 "years; A' . K11m".vB.Ki--,Deepa, """ " I D ,/ (Hate _G;Ba.EVai{rishna, 'A.géde_abn_1V.'1t¢V2O Ayeaxjs, . _,,.,__,,R--1 <3lO2.__E'1O1A'e rv/ei§IO\.'*-§:;O:2, NanjundéippaA Layout, 3 » ~ ..I\Eei1rfu Road, i. Banga}.e;e--580 O84. ' -- . v _OStiV.VS;N'e1taraja, "S/c}:.1ate M.Govindaswamy, .. 'Aged about 51 years. No.52, HAL 2"" A Stage. Indiranagar, _ Bangalore. ' 4. Smt.G.Kupparnmal. W/o.C.R.lyavoo Naidu, Since dead, by her L.Rs. 4(a). C.R.IVayoo Naidu, H/o.Late Gliupparnrnal, Aged about 66 years, 4(1)}. C.I.Loginathan, S/o.C.R.Ivay0o Naidu, Aged about 36 years. 4((:). C.I.Anantha Krishna, _ % -_ S/o.C.R.Ivayoo Naidu, ' ; Aged about 33 years, V élld}. W/o.Naga1faj," it . Aged about__3?:_ye_ars; ' _ &_ * R-4(a) to (d) are 1*'/a. ' C' " Nehru Road, dd _ C _ . . Near Priyadarshini School, S,i;.'fhoma1s Town Post... A Kammaiiahalli, , """" " B-angajior¢--5so,os4~.. _ ...RESPONDENTS filed under Section 96 of CPC against the Judgment &--.VADe*C'ree dt.5.6.2009 passed in O.S.No.15'73/1998 on ..'_:'~..t17_1ew.fi1e of the I Addl. City Civil 8: Sessions Judge, Bangalore, partly decreeing the" suit for partition and separate possession. it . C appeal coming on for further orders, this day, the Court it .c_lelivei?ed the following:-- E JUDGMENT There is no representation for the appellant. in spite of granting sufficient time, the office objections are not eompljefi Appeal is dismissed for non--compl1'an.ce_ of cfflee" bnV*

Author: Dr.K.Bhakthavatsala

Sri G Vijaya Kumar vs Smt C I Parvathi on 6 October, 2010

Karnataka High Court

JUDGMENT Walter Salis Schwabe, Kt., K.C., C.J. 1. This is a claim by the Raja of Ramnad against the farmers or tenants of villages in that zamindari to recover from them the money value of certain annual payments received by them from the ryots of those villages. In 1894 two cowles were executed by the then Raja in favour of those farmers. Before the cowles the Raja or Zamindar received 48 per cent of the total produce, the ryots or actual cultivators of the land keeping the other 52 per cent. Of that 48 per cent one-fourth or 12 per cent of total was received by the Raja for certain purposes---3 per cent for charities and 9 per cent for the payment of village officers whom the Raja was liable to pay. By the cowles, the Raja let for a term of years all his interest in the villages to the farmers. The villages are defined by boundaries and most of the land in them was in the occupation of ryots, but there were offices, buildings, tanks, trees and possibly waste land and jungle, which were in the occupation of the Raja himself. Therefore, what was let was his interest in the lands in the occupation of the ryots in respect of which he received the 48 per cent melvaram and such buildings, lands, trees, etc., as were in his own occupation. There was an obligation on the ¦part of the farmers to do certain repairs. After the cowles the farmers, in fact, received the whole 48 per cent melvaram and paid the village officers in kind. They agreed by the cowles to pay to the Zamindar in addition, to the rent reserved the 3 per cent for the charities and an amount which they collected for road cess for which the Zamindar remained liable as between him and the Government though between him and the fanners they took over this obligation. 2. John Wallis, C.J., with whose judgment I entirely agree, holds that the effect of the cowles was that the farmers took over with, the village and the waram the obligation to pay thereout what were, in fact, charges on that waram, that is, payments to be made to the village officers out of the waram. Sadasiva Ayyar, J., field that the obligation was taken over by the farmers by custom. This is probably also correct, but, if there is, as I hold, an implied term as found by Wallis, C.J., it is unnecessary to rely upon the custom. At a later date, by the Madras Act II of 1894, the payment of these officers in kind was abolished, and it would follow, if the matter rested there, that the farmers would be freed from liability to make these payments but could keep that part of the melwaram which was leased to them in order that they could make these payments, that is the 9 per cent. It is argued that they were receiving and paying away the 9 per cent to the village officers as agents of, or trustees for, the Raja. I am unable to accept this view or to say that there was an implication of the term in the cowle that the farmers should collect 9 per cent on behalf of the Raja and that, if at any time the whole or any part were not required for the payment of the village officers, they should account to him for any unused amounts. Now, it is a well established rule that a term will only be implied when the Court is driven to the conclusion that the parties must necessarily have intended that stipulation. This is generally known as the rule in The Moorcock (1889) 14 P.D., 64., which was followed and clearly enunciated in Hamlyn & Co. v. Wood & Co. (1891) 2 Q.B. 488..I can find no such necessity, for the cowle is equally consistent with the farmers taking over the whole waram and taking the risk of what they might have to pay to these village servants. It would be a perfectly intelligible contract and this, in my view, is the proper interpretation of this contract. Acting under the statute in question, the Government which had taken over that liability to pay the village servants and relieved the Raja from that liability increased the peshkash payable by the Raja with the result that, but for a further provision in the statute in a case like this, the Raja would have to pay the extra peshkash, whereas the farmers would receive and keep what was still being received from, the ryots to provide for the payment of the village officers, that is, the 9 per cent. This would be most inequitable and hence Section 27(4) of the Act provides as follows: "If, in any case, the rent payable to a proprietor in respect of any land has been fixed under an agreement subsisting on the date of this Act coming into force, to the effect that any portion of the remuneration of the village officers shall be borne by the tenant or the proprietor, as the case may be, it shall be lawful for the proprietor or tenant to apply to the Collector for sanction to increase the said rent or to demand its reduction; and the Collector shall, upon receipt of such application and upon satisfactory proof of the justice of the claim, grant such sanction and increase or reduce the rent to the amount at which it would have been fixed had no such agreement been entered into." This applies to this case unless it can be successfully contended that the farmers in question are not tenants within the meaning of that section, as was held by Sadasiva Ayyar, J., and was also held in Rajam Ayyar v. Raja Rajeswara Muthuramalingam Sethupathi S.A. No. 510. of 1918 (unreported). by Oldfield and Krishnan, JJ. I cannot attach importance to the latter case---we do not know what was argued or whether this question was necessary for the decision in that case. I do not agree with Sadasiva Ayyar, J., on this point or with that other judgment, if it so held. In my view, these farmers were tenants in the proper ordinary sense of the word for the reasons I have pointed out above. Further, I am quite clear that they are tenants within the meaning of this section for on any other construction of this section, persons in the position of these farmers who were many and known to be many at the time when the Act was passed, would have been left in possession of the produce of the land to which morally they had no sort of right, and I do not think I am driven to such an absurd construction. I do not attach any importance to the fact that it has been held under another or other statutes, such as the Madras Rent Recovery Act, that "farmers"---I use the word in the sense of persona farming the rents---are not "tenants" within the meaning of certain sections of those Acts. It follows that, in my judgment, the Raja is entitled to apply under that section to the proper authority to have the rent payable by the farmers adjusted in accordance with the terms of that section, namely, by increasing the rent to the amount at which it would have been fixed had no agreement been entered into providing that the farmers should pay the village officers. As far as I can see, the result will be that the Raja will obtain all that he is asking for in this action. But in my view, this action was entirely misconceived and accordingly the appeal must be allowed with costs and the decree of the Subordinate Judge will be modified by disallowing the value of the manibham and swatantram with interest. The parties will pay and receive proportionate costs both in the Subordinate Judge's Court and before the Division Bench. 3. I agree with the observations of Coutts Teotter, J., as regards the decision in Nallayappa Pillian v. Ambalavana Pandara Sannadhi (1904) I.L.R. 27 Mad. 465. Coutts Trotter, J. 4. I entirely agree, and I only desire to add two observations of my own. The first is this: It seems to me that, where a Court feels itself driven, as we do in this case, to make an implication in a contract which, is not there in terms, it should endeavour strictly to limit that implication to what is absolutely necessary to carry out what is believed to be the intention of the parties. In this case that appears to be effected by holding that what was intended was that the defendant undertook, as a personal covenant, the duty of discharging the claims of the village officers and of indemnifying the Zamindar against those claims. That seems to me to carry out sufficiently what we hold the parties to have meant, and I decline to go further and imply such conceptions as that of trusteeship or agency into such a matter. 5. The other observation that I desire to make is with regard to Section 27 (4) of the Madras Act II of 1894. I think it is most important in this country to construe the terms of an Act taken from the English Law strictly in relation to the immediate context and to decline to be guided by evidence as to their meaning or judicial interpretations of them when they occur in another context or in other statutes. I look at Section 27 (4) of this Act and I find these words:---If the rent payable to a proprietor in respect of any land has been fixed under an agreement to the effect that any portion of the remuneration of the village officers shall be borne by the tenant or the proprietor, as the case may be, then certain consequences shall follow. I think that, for the purposes of that section, it is abundantly clear that the word "tenant" must be so construed as to mean a person in the nature of those defendants whose case we are considering here. It seems to me that once you have got it that the Zamindar here, who is clearly the proprietor within the meaning of this statute, sues for payment T of rent---and, in fact, the first branch of Mr. Ranga Achariyar's argument was to insist upon it that what was covenanted for here was rent and nothing else---and if you look at this clause and nothing else, it is inevitable t to conclude that the person described as a "tenant" is the person who pays rent to the proprietor and that the one is the mere correlative of the other. Therefore, I think that there is nothing to prevent our holding that the defendant here is a tenant within the meaning of that statute, and I find nothing in Nallayappa Pillian v. Ambalanana Pandara Sannadhi (1904) I.L.R. 27 Mad. 465., to alter that opinion, would also point out that that case itself very wisely, if I may respectfully say so, proceeded on very much the same lines as I have indicated, namely, of construing the words in strict relation to the exact context and the portion of the statute in which they occur. I only desire to add this that I am not prepared to hold that the learned Judges, who decided Subbaraya v. Srinivasa (1884) I.L.R. 7 Mad. 580, 582 and Baskarasami v. Sivasami (1885) I.L.R. 8 Mad. 196., were wrong. Kumaraswami Sastri, J. 6. If the cowles can be construed to be assignments by the Zamindar of the 48 shares in the produce which were allotted to the Raja's share at the division of the produce subject to the obligation of the transferee to meet the obligations to discharge which 12 out of the 48 shares were liable and an indemnity in favour of the Zamindar, I agree with my Lord and my brother Coutts Trotter, J., that the remedy of the Zamindar is to proceed under Section 27 of the Proprietary Estates Village Service Act (Act II of 1894). Having regard to the terms of the cowles which are not mere transfers of the melvaram without any transfer of interest in the lands but which transfer in addition the waste forest and other lands in which the Zamindar had a proprietary interest and which also require certain services to be rendered, the cowledar will be a tenant in the ordinary acceptation of the terms. This distinguishes the case from the decision of Old field and Krishnan, JJ., in S.A. No. 510 of 1918, Raj am, Ayyar v. Raja Rajeswara Muthuramalinga Sethupathi S.A. No. 510 of 1918 (unreported). 7. He will be a person liable to pay rent to the Zamindar which has been fixed with reference to an implied agreement to the effect that he shall pay the remuneration to the village officers and Clause 4 of Section 27 will in terms apply to him. 8. I find it, however, difficult to hold that there was any transfer to the cowledar of the 12 shares out of the 48. 9. The immemorial practice in the zamindari was for the produce being brought to the threshing floor for division between the tenants and the Zamindar. The tenants took 52 shares and left 48 shares for the Zamindar who had to remunerate the village servants and to contribute towards certain charities (Mahamais). So Car as the remuneration of the village munsif, karnam and watchman were concerned it was a statutory duty. What, the Zamindar did was to set apart 1 share of the 48 left after the tenants took their share to the Dharma Mahamai, 2 shares to the Jari Mahamai and 9 shares for the remuneration of the village officers. The village officers had the right to receive their shares at the threshing floor at the time of the division. They had the right of suit against the Zamindar if they were not paid and could recover their share of the produce both personally and against the estate of the Zamindar. As regards the charities the Zamindar was bound to account and could be proceeded against for breach of trust if he did not set, apart and hand over the share due to the charities. It is clear that at the date of the cowles the Zamindar had no interest in the 12 shares which had, by long custom, been set apart for the discharge of obligations which were perfectly well known to everybody and could be enforced against the Zamindar. These obligations could not be got rid of by the Zamindar by assignment of the melvaram to somebody else, and he remains liable in spite of the assignment. An assignment of the 12 shares would not benefit the cowledar while it would not place the Zamindar in any better position than he would have been if there was no assignment. At the date of the cowle the position was this. As soon as the tenants took away their 52 shares, 36 shares were set apart for the Zamindar, 3 shares for the charities and 9 shares for the village officers, each party taking what was due. The terms of the cowle show, in my opinion, that what the Zamindar did was to transfer to the cowledar the 36 shares due to him and as to which he had absolute power of disposal and to ask the cowledar to collect and pay over to him the 3 shares which were due for the charities and make the various payments to be made to the village officers out of the shares. The terms of the cowles in the two appeals are similar and I shall take one of them by way of illustration. 10. The cowle, Exhibit A in Appeal No. 159, begins by stating that the sarasari for each fasli on a ten years' average was Rs. 982-10-1 and it fixes the rent at Rs. 425-3-1 on this basis. It is found by the Subordinate Judge and not disputed before us that Rs. 982-10-1 represents the amount calculated on the 36 shares which belonged to the Zamindar and excluded the 12 shares which were being set apart for the charities and payment to the village officials so that it is clear that the whole basis of the transaction was on the footing that what was being transferred was the net share of the Zamindar and not the whole of the 48 shares that remain after the tenants took their shares. The deed proceeds to stipulate that the cowledar should " along with the said poruppu (rent) amount pay the road cess, Jari Mahamai, Dharma Mahamai, etc., amount fixed upon the respective accounts." It is not disputed that these payments were to be made and were, in fact, being made during all these years to the Zamindar and not to the Government or the charities direct. No adequate reason is given as to why the Zamindar should require the road cess and charity amounts to be paid over to him if the 48 shares were assigned with the obligation to meet the liabilities direct. It is suggested that he wanted the charity amounts to be paid over to him direct in order that he might misappropriate a portion of what would otherwise go to the charities. It is extremely unlikely that a man who was assigning a village yielding more than double of what he required the transferee to pay him as rent would stipulate for the delivery to him of 3 per cent of the income in order that he might have the opportunity of misappropriating a small portion of that amount. The absurdity of it is patient. The reason why the Zamindar wanted these sums to be paid back to him is because he assigned over only the net amount after deducting the 12 shares and the 12 shares will have to be distributed between the charities and servants, neither the Zamindar nor the transferee having any beneficial interest in it. The village servants having the right to take their share out of the 9 shares of the produce set apart for them there was my necessity for the share being paid to the Zamindar and again paid over by him to the servants, convenience obviously suggesting that the cowledar should deliver it direct to the servants. As regards the Dharma Mahamai and Jari Mahamai which represented the 3 shares, as the practice was for the Zamindar to take 3 shares for payment over to the charities he required the cowledar to collect and pay over the 3 shares to him. 11. It is significant that the cowles nowhere state that the cowledar should discharge the obligations to third parties which the Raja was under an obligation to discharge. It simply states that the cowledar should pay over to the Raja the road cess and 3 shares allotted to the charities. It says nothing about the 9 shares payable to the village officers, a fact which is unlikely if there was a transfer of the 9 shares to the cowledar under an agreement of indemnity should the cowledar not pay the village servants. I agree with the following observations of Sadasiva Ayyar, J., whose knowledge of the land laws and tenures of this Presidency is unique, " both the lessee and the Raja knew and contemplated that the lessee will pay it according to custom to the village officers direct instead of through the Raja. The Raja's direct receipt of it himself at the granary and paying it over at once to his village officers would have resulted in a mere circumlocution and unnecessary trouble." I also agree with him in thinking that the 12 per cent was received by the cowledar as agent of the Raja and not by virtue of his right as assignee of the shares with an obligation to discharge the liability of the Raja to pay 3 per cent to charities and 9 per cent to the village officials. 12. I would confirm the decrees of the Subordinate Judge and dismiss the Letters Patent Appeals with costs.

Author: C Trotter

Tiruneelakantam Servai And ... vs B. Raja Rajeswara Sethupathi ... on 6 January, 1922

Bombay High Court

ORDER Per M. A. Ajinkya (Accountant Member) - This appeal by the department and the cross objection by the assessee relate to the assessment year 1985-86. Both these were heard together and are disposed of by this consolidated order. 2. The short ground in the departments appeal is that the CIT (A) erred in cancelling the penalty of Rs. 1,00,000 levied by the IAC under section 271B of the Income-tax Act, 1961. 3. The relevant facts are that the assessee is a limited company. The IAC imposed a penalty of Rs. 1,00,000 because the company had not fulfilled the requirements of section 44AB. It would appear that the company by its application in Form No. 6 dated 30-9-1985 sought extension of time for filing the return up to 31-10-1985. In the application form 6, the reason given for seeking extension was as follows : "Companys books of account are under audit for the purposes of Tax Audit Report to be filed along with the return of income as provided for under section 44AB of the Act inserted by the Finance Act, 1984, w.e.f., 1-4-1983. Consequently, various information required from various units of the Company for the purpose of computation of taxable income has been delayed." It filed another Form No. 6 on 31-10-1985 seeking extension of time up to 22nd November, 1985, and the reason given was as follows : "The Tax Auditors, A. F. Ferguson & Co., have for the purpose of finalizing the tax audit report in prescribed form 3-CA with particulars in 3-CD called for various clarification and information from various units of the company which are under compilation. Pending that, the draft audit report is being discussed with the Auditors and the final report is expected to be ready by 15-11-1985. The computation of taxable income for the purpose of tax return will be made considering the various points raised in the final tax audit report to maintain uniformity between the audit report and the return. We hope to complete this by 22nd November 1985. As stated in our application of 30-9-1985, we have effected the self assessment tax payment of Rs. 1 crore on an estimate basis for the current year." 4. As the tax audit report had not been obtained by the assessee before the specified date, proceedings under section 271B were initiated and notice under section 271B read with section 274 of the Act was issued to the assessee. In response to the said notice, the company submitted its reply in their letters dated 6-11-1985 and 19-11-1985. The case of the company before the IAC was that this was their first year in which the tax audit report had to be obtained before filing the return and, further, that Bombay Unit of the company was having labour trouble and, therefore, there was a delay. While dealing with this explanation, the IAC observed that the term specified date mentioned in section 44AB had been defined in the section itself and for the assessee-company, the specified date was the 30th June, 1985; that the Board in the terms of notification dated 19-6-1985 had extended the specified date up to 30-9-1985 but the assessee had not got its accounts audited before that date. The IAC also observed that, initially, the company, in its application dated 30-6-1985, sought extension up to 30th July, 1985, on the ground that the companys books of accounts were under audit. On 29th July, 1985, it sought extension up to 31st October, 1985, on the ground that the tax audit had just been completed and was being analysed. On 31st October, 1985, it sought extension up to 22nd November on the ground that the auditors, for the purpose of finalising the tax audit, had called for information from various units which was under compilation. According to the IAC, there were contradictions in the reasons stated in the various applications in Form No. 6 filed by the assessee for extension of time, from time to time. The IAC observed that the Board had extended the date for getting the tax audit completed to 30th September, 1985 and, by and large, all the companies had managed to get the tax audit report completed by that date and that the reasons given by the company were an after-thought. The company had never raised a plea that the main unit was facing labour problems and, therefore, they should be allowed time. Finally, the IAC observed that the tax audit report did not call for any information which was not required for the purposes of proper assessment earlier. It merely called upon the assessee to make available that information well in advance in order to avoid infructuous work of carrying out routine verification at the time of assessment. In this view of the matter, the IAC was fully convinced that the company had not complied with the requirements of section 44AB and had not shown reasonable cause for their failure and, hence, he levied penalty of Rs. 1,00,000. 5. When the matter went before the CIT (A), it was brought to his notice that as soon as the issue of delay in the tax audit report was raised, the assessee, in their letter dated 19th November, 1986, had prayed to the Commissioner (a copy of which was endorsed to the IAC) specifically mentioning the problems the company was facing with their labour unions. In that letter, the assessee had filed a copy of the letter from its auditors, M/s. Ferguson & Co., in which, inter alia, it was stated as follows :- "The company has 18 accounting units spread all over India. The Head Office in Bombay had issued instructions to all the units laying down various guidelines for compilation of information for incorporation in the final report. However, this being the first year, numerous clarifications and reworkings had to be obtained from virtually every unit or the information furnished by them for the tax audit. The Bombay factory of the company, which accounts for almost 50% of the total turnover of the company, was having serious labour problems. As such, we are informed that the entire information was compiled by supervisory and management staff without clerical assistance. It has, therefore, taken longer than expected for compilation and audit of the information." 6. The CIT (A) accepted the explanation of the assessee. He observed that while applying for extension of time for filing the return, it was sufficient if the assessee could say that the tax audit report was delayed. The assessee had brought to the notice of the authorities concerned the problem that it was facing with its labour unions, at the earliest possible stage, and this was supported by a letter of its auditors, a copy of which has been quoted hereinabove. The CIT (A) noted that the company had moved the court in May 1985, and had addressed various letters to the Assistant Commissioner of Labour in respect of the continuous labour problems which it was facing from December 1984. The labour problem was ultimately settled on 22nd November, 1985, when an agreement was signed and the CIT (A) had also noted that the assessee had filed tax audit report around that date. The CIT (A) also took note of the fact that the assessees business was scattered in various units and when it said that the auditors completed the report at those places, it meant that the unit accounts were duly audited. The final stage of sending all the unit reports to the head office was still to be completed and it was at that stage that the company discovered that many things were missing and some more important information had to be collected from certain units. As there was labour problem, this information could not be collected and, therefore, there was some delay and that could be treated as a reasonable cause. The CIT (A), therefore, observed that this was not a case where a general provisions of this type could be involved and, therefore, he deleted the penalty. Hence, this appeal. 7. The departmental representative, by and large, relied on the order of the IAC. 8. The learned counsel for the assessee, Shri S. E. Dastur, pointed out that there was no contradiction in the explanation given by the assessee in Form No. 6 filed from time to time. He argued that the self-assessment tax had been paid before the final return in September 1985, and then pointed out that the IAC had granted time for filing the return on every application made by the assessee, from time to time. Thus, on the application dated 20-6-1985, IAC, by his intimation dated 3-7-1985, had granted extension up to 30-7-1985 and on application dated 29-7-1985, the IAC, by his letter dated 1-8-1985, had granted extension of time up to 30-9-1985. Similarly, on the application dated 30th September, 1985, the IAC had granted time up to 31-10-1985 by his letter. But while granting such extension, he had called upon the assessee to ensure that self-assessment tax was paid due verification and that there was as likelihood of any discrepancy by the company between the self-assessment tax paid and thereafter the assessee made an application on 31-10-1985 requesting for time up to 22nd November, 1985 (for reasons which have already been reproduced hereinabove) on which, by his letter dated 31st October, 1985, it would appear that the company addressed a letter to the CIT, Bombay City-II, in which they specifically stated that they had commenced routine checking in respect of the tax audit by the company in June 1985 and that the tax audit could not be completed before the required date of 30th September 1985, because the company had 18 accounting units spread all over India and that the head office had issued instructions to all the units laying down various guidelines for compilation of information to be incorporated in the final report and since it was the first year, numerous clarifications had to be obtained from virtually all the units on the information to be furnished by them. Further, it was mentioned that the Bombay Factory had serious labour problems and that the entire information was completed by supervisory and management staff without clerical assistance and, thus, the factum of labour problem was brought to the notice of the CIT by the company in November 1985 itself. After mentioning these facts, the learned counsel for the assessee pointed out that there was no penalty levied by the IAC under section 271(1) (a). He relied on a decision of the Calcutta High Court in the case of Calcutta Chromotype (P.) Ltd. [1971] 80 ITR 627, and also the decision of the Allahabad High Court in the case of CIT v. Anchor Pressing (P.) Ltd. [1982] 136 ITR 505. The learned counsel also pointed out that the return was filed, ultimately, on 22nd November, 1985, and the IAC levied penalty under section 271B on 6-1-1986, although he completed the assessment on 21-3-1988. 9. We have carefully considered the submissions made on either side. We have also gone through carefully the order of penalty and also the order of the CIT (A), besides other papers filed before us at the time of hearing. The most important thing that we notice is that the IAC was satisfied with the reasons given in the application for extension of time, filed from time to time, and had granted extension of time for filing the returns, under his various letters, to the assessee up to 22nd November, 1985. The IAC did not initiate any penalty proceedings for delay in the filing of the return, which was, in fact, filed on the day on which the last extension granted by the IAC had expired. It is, therefore, surprising that having entertained the various applications for grant of extension of time and having granted extensions of time, asked for from time to time by the assessee, on being satisfied that there was adequate reason for the assessee to seek time for filing the return, the IAC should now find contradictions in the various explanations given in the applications for extensions, filed from time to time. This apart, the fact is that there are, in fact, no contradictions to be seen from the various explanations given by the assessee. We are not convinced that the company had made any contradictory or incorrect statements in Form No. 6 filed on 30-9-1985 and 31-10-1985, in one of which the company had clearly stated that the tax auditors, M/s. Ferguson & Co., had just completed the audit and that they were in the process of analysing the report. The company had conveyed that by September 1985, the routine checking of books of accounts and other relevant documentary evidence by the tax auditors had been completed. There were points raised by the tax auditors which were being analysed by the company. Since 1984 was the first year of the tax audit and the tax auditors had to view several issues peculiar to the company, which required considerable discussion and deliberations in the Form No. 6 dated 31-10-1985, the company had clearly stated that the tax auditors had called for various clarifications and information from various units of the company which were under compilation. We, therefore, find no contradictions in the various explanations given by the company in Form No. 6, filed from time to time. As stated by the CIT (A), the company had 18 units spread all over the country and were confronted with requirements of tax audit for the first time. It is also not correct to state that the explanation about labour trouble was given as an after-thought. As stated earlier, the company had written to the CIT on November 18, 1985, explaining their difficulties in this behalf. A copy of the complaint filed by the company against its employees union and union office bearers in May 1985 has been filed and a copy of the order of the Industrial Court dated 30th May, 1985, has also been filed and they form part of the compilation. The correspondence with the Labour Commissioner relating to the labour situation in the company at the relevant time is also filed. 10. On the facts stated above, we are satisfied that the IAC was not at all justified in rushing to levy penalty of Rs. 1,00,000 in January 1986, particularly when it appears he took his time to complete the assessment only in March 1988. The mitigating factor, so far the assessee is concerned, is the payment of self-assessment tax in September 1985. 11. The next aspect to be considered is whether any prejudice to the revenue has been caused by such alleged delay. The section under which the assessee is penalized is section 271B and this section, as it stood at the relevant time, read as follows :- "If any person fails, without reasonable cause, to get his accounts audited in respect of any previous year or years relevant to an assessment year or obtain a report of such audit as required under section 44AB, the ITO may direct that such person shall pay, by way of penalty, a sum equal to one- half per cent of the total sales, turnover or gross receipts, as the case may be, in business, or of the gross receipts in profession, in such previous year or years or a sum of one hundred thousand rupees, whichever is less." 12. It would be clear that failure to get the accounts audited and obtain a report of such audit under section 44AB has relevance if such a report does not accompany the return of income to be filed under section 139(1). In the present case, the return of income, though filed late, was filed after following the proper procedure of getting extensions of time for filing the return. Different applications under Form No. 6 were filed from time to time and the Assessing Officer had, after perusal of the reasons stated in such applications, granted time for filing the return, from time to time, up to 22nd November, 1985. The tax audit report was ultimately filed with the return of income which has to be considered as a return filed under section 139(1). Therefore, on a strict interpretation of section 271B, we would hold that if the return of income was filed within the extended time and if the tax audit report was filed along with such return, there is no default punishable under section 271B. Apart from this interpretation, that we have put on the provisions of section 271B, we find that the assessee has been consistently bringing to the notice of the IAC the difficulties that it faced in getting the tax audit completed. It had also brought to the notice of the CIT the labour problems that it was facing in various units. In these circumstances, we are surprised that in the face of such evidence and even after granting time to the assessee to file the return by 22nd November, 1985, the IAC should initiate steps for penalising the assessee to the extent of Rs. 1,00,000 for what can only be considered as a technical lapse, if at all it can be so called. We are fully satisfied that the levy of penalty was wholly misconceived and that the CIT (A) was, therefore, justified in deleting the same. There is absolutely no substance in the departments appeal which deserves to be and is hereby dismissed. 13. Coming to the cross objection of the assessee, the only ground taken is that the CIT (A) has not dealt with one ground which should be dealt with, in the event of the Tribunal reversing the order of the CIT (A). 14. Since we have confirmed the order of the CIT (A), we do not find it necessary to deal with the cross objection which is also hereby dismissed. 15. In the result - (a) The appeal by the department is dismissed. (b) The cross objection by the assessee is dismissed.

Inspecting Assistant ... vs Hindustan Lever Ltd. on 21 June, 1991

Bombay High Court

Court No. - 3 Case :- MISC. SINGLE No. - 3605 of 2010 Petitioner :- Gram Sabha Holapara Thru Pradhan Hanuman Singh Respondent :- Commissioner, Devi Patan Mandal, Gonda & Ors. Petitioner Counsel :- R.N. Gupta Respondent Counsel :- C.S.C.,ShiV Pal Singh Hon'ble Shri Narayan Shukla,J. Supplementary affidavit filed today, is taken on record. Learned counsel for respondents prayed for three days time to file reply. Time is allowed. List on 22.06.2010. Order Date :- 17.6.2010 Sanjeet

Gram Sabha Holapara Thru Pradhan ... vs Commissioner, Devi Patan Mandal, ... on 17 June, 2010

Allahabad High Court

JUDGMENT Dalal, J. 1. I do not agree with the opinion of the learned Sessions Judge The applicant has been convicted of bringing out of the limits of the Jhansi Municipal Board certain parts of a motor car, without paying octroi duty. The learned Judge held that these parts were chargeable with duty, because under Sub-section 16, Section 132, Municipal Account. Code, motor cars complete are exempted from payment of octroi but not parts and accessories of motor cars. This means that the Municipality is prepared to admit a camel but will strain at a gnat. On behalf of the accused it is argued that he can obtain exemption under Sub-section 14, which exempts from octroi duty machinery and its component parts. Machinery is defined as a machine or a set of machines to be worked by electric, steam, water, fire or other power not being manual or animal labour. The machine of a motor car will certainly be included under this head together with its component parts. The argument of the learned Judge, however, was and it has been put before this Court in greater detail by the learned Assistant Government Advocate that as motor car has been specifically mentioned, we must not look at the other heading of machinery. This method of looking only at one portion of the Municipal Code and closing one's eyes at any other portion is a fanciful method of interpreting rules. A water tight compartment rule cannot be a correct one for interpretation. Persons subject to taxation are entitled to exemption under any head under which such exemption may be claimed. It is true that as the parts of motor cars are not exempted from duty, the curious result will follow that parts of the body of a motor car will be liable to duty but parts of the machine of a motor car being exempted under Sub-section 14, will not be. [ hold that such parts are not liable to duty. 2. All the revision applications shall be considered in accordance with this rule. In this revision No. 821 a cylinder head was imported. This is clearly part of a machine and exempted under Sub-section 14. I set aside the conviction and sentence and order the fine if any recovered to be refunded.

Author: Dalal

Surjan Lal vs Emperor on 30 January, 1929

Allahabad High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 20938 of 2009(J) 1. M.SAHADEVAN, S/O. MADHAVAN, AGED 45 ... Petitioner Vs 1. CANARA BANK,NEMMARA BRANCH, PALAKKAD, ... Respondent 2. VALLANGHY DESOM, (VELA COMMITTEE) For Petitioner :SRI.C.P.PEETHAMBARAN For Respondent :SRI.P.GOPINATH MENON, SC, CANARA BANK The Hon'ble MR. Justice P.N.RAVINDRAN Dated :18/12/2009 O R D E R P.N.RAVINDRAN, J ....................... W.P.(C).20938/2009 ....................... Dated this the 18th day of December, 2009 JUDGMENT The petitioner was surety to a loan availed by Sri. Peethambaran on 2.2.2000 from the Canara Bank, Nenmara Branch. Sri.Peethambaran had also mortgaged an item of property, four cents in extent together with the residential building therein as security for the loan by depositing the title deeds. The principal debtor committed suicide on 11.5.2006. The petitioner had opened a recurring deposit account with the same branch of the Canara Bank and as on 13.3.2006 the sum of Rs.1,82,000/- was lying to the credit of the petitioner in the said account. Even while the principal debtor was alive, he had assigned the property mortgaged as security to the second respondent on 29.10.2001. It is stated that the said transfer was effected with the consent of the Canara Bank. The petitioner thereupon filed a suit O.S.No.334 of 2006 in the Court of the Subordinate Judge of Palakkad, contending that the bank should proceed against the security instead of exercising the banker's lien over the money lying in his recurring deposit account. In that suit, the bank entered appearance and filed a written statement.  W.P.(C).20938/09 2 The dispute was ultimately settled out of court in the Lok Adalath held by the Palakkad Taluk Legal Services Committee and an award was passed on 13.12.2008. As per the terms of the settlement, the second respondent herein undertook to pay the mortgage debt of Rs.1,42,000/- to the first respondent bank on or before 12.4.2009. It was also agreed that upon such payment being made, the plaintiff will be at liberty to withdraw the money from his recurring deposit account. This writ petition was filed on 24.7.2009, contending that till date the second respondent has not deposited the mortgage debt, as a result of which the petitioner is put to serious prejudice. In this writ petition, relying on Ext.P4 award passed by the Lok Adalath, the petitioner seeks a direction to the first respondent to release the money lying to his credit in the recurring deposit account. The petitioner also seeks a direction to the first respondent to proceed against the second respondent to recover the mortgage debt. 2. When this writ petition came up for hearing on 9.9.2009, based on the submission made by the learned counsel appearing for the second respondent, this Court directed the second respondent to pay the sum of  W.P.(C).20938/09 3 Rs.50,000/- towards settlement of Ext.P4 award within two weeks from that date. The petitioner was also directed to issue a statement showing the balance amount payable for satisfying Ext.P4 award. The second respondent was also directed to file an affidavit in this Court undertaking to pay that the amount covered by Ext.P4. Pursuant to the said order, the second respondent paid the sum of Rs.50,000/- on 18.9.2009. The second respondent also filed an affidavit dated 19.9.2009 undertaking to pay the balance amount in eight equal monthly instalments. The second respondent however contends relying on the statement of accounts furnished by the bank that the balance amount payable is only Rs.84,344/- 3. The learned standing counsel appearing for the bank has filed a statement stating that the statement issued by the bank to the effect that the money due under the award is Rs.84,344/- is erroneous. The learned counsel states that the award was for Rs.1,42,000/- and that as only Rs.50,000/- was paid pursuant to the order of this Court, the balance amount payable is Rs.92,000/- and not Rs.84,344/- as claimed by the second respondent. 4. I have considered the submissions made at the  W.P.(C).20938/09 4 Bar by the learned counsel on either side. The liability of the second respondent to pay the sum of Rs.1,42,000/- in terms of Ext.P4 award is not in dispute. The petitioner is not liable to pay any amount to the first respondent under the said award. The property purchased by the second respondent was the security offered by the principal debtor when he availed a loan from the first respondent. Without the knowledge of the petitioner who was the surety to the loan transaction, the bank permitted the principal debtor to transfer the property to the second respondent. The bank thereafter proceeded against the petitioner. At that stage, he filed a suit which ended in Ext.P4 award. The second respondent does not dispute their liability to pay the sum of Rs.1,42,000/-, pursuant to Ext.P4 award. The time limit fixed by the Lok Adalath for payment of the said amount expired on 4.12.2009. More than seven months have passed thereafter. It was only after this Court had directed payment of Rs.50,000/- that any payment was made by the second respondent. That payment was effected only on 18.9.2009. As the second respondent has paid only the sum of Rs.50,000/- they are liable to pay the balance sum of Rs.92,000/- to the first respondent bank pursuant to Ext.P4  W.P.(C).20938/09 5 award. In such circumstances, I am of the opinion that the second respondent which earns a large amount during the festival season does not deserve any further leniency. I accordingly dispose of this writ petition with a direction to the second respondent to pay the balance amount of Rs.92,000/- towards full and final settlement of Ext.P4 award to the first respondent bank on or before 31.1.2010. If the second respondent does not pay the said amount on or before 31.1.2010, the bank shall proceed to attach the immovable properties belonging to the second respondent or the moneys lying in the bank accounts maintained by the second respondent. The bank shall without prejudice to that right forthwith permit the petitioner to withdraw moneys from the recurring deposit account maintained by him. P.N.RAVINDRAN, Judge mrcs 

M.Sahadevan vs Canara Bank on 18 December, 2009

Kerala High Court

Gujarat High Court Case Information System Print SCA/8734/2011 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 8734 of 2011 ========================================================= RAJKUMARI HEMANGINIKUMARI KIRITKUMAR - Petitioner(s) Versus SATLASANA TALUKA PANCHAYAT & 2 - Respondent(s) ========================================================= Appearance : MR PJ KANABAR for Petitioner(s) : 1, None for Respondent(s) : 1 - 3. ========================================================= CORAM : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 14/07/2011 ORAL ORDER Notice pending admission, returnable on 27th July 2011. Direct Service is permitted. mathew [S.R.BRAHMBHATT. J.]     Top

Author: S.R.Brahmbhatt,

Rajkumari vs Satlasana on 14 July, 2011

Gujarat High Court

Court No. - 33 Case :- WRIT - C No. - 61729 of 2008 Petitioner :- Raj Veer Singh Respondent :- State Of U.P. & Others Petitioner Counsel :- Jai Prakash Prasad Respondent Counsel :- C.S.C. Hon'ble Pankaj Mithal,J. The petitioner is aggrieved by the orders dated 30.5.2008 passed by Additional District Magistrate (Finance and Revenue) and the appellate order dated 4.10.2008 passed by the Commissioner of the Division dismissing the appeal thereto. The petitioner purchased land of Khasra No.69/8 area 0.5 hectare vide sale deed dated 13.12.2007 which was registered on 12.12.2007. In respect of the aforesaid sale deed proceedings under Section 33/47-A of the Indian Stamp Act were initiated and vide order dated 30.5.2008 the market value was determined by treating the land to be of residential use. Accordingly, deficiency was determined and penalty was also imposed. The deficiency was directed to be paid along with interest. The aforesaid order has been upheld in appeal. The only argument of learned counsel for the petitioner is that the aforesaid land is agricultural in nature on which actual cultivation was going on, therefore, the authorities erred in determining its market value by applying circle rate of residential land. The land in dispute is agricultural in nature as is established from the relevant extract of Khatauni/Khasra of 1415 F wherein on the aforesaid land crop of Bazra and Gehun have been shown. In the counter affidavit it has been stated that the land in dispute was declared as non-agricultural in nature vide order dated 30.5.2005 but no such order has been produced or brought on record. On the other hand, it has been emphasised by the petitioner that though there is a notification under Section 143 of the U.P. Zamindari Abolition and Land Reforms Act in respect of adjoining land but there is no such 2 notification in respect of the land in question which therefore continues to be agricultural in nature. In Aniruddha Kumar and Ashwini Kumar Vs. Chief Controlling Revenue Authority U.P. Allahabad and others 2000(3) AWC 2587 this Court has clearly laid down that where in respect of agricultural land there is no declaration under Section 143 of the U.P. Z.A. & L.R. Act its nature would not change and its market value for the purposes of payment of stamp duty would be determined on the basis of the agricultural character of the land and not on the basis of future potentiality. In the absence of declaration under Section 143 of the Act on record it cannot be accepted that the land had been declared to be non- agricultural in nature. In M/s. Maya Food and Vanaspati Ltd. Co. Vs. Chief Controlling Revenue Authority (Board of Revenue) Allahabad, 1990 (90) RD 57, it has been held that the market value of the land cannot be determined with reference to its future or intended use to which the land is likely to be put by the purchaser. In the case of Ram Khilawan Vs. State of U.P. and others 2005 (2) AWC 1987 it has been laid down that the circle rates prescribed by the Collector under the Indian Stamp Act are only limited for the payment of stamp duty till the time of registration of the sale deed. However, if after registration the matter is referred, the market value is to be determined according to general principles as are applicable for determining market value/compensation under the Land Acquisition Act. In the present case the market value as well as the deficiency in stamp duty has been determined on the basis of circle rate notified by the Collector. The exemplar method has not been followed. Moreover, circle rate of non-agricultural land has been applied for determining the market value of the land by taking the potential use of 3 the land. Thus the authorities erred on all the three counts in passing the impugned orders. In this view of the matter, the impugned orders dated 30.5.2008 passed by Additional District Magistrate (Finance and Revenue) and dated 4.10.2008 passed by the Commissioner, Aligarh Division, Aligarh are unsustainable and are quashed. The matter is remanded to the authorities below for decision afresh with direction to first determine the nature of the land and thereafter the market value as per the general principles in accordance with law. Any amount deposited by the petitioner pursuant to the orders which have been quashed is directed to be refunded. Writ Petition is accordingly allowed. Order Date :- 1.7.2010 BK

Raj Veer Singh vs State Of U.P. & Others on 1 July, 2010

Allahabad High Court

Gujarat High Court Case Information System Print MCA/2458/2005 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD MISC.CIVIL APPLICATION No. 2458 of 2005 In LETTERS PATENT APPEAL No. 639 of 2001 In SPECIAL CIVIL APPLICATION No. 4872 of 1998 ============================================= ARJUN APARTMENT ASSOCIATION - Applicant(s) Versus GUJARAT HOUSING BOARD & 2 - Opponent(s) ============================================= Appearance : MR RA PATEL for Applicant(s) : 1, None for Opponent(s) : 1 - 3. ============================================= CORAM : HONOURABLE THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA and HONOURABLE MR.JUSTICE ANANT S. DAVE Date : 18/02/2010 ORAL ORDER(Per : HONOURABLE THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA) Having heard the counsel for the petitioner and in absence of any error on the face of the order, we are not inclined to review or recall the order dated 9.10.2002 passed in Letters Patent Appeal No.639 of 2001 on merit. This application is dismissed. (S.J. MUKHOPADHAYA, CJ.) (ANANT S. DAVE, J.) zgs/-

Author: Mr.S.J.Mukhopadhaya,&Nbsp;Honourable Mr.Justice Dave,&Nbsp;

Arjun vs Unknown on 18 February, 2010

Gujarat High Court

IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated:- 25.10.2006 Coram:- The Honourable Mr. Justice P.SATHASIVAM and The Honourable Mr. Justice S.TAMILVANAN Habeas Corpus Petition No.859 of 2006 Lalitha ... Petitioner Vs. 1.The State of Tamil Nadu, Rep. by its Secretary to Government, Prohibition and Excise Department, Fort St.George, Chennai-9. 2.The District Magistrate and District Collector, Cuddalore District, Cuddalore. ... Respondents Petition under Article 226 of the Constitution of India for the issuance of a Writ of Habeas Corpus to call for the records in C1/D.O/03/2006 dated 10.07.2006 by the second respondent herein and quash the same as illegal and consequently direct the respondents to produce the detenu Sekar @ Kora Sekar, S/o Duraisamy, who is now confined in Central Prison, Cuddalore, before this Court and set him at liberty. For Petitioner : Mr.K.Gandhi Kumar For Respondents : Mr.M.Babu Muthu Meeran, Addl. Public Prosecutor O R D E R (Order of the Court was made by P.SATHASIVAM,J.) The petitioner, who is the wife of the detenu, by name Sekar @ Kora Sekar, who is detained as a "Goonda" as contemplated under the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Slum Grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982), by the impugned detention order dated 10.07.2006, challenges the same in this Petition. 2. Heard learned counsel for the petitioner as well as learned Additional Public Prosecutor for the respondents. 3. At the foremost, the learned counsel for the petitioner, by drawing our attention to the details stated in paragraph Nos.3(iii) and 5 of the grounds of detention, submitted that the detention order has to be quashed on the ground of non-application of mind on the part of the detaining authority. He also contended that without sufficient material, the detaining authority has arrived at a conclusion that the remand of the accused/detenu was extended up to 19.07.2006. 4. In the light of the said contention, we verified the relevant paragraphs. In paragraph No.3 sub clause (iii), the detaining authority has stated that "During the course of investigation, the Inspector of Police produced the accused Thiru.Sekar @ Kora Sekar before the Court of District Munsif cum Judicial Magistrate, Neyveli on 21.06.2006 and has been remanded to judicial custody till 05.07.2006. Further his remand was extended up to 19.07.2006. Now he is presently lodged at Central Prison, Cuddalore....". Again, in paragraph No.5, the detaining authority has stated that " I am aware that Thiru Sekar @ Kora Sekar has been remanded to judicial custody upto 19.07.2006 and lodged at Central Prison, Cuddalore in connection with the ground case in Cr.No.215/2006.....". The above references clearly show that after the initial order of remand on 21.06.2006, the accused/detenu has been remanded to judicial custody on 05.07.2006 and up to 19.07.2006. We verified the paper book supplied to the detenu. The initial order of remand report which is available at page No.160 of the paper book shows that the accused was produced at 1.30 p.m. on 21.06.2006 and he was remanded till 05.07.2006. There is no quarrel about the same. However, the remand extension order which is available at page No.162 of the same book, reads as under: "Accused not produced. Accused to be produced on 19.07.2006." The said order was passed on 05.07.2006 which shows that in view of the fact that the accused was not produced on 05.07.2006, the learned District Munsif cum Judicial Magistrate, Neyveli, directed the accused to be produced on 19.07.2006, which shows that there is no order by the learned Magistrate extending the remand of the accused/detenu till 19.07.2006 as stated in paragraph Nos.3(iii) and 5 by the detaining authority. There is no other material to show that the remand of the accused/detenu was extended by valid order by the Magistrate up to 19.07.2006. The said relevant aspect was neither considered by the detaining authority nor any clarification was sought for from the sponsoring authority. Apart from the said infirmity, as rightly pointed out by the learned counsel for the petitioner in the translated copy of the order dated 05.07.2006, it is mentioned as (VERNACULAR [TAMIL] PORTION DELETED) Though it is claimed that it is a translated version of the order dated 05.07.2006 which is available at page No.162, the translated version proceeds as if that the remand was extended till 19.07.2006. We are satisfied that it is a defective translation. On this ground also, the impugned order of detention is liable to be interfered with. 5. Accordingly, the Habeas Corpus Petition is allowed and the impugned order of detention is set aside. The detenu is directed to be set at liberty forthwith from the custody unless he is required in connection with some other case or cause. gms To 1. The Secretary to Government, State of Tamil Nadu, Prohibition and Excise Department, Fort St.George, Chennai-9. 2. The District Magistrate and District Collector, Cuddalore District, Cuddalore. 3. The Superintendent, Central Prison, Cuddalore (In duplicate for communication to detenu) 4. The Joint Secretary to Government, Public (Law and Order) Fort St. George, Chennai-9. 5. The Public Prosecutor, High Court, Madras. [PRV/8408]

Lalitha vs The State Of Tamil Nadu on 25 October, 2006

Madras High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No.505 of 2011 IN CWJC No.11090 of 2010 With I.A. No. 2241 of 2011 ==================================================== 1. The Vice Chancellor, Veer Kunwa Singh University, Ara. 2. The Registrar, Veer Kunwar Singh University, Ara. 3. The Finance Officer, Veer Kunwar Singh University. -Respondents- Appellants Versus 1. Sita Raman Pandey, son of Late Ramashankar Pandey, Resident of Village- Ratwar, P.S. Bhabhua, District-Kaimur -Petitioner- Respondent 1st set. 2. The State of Bihar through the Principal Secretary-cum-Commissioner, Human Resources Department, (Higher Education), Government of Bihar, Patna. 3. The Director, Higher Education, Government of Bihar, Patna. -Respondents-Respondents 2nd Set 4. The Principal, Gram Bharati Mahavidyalay, Ramgarh, District-Kaimur. 5. The Principal, Sardar Ballabh Bai Patel Mahavidyalay, Bhabhua, District- Kaimur. -Respondent-Respondent 3rd Set ==================================================== Appearance : For the Appellant : Mr. Ajay Behari Sinha, Advocate For the Respondents: Mr. Rewti Kant Raman, A.C. to GP-13 ==================================================== CORAM: HONOURABLE THE CHIEF JUSTICE And HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER (Per: HONOURABLE THE CHIEF JUSTICE) 2 2 23.03.2011 Re. Interlocutory Application No. 2241 of 2011 This application under Section 5 of the Limitation Act has been filed by the appellant for condonation of delay of 92 days occurred in filing the Letters Patent Appeal. On the facts and in the circumstances of the case, the delay is condoned. Interlocutory Application stands disposed of. Re. Letters Patent Appeal No. 505 of 2011 This Appeal under Clause 10 of the Letters Patent is preferred by Veer Kunwar Singh University against the judgment and order dated 27th October 2010 made by the learned Single Judge in above C.W.J.C. No. 11090 of 2010. The writ petition was filed by the respondent, a teacher in the appellant-University for recovery of arrears of salary for a period of some 20 years. The amount of arrears of salary of Rs. 5,77,277/- was paid to the writ petitioner pending the writ petition. For the aforesaid delay caused in making the payment of the salary, the learned Single Judge has directed for payment of interest at the rate of 12% per annum from the date the amount became due till the date of payment. Learned Advocate Mr. Ajay Bihari Sinha has appeared for the appellants. He has submitted that prior to 1992 the writ petitioner was serving under the Magadh University. His service stood transferred to the appellant-University viz Veer Kunwar Singh University in the year 1992 therefore, the appellant-University is not liable to pay salary prior to the year 1992. He has further submitted that the salary to the 3 teachers of the University is paid from the salary grant paid by the State Government. At the relevant time the State Government did not release the sufficient amount. The University, therefore, could not make full payment of salary. Be that as it may, in view of the fact that the petitioner was not paid his due salary at the relevant time and that the arrears was allowed to be accumulated to the extent of Rs. 5,77,277/- that was paid only after the writ petitioner approached this Court in above C.W.J.C. No. 11090 of 2010, the learned Single Judge was wholly justified in awarding interest for the delayed payment of salary. No case for interference is made out. The Appeal is dismissed in limine. (R.M.Doshit, CJ.) (Jyoti Saran, J.) Bibhash

The Vice Chancellor, Vir Kunwa vs Sita Raman Pandey &Amp; Ors on 23 March, 2011

Patna High Court - Orders

Gujarat High Court Case Information System Print CA/7590/2003 2/ 2 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL APPLICATION - FOR STAY No. 7590 of 2003 with FIRST APPEAL No. 2291 of 2003 ================================================= NEW INDIA ASSURANCE CO. LTD - Petitioner(s) Versus SALIYABAI ABDEREHMAN JAT & 6 - Respondent(s) ================================================= Appearance : MS MEGHA JANI for Petitioner(s) : 1, None for Respondent(s) : 1 - 7. ================================================= CORAM : HONOURABLE MR.JUSTICE A.M.KAPADIA and HONOURABLE MR.JUSTICE R.H.SHUKLA Date : 03/07/2008 ORAL ORDER(Per : HONOURABLE MR.JUSTICE A.M.KAPADIA) Respondent Nos. 1 to 5 / original claimants are served and Mr. Kamlesh Mehta, learned advocate has entered his appearance for Respondent No. 1 / claimant only. However, when the matter was called out no one appeared on behalf of Kamlesh Mehta, learned advocate for Respondent No.1 or Respondents / Original Claimant Nos. 2 to 5, who are served. Therefore, in the larger interest of justice, FRESH NOTICE in First Appeal as well as FRESH RULE in Civil Application be issued to Respondent Nos. 1 to 5, returnable on 31.7.2008. (A.M.Kapadia,J) (R.H.Shukla,J) Jayanti*     Top

Author: A.M.Kapadia,&Nbsp;Honourable Mr.Justice H.Shukla,&Nbsp;

New vs Saliyabai on 3 July, 2008

Gujarat High Court

RFA No. 302 of 2016 03.01.2018 Present: Mr. Abhishek Sood, Advocate, vice Mr. Suneet . Goel, Advocate, for the appellants/applicants. Mr. Ranvir Chauhan, Advocate, for respondents- non-applicants No. 1 and 2 and for proposed LRs. No. 3(i) to 3(iv). Mr. Vikram Thakur, Deputy Advocate General, for respondent-non-applicant No. 4. CMP (M) No. 1536 of 2017 By way of this application, the applicants have prayed for condonation of delay in filing the application to bring on r record the legal representatives of deceased respondent No. 3. It is apparent from the averments made in the application that respondent No. 3 in fact had died during the pendency of the Reference Petition before the learned Reference Court and therein probably no steps were taken for the substitution of legal representatives of deceased respondent No. 3. No reply is intended to be filed to the present application by the non-applicants/respondents. Having heard learned counsel for the parties and after going through the averments made in the application, as it is apparent that the delay in filing the application to bring on record the legal representatives of deceased respondent No. 3 is bonanfide and not intentional, accordingly this application is allowed and five years, one month and eighteen days' delay in filing the application is condoned. Application stands disposed of. CMP (M) No. 1535 of 2017 . By way of this application, the applicants have prayed to bring on record the legal representatives of deceased respondent No. 3, who is stated to have died on 14.06.2012 during the pendency of the Reference Petition itself before the learned Reference Court. No reply is intended to be filed to the present application by the non-applicants/respondents. Taking into consideration the averments made in the application, the same is allowed. Proposed legal representatives of deceased respondent No. 3, whose details are provided in para-4 of the application, are ordered to be substituted as respondents No. 4(i) to 4(iv). Amended memo of parties be filed within a period of two weeks. Application stands disposed of in above terms. RFA No. 302 of 2016 List in due course. (Ajay Mohan Goel) Judge January 03, 2018 (bhupender) ::: Downloaded on - 04/01/2018 23:07:31 :::HCHP .

Rfa No. 302 Of 2016 vs Mr. Ranvir Chauhan on 3 January, 2018

Himachal Pradesh High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM Bail Appl..No. 2466 of 2008() 1. PRADEESH KUMAR, S/O.MADHAVAN NAMBIAR, ... Petitioner Vs 1. THE STATE OF KERALA, REPRESENTED BY THE ... Respondent 2. THE C.I. OF POLICE, MATTANNOOR, KANNUR. For Petitioner :SRI.R.RAJASEKHARAN PILLAI For Respondent : No Appearance The Hon'ble MR. Justice V.K.MOHANAN Dated :18/04/2008 O R D E R V.K.MOHANAN, J. ------------------------------------ B.A.No.2466 of 2008 ------------------------------------- Dated this the day of April, 2008 ORDER The petitioner herein is seeking anticipatory bail in Crime No.115 of 2005 of Iritty Police Station, which is a crime registered for the offences punishable under Sections 143, 147, 148, 450, 395 and 430 r/w 149 I.P.C. The petitioner pleads that he is innocent and pressed for an order of anticipatory bail. 2. I have heard the learned Public Prosecutor . 3. It is brought to my notice that as per Annexure-1 order, the petitioner has got an order in Crime 114 of 2005 of the very same police station. In the said order, this Court observed that in case the petitioner surrenders before the concerned Magistrate Court and applies for bail, the learned Magistrate is directed to pass appropriate orders. The learned counsel for the petitioner submitted that a similar order may be issued in this case also. It is submitted that the petitioner is absolutely innocent and his absence during the earlier occasion was not wilful and the petitioner is willing to surrender before the learned Magistrate and seek regular bail. Bit according to the counsel, on the  B.A.No.2466 of 2008 2 petitioner's surrendering before the learned Magistrate, he is likely to remand. There is no material to substantiate the apprehension of the petitioner that the bail application will not be considered by the learned Magistrate on merits and expeditiously. 4. In the light of the above factual circumstances and in view of the order passed by this Court as per Annexure-1 order, I am of the opinion that this application can be disposed of. 5. Accordingly, the petitioner is directed to appear before the learned Magistrate and to move an application for bail with sufficient prior notice to the prosecutor in charge of the case, in which case, the learned Magistrate must proceed to pass appropriate orders on merits, in accordance with law and expeditiously. 6. The petitioner has a further contention that he is not the 6th accused, who is arrayed as an accused in the case. The above contention can be raised at the appropriate stage. Accordingly the above bail application is dismissed with the above observations. (V.K.MOHANAN, JUDGE) rtr/- B.A.No.2466 of 2008 3

Pradeesh Kumar vs The State Of Kerala on 18 April, 2008

Kerala High Court

CASE NO.: Appeal (crl.) 663 of 2001 Appeal (crl.) 867 of 2001 PETITIONER: Dhanraj and others, Smt. Venubai Kelnako Raut RESPONDENT: State of Maharashtra DATE OF JUDGMENT: 16/09/2002 BENCH: R. C. Lahoti & Brijesh Kumar. JUDGMENT: J U D G M E N T BRIJESH KUMAR, J. The criminal appeals mentioned above arise out of the judgment and order passed by the High Court of Maharashtra in Criminal Appeal No.49 of 1995, upholding the conviction of the appellants under Section 302 read with Section 34 IPC and the sentence of imprisonment for life thereunder and a fine of Rs.100/- each, in default of payment whereof, further rigorous imprisonment for a period of one month. We have before us in all four appellants since Laxmibai has not preferred any appeal against her conviction and the sixth accused who was also charge- sheeted namely, Ramesh continues to be absconding. Appellants Dhanraj, Subhash and Sukhdeo are brothers being sons of Kisana Raut. The absconding accused Ramesh is younger brother of Kisana Raut. The appellant Venubai is mother of Kisana and Ramesh. Laxmibai is wife of Kisana . The deceased Sindhubai was the wife of absconding accused Ramesh. The prosecution story is that accused persons had not been happy with the deceased Sindhubai. She was the second wife of Ramesh. They were married about three years prior to the incident but she did not bear any child to Ramesh. According to the statement of the deceased to the police, the accused persons wanted her to be turned out of the house and Ramesh had started developing relations with Sunanda sister of Laxmi. They planned to drive out the deceased from the house so that Ramesh could marry Sunanda. It is said that on 12.3.1992 a quarrel took place in the house. The husband, the sister-in-law Laxmi, her sons and Venubai wanted the deceased to leave the house but she did not. She was also given beating. On the date of incident, namely, 17.3.1992 at about 8.30 A.M. again a quarrel took place amongst the persons indicated above and the deceased in which Venubai is said to have beaten her with a bamboo stick. Thereafter Dhanraj, Subhash and Sukhdeo caught hold of Sindhubai and Laxmibai and Venubai brought two bottles of kerosene oil and sprinkled the same on the body of Sindhubai and Ramesh lighted a match stick and threw it upon Sindhubai who caught fire. PW-1 Umesh, brother of the deceased who was present in the house poured some water on Sindhubai. Thereafter he rushed to inform his parents. Sindhubai fell down in the Courtyard. She, however, went to the Primary Health Centre, Warud all alone by herself by a Jeep upto Sunoli Naka and then by a Rikshaw. No one from her in-laws or husband accompanied her. The Medical Officer of the Primary Health Centre, Warud examined her and informed the police. She also informed the police to arrange for recording of the dying declaration of the deceased. On the information received from PHC Warud, PW-9 Sheshrao, P.S.I. also came to the hospital and recorded her statement. He obtained the thumb impression of Sindhubai on the statement which is marked as Ex.55. On the basis of the said statement he registered a case under Section 307/34 IPC as Crime No.76/92. Naib Tehsildar also came to the PHC and recorded statement of the deceased.The doctor thereafter referred her to the General Hospital, Amravati. Sindhubai however died in the hospital on 22.3.1992 whereupon the case was converted to one under Section 302 IPC. PW-7, Nana Sahib, Naib Tehsildar recorded the dying declaration of Sindhubai at the PHC, Warud. Before recording her statement he had enquired from the doctor whether she was in a position to give statement to which the doctor responded in the affirmative. He therefore proceeded to record her statement narrating the whole story as to how the incident had occurred. The statement recorded by Naib Tehsildar is Ex.52. It is also signed by the doctor. PW8 Dr. Anita was on duty as Medical Officer in Primary Health Centre, Warud at the relevant time. She examined Sindhubai and gave her some treatment. She also stated in her cross-examination that Naib Tehsildar had enquired from her as to whether the victim was in a position to give her statement to which she had responded in affirmative. She had also performed post mortem examination on the dead body of the deceased. The prosecution has also examined PW-1, Umesh, PW-2, Mangla and PW-5, Kamla as eye witnesses of the incident. PW-6 is the father of the deceased who arrived at the hospital on getting the information of the incident. PW-9 is Shesh Rao, the Investigating Officer. So far the injuries received by the deceased are concerned, it is said that she had 60% second degree burn injuries. She survived for five days and died on 22.3.1992. Out of the three witnesses PW 1 Umesh is younger brother of the deceased Sindhubai, he had been staying at her sister's house on the fateful day, his parents reside about 6 kilometers away. He narrated the incident in detail stating that in the morning at about 8.30 A.M. appellant Venubai was quarrelling with his sister Sindhubai. Thereafter appellants Dhanraj, Subhash and Sukhdev, who all reside around the house of the deceased, arrived and caught hold of Sindhubai, Laxmibai and Venubai poured kerosene oil upon his sister and Ramesh, the brother-in-law, lighted the match stick and threw it on the Sindhubai who caught fire. The next eye- witness PW 2 Mangla has also narrated the incident as it took place in the morning of 17.3.92 supporting the statement of Umesh. He resides at a distance of 50 ft. from the house of Sindhubai. He was then a student of 8th standard. He has also stated that prior to the incident Ramesh was in Jail for 6 to 7 months and during that period Sindhubai had been residing with her parents. In the cross examination he has also stated that at the time he reached near the house of Sindhubai she was lying in the Verandah. He denied the suggestion that he has deposed due to dispute between Kisana, Ramesh and others and the father of the witness. The next witness is PW 5 Smt. Kamla. She is a neighbour of Sindhubai. She supported the prosecution version. In her cross examination she has stated that Ramesh was always saying to Sindhubai to leave the house and he also used to beat and abuse her. She also stated that when she reached near the house of Sindhubai, she was lying in the Verandah. She has denied the suggestion that she had not seen the incident and was making a false statement at the instance of one Bahua Rao, it is however, not indicated that as to why the witness would be deposing under Bahuarao's influence. The main criticism of the learned counsel for the appellant against PW-1 Umesh is that it is not natural that he would be staying with his sister. He is a child witness and has stated that he was told by his parents whatever he had to depose in the court. We don't find it unnatural that he could be staying with his sister prior to the date of incident. From the evidence on record it comes out that Ramesh the husband of Sindhubai and members of his family had been unhappy with her and they had been quarrelling with her. Prior to incident, Ramesh was staying at the house of parents of the deceased after he was got released from jail by her father. In such circumstances there would be nothing unnatural if the parents sent PW 1 Umesh also to be there with their daughter at her in-law's house. So far as the other criticism, that his father had told him whatever he had to depose in the court, it is to be noted that the witness has stated that he was interrogated by the police and his statement was recorded on the date of incident itself and that he was alone in the house since his parents had gone to Amravati Hospital. In case any different statement was given by the witness in Court it could very well be brought to the notice of the witness and he could be confronted with his previous statement. As indicated above he was alone at the house and his parents had gone to the Amravati Hospital. There is nothing to indicate that his parents had told him as to what was to be stated by him before his interrogation by the police. It is quite possible that at the time the proceedings took place in the Sessions Court, the parents in their anxiety may have said something to the witness but that would not affect his credibility since his previous statement recorded during investigation on the date of incident itself was available to confront him. Nothing has been brought in his cross examination that being aged about 12 years there was any infirmity in his understanding of the facts perceived and his ability to narrate the same correctly. As a matter of fact nothing such has been indicated to us on this behalf in the evidence. This observation shall also hold good in so far as the statement of PW 2 is concerned, since he was then studying in 8th standard. As a matter of fact a student of 8th standard, these days acquires sufficient understanding to perceive the facts and to narrate the same. Yet another criticism which has been vigorously made against the evidence of PW 2 and 5 is that according to their statements when they arrived near the house of Sindhubai they found her lying in Verandah. The arguments advanced on the basis of the said statements of the witnesses is that they had not seen the main incident but when arrived they had seen her lying in the Verandah, whereas, the incident must have taken place earlier. In this connection it is to be noted that PW 2 has stated that his house is about 50 ft. away from the house of Sindhubai. It cannot be said that the witness could not see the incident from a distance of fifty paces. It is difficult to comprehend as to what was meant by the question put to the witnesses as to when they had reached near the house of the deceased as they were not far away. They may have actually gone near the house of the deceased seeing the incident and may have seen her falling in the Verandah while a little away from her house. It does not mean that they did not see the incident from the place where even they were stationed when the incident took place. We therefore find no ground to discard the testimony of the three eye witnesses examined in the case nor on the ground that other persons who may have collected at the spot were not examined by the prosecution as it is not always possible. May be, it would have been better if some more persons who may have collected at the spot at the time of incident had been examined but their non examination will not as such erode the credibility of the testimony of the witnesses examined namely PW 2 and 5 and PW-1 Umesh the brother of the deceased who was present in the house itself. Everyone who collects at the time of such incident is not always readily available to depose in the Court. Learned counsel for the appellant has then urged that the dying declaration recorded by the police and the Magistrate cannot be relied upon on the ground that no medical certificate was appended about the condition of the deceased and her mental fitness to make the statement. In this connection it is to be noted that the police on arrival at the PHC recorded the statement of Sindhubai on the basis of which FIR and a criminal case was registered. Sindhubai died 5 days after her dying declaration was recorded by PW 7 Nanasaheb Naib Tahsildar, but certainly there is no certificate appended to the statement recorded by him containing the opinion of the doctor that she was in a fit mental state to give statement. It is unfortunate that we don't find anything on the record to indicate the general condition of the patient at the time she went to the PHC Warud or taken to Amravati Hospital. It is however important to note that she had gone to the PHC all alone, first by jeep, for some distance, which she had stopped and later by a Rickshaw to cover the remaining distance. It is nobody's case to the contrary that anyone may have taken her to the PHC. This itself speaks of her general condition. She must have been fit enough to go alone in the manner indicated above. We feel that in certain cases in peculiar facts and circumstances of their own, it may be possible and not against the rule of prudence to draw legitimate inference regarding mental condition of a person making a dying declaration as we find in the present case. Such circumstances can at least be used as supporting evidence about the mental condition along with other evidence available on record. The medical report prepared by PW 8 Dr. Anita and the post mortem report later says that she had 60 per cent burns and most of the area covered by burns was the legs and thighs of the deceased. There were some patches on chest, face and skull. These were second degree burns. It is nowhere indicated that her condition may have been serious or grave, and it has come in the statement of PW 7 Nana Sahib as well as PW 8 Dr. Anita that before recording the statement he had inquired about the condition of the injured and the Doctor had informed him that she was in a position to give the statement. The police had also recorded her statement soon after she arrived at the P H C on the basis of which FIR and criminal case was registered. Learned counsel for the appellant has referred to a decision reported in 1952 AIR SC 159 - Kashmira Singh Vs. State of Madhya Pradesh indicating that in India there is tendency on the part of the witnesses to rope in innocent people. He then refers to a decision reported in 1994 (Supp.) 2 SCC 539 Maniram Vs. State of M.P., it was also a case of bride burning by pouring kerosene oil.The case rested entirely on two dying declarations, the first dying declaration recorded by the Sub-Inspector in the nature of FIR and other one also recorded by the Sub-Inspector with an endorsement of the Tehsildar that the declarant was conscious. It was held that conviction could not be sustained on such dying declaration which did not inspire confidence and did not have the certificate of Doctor about the mental fitness of the declarant. On facts we find the case was entirely different, the present case is not solely resting on the dying declaration nor that the statement was not recorded by the Tehsildar, but only endorsed by him. It is though true that certificate of the doctor is not appended but the statement of the doctor and the Magistrate is there on the record to indicate that the declarant was in fit state of mind to give the statement. The other case referred to is reported in 1999 (7) SCC 691 Paparambaka Rosamma and Ors. Vs. State of A.P. It is also a case of death by burning. The burns were to the extent of 90 per cent, the case solely rested upon the dying declaration as such it has been held that it is necessary that the doctor certifies about the mental fitness of the declarant to give the statement. The learned counsel for the State has referred to a decision of this Court reported in 1999 (9) SCC 562 Koli Chunilal Savji and Anr. Vs. State of Gujarat where it has been held that doctor's endorsement as to the mental fitness of the deceased to make the declaration is only a rule of prudence. The ultimate test is truthful and voluntary nature of the declaration. It was further observed, on facts that the Executive Magistrate was a disinterested witness and a responsible officer and there was nothing to suspect that he had any animus against the accused or that he was interested in the matter in any manner. Learned counsel for the State Shri Arun Pednekar refers to a decision of the Constitution Bench decided on 27.8.2002 itself on a reference made in view of divergent observations made in two decisions of this Court by Three Judge Benches in the case of Paparambaka Rosamma (supra) and Koli Chunilal Savji (supra). The Constitution Bench in its decision in Criminal Appeal No.608 of 2001 Laxman versus State of Maharashtra has set the controversy at rest while holding as follows: "For the reasons already indicated earlier, we have no hesitation in coming to the conclusion that the observations of this Court in Paparmbaka Rosamma & Ors. vs. State of Andhra Pradesh 1999 (7) SCC 695 to the effect that ".in the absence of a medical certificate that the injured was in a fit state of mind at the time of making the declaration, it would be very much risky to accept the subjective satisfaction of a magistrate who opined that the injured was in a fit statement of mind at the time of making a declaration" has been too broadly stated and is not the correct enunciation of law. It is indeed a hyper-technical view that the certification of the doctor was to the effect that the patient is conscious and there was certification that the patient was in a fit state of mind specially when the magistrate categorically stated in his evidence indicating the question he had put to the patient and from the answers elicited was satisfied that the patient was in a fit state of mind where-after he recorded the dying declaration. Therefore, the judgment of this court in Paparambaka Rosanuna & Ors. vs. State of Andhra Pradesh 1999 (7) SCC 695 must be held to be not correctly decided and we affirm the law laid down by this Court in Koli Chunilal Savji & Anr vs. State of Gujarat 1999 (9) SCC 562 case." However as indicated earlier the case in hand does not solely rest upon dying declaration; the eye-witness account is also available. We have already considered the statement of eye- witnesses and we find that the trial court and the High Court committed no error in relying upon their statements. Learned counsel for the appellant has, however, submitted that name of Venubai is not mentioned in the dying declaration recorded by the Magistrate. In her dying declaration while mentioning about the incident said to have taken place on 12.3.1992 Sindhubai has stated about her mother-in-law (Venubai) along with others having beat and poured kerosene oil on her but in regard to the incident in question which took place on 17.3.1992, the role of pouring the kerosene oil is assigned only to Lakshmi and there is no mention of the name of Venubai nor any role is assigned to her. In our view this entitles Venubai of benefit of doubt. In the result the Criminal Appeal No. 663 of 2001 preferred on behalf of Dhanraj, Subhash and Sukhdeo has no merit and it is accordingly dismissed. The Criminal Appeal No. 867 of 2001 is allowed and the appellant Smt. Venubai Kelnako Raut is given benefit of doubt and she is acquitted of all the charges.She shall be released forthwith unless wanted in any other case.

Author: B Kumar

Dhanraj And Others, Smt. Venubai ... vs State Of Maharashtra on 16 September, 2002

Supreme Court of India

Gujarat High Court Case Information System Print CR.MA/9907/2011 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 9907 of 2011 ========================================================= PARESH SHANKARBHAI MAKWANA - Applicant(s) Versus STATE OF GUJARAT - Respondent(s) ========================================================= Appearance : MR ASHISH M DAGLI for Applicant(s) : 1, MRS. MANISHA L. SHAH, ADDL. PUBLIC PROSECUTOR for Respondent(s) : 1, MS. HETVI SANCHETI for the Complainant ========================================================= CORAM : HONOURABLE MR.JUSTICE ANANT S. DAVE Date : 15/07/2011 ORAL ORDER Learned Advocate for the petitioner seeks permission to withdraw this petition at this stage, as the charge-sheet is not filed. Permission as prayed for is granted. In view of the above, this petition is disposed of as withdrawn. Sd/- (Anant S. Dave, J.) Caroline     Top

Author: Anant S. Dave,

Paresh vs State on 15 July, 2011

Gujarat High Court

[Section 80HHA(8)(b)(3)] [Section 80HHA(8)(b)] [Section 80HHA(8)] [Section 80HHA] [Complete Act]

Central Government Act

Court No. - 5 Case :- WRIT - B No. - 3945 of 2010 Petitioner :- Raj Bahadur Respondent :- D.D.C. & Others Petitioner Counsel :- S.C. Shukla Respondent Counsel :- C.S.C.,M.N. Singh,Santosh Kumar Singh Hon'ble Sabha°eet Yadav,J. One week's time is allowed to petitioner for taking step. List after six weeks. Till the next date of listing, interim order granted earlier by this Court is extended. Order Date :- 7.7.2010 Kamlesh Maurya

Raj Bahadur vs D.D.C. & Others on 7 July, 2010

Allahabad High Court