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ORDER Srinivasan, J. 1. The revision petition is filed by the Trust, which is the landlord. The petition for eviction has been filed on the ground of wilful default in payment of rent. The matter was posted for trial to 14.12.1993. The tenant did not appear, nor did his counsel appear in Court. The Rent Controller passed an order of eviction after recording the evidence of the landlord. The tenant filed I.A. No. 145 of 1994 for setting aside the said order. 2. In the affidavit filed in support of the application, the reason given by him for non-appearance on 14.12.1993 is that he was suffering from acid peptic disease and taking treatment under a doctor K.P. Kannappan from 12.12.1993 to 19.12.1993. It is further stated that he was bed ridden and could not move about. Consequently, he could not appear in Court nor instruct his counsel. The application was filed on 3.1.1994. The application was contested by the petitioner herein. In the counter affidavit, it was clearly stated that the case of illness put forward by the tenant was false and the medical certificate produced by the tenant along with this application should be proved by examining the doctor. 3. The Rent Controller found that the tenant has failed to prove his illness or his inability to attend court on 14.12.1993. The Rent Controller also pointed out that even the counsel for the tenant did not appear before the Court, and that there was an earlier occasion in which also, the tenant allowed the proceeding to be decided ex parte. The Rent Controller further pointed out that the tenant did not enter the witness box to speak in support of his alleged illness. Consequently, the petition was dismissed. 4. The tenant filed appeal in R.C.A. No. 8, of 1995, Appellate Authority held that there was no necessity to examine the doctor to prove the medical certificate and it can be used as evidence without any oral evidence whatever. For that, the Appellate Authority placed reliance on a Judgment of this Court in Lakshmanan v. Ellammal, 1978 (91) L.W. 486. Further, the Appellate Authority held that whatever may be the number of occasions on which the tenant remained ex parte, the only question to be considered by the Court was whether he satisfied the Court as to the sufficiency of the cause for his non-appearance on the particular date. In that view, the Appellate-Authority allowed the appeal and set aside the ex parte order. Aggrieved thereby, the trust has preferred this revision petition. 5. Learned counsel for the petitioner rightly points out that there is absolutely no evidence on record to prove that the tenant was suffering from illness and he could not attend court on 14.12.1993. If at least the tenant had entered the witness box and spoken about his illness, the Court could have considered the same and taken into account the medical certificate as corroborating the version of the tenant. Without any oral evidence, the Court cannot accept the medical certificate as evidence by itself and proceed to pass orders on that footing. 6. The ruling in Lakshmanan v. Ellammal, 1978 (91) L.W.486 has no application to the facts of this case. That arose under Order 26 of the Code of Civil Procedure, in which an application was filed for the appointment of a Commissioner to record the evidence of the plaintiff therein. The plaintiff stated that he was aged 76 and on account of illness he was unable to attend Court. He produced a medical certificate from a registered Medical Practitioner to support his version. That application was dismissed by the trial court and the order of the trial court was challenged before this Court. The Court referred to the provisions of Order 26, Rule 1, C.P.C. and the Explanation thereto. The Proviso and the Explanation to the Rule were introduced by Civil Procedure Code Amending Act 104 of 1976. Under the Explanation, the Court is enabled for the purpose of that Rule to accept a certificate purporting to be signed by a registered Medical Practitioner, as evidence of sickness or infirmity for that person, without calling the Medical Practitioner as a witness. As the Explanation itself makes it clear, the provisions contained therein can be utilised only for the purpose of that Rule viz. Order 25, Rule 1, C.P.C., when the party applies to the Court and the Court can direct the party to be examined by a Commissioner. Relying on the said provision, this Court held that there was no necessity, in that case to examine the medical practitioner as a witness in order that the Court may accept the certificate of the medical practitioner, as evidence. That ruling cannot help the tenant in this case. 7. It has been repeatedly held by this Court that exparte decrees cannot be set aside on vague allegations that the defendant was ill. It is for the defendant to prove that he was so ill on the particular day that he could not attend Court. Until then, it could not be said that there was sufficient cause for his non-appearance. Without proving the sufficient cause to the satisfaction of the Court, no person can claim to have the exparte decree set aside. In this connection, the ruling of this Court in Arukkani Ammal v. Guruswamy, 1987 (1) M.L.J. 32 : 100 L.W. 707 can be looked into. The learned Chief Justice has laid down the proposition that ex parte decrees cannot be set aside on value allegations of illness. 8. In this case, the Rent Controller was not satisfied with the fact that the tenant was so ill as to disable him from attending Court on 14.12.1993. That conclusion is correctly taken, in view of the fact that there is absolutely no evidence on record to prove the alleged illness of the tenant. The Appellate Authority is, therefore, in error in reversing the conclusion of the trial court without properly appreciating the reasoning of the trial Court. The Appellate Authority has proceeded on a wrong impression that the trial court has dismissed the application only because it was a second application on the part of the tenant to set aside the ex parte decree. The Appellate Court has failed to note that the mere production of the certificate alleged to have been issued by a doctor, will not prove the illness of the party, unless the party himself gets into the witness box and speak about the same. 9. In the circumstances, the order of the Appellate Authority deserves to be set aside. Consequently, the Civil Revision is allowed, the order in R.C.A, No. 8 of 1995 is set aside and the order of the Rent Controller I.A. No. 145 of 1994 in R.C.O.P. No. 363 of 1987 is restored. There will be no order as to costs.

Author: Srinivasan

Sri Pillaiyarpatti Karpaga ... vs R.M. Sevagan Chettiar on 25 January, 1996

Madras High Court

Gujarat High Court Case Information System Print SCA/1224/2010 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 1224 of 2010 =================================== MANEKALAL DINANATH PATEL PRESIDENT OF DHARATI VIKAS & 3 - Petitioners Versus HARGOVINDBHAI T PATEL & 11 - Respondents =================================== Appearance : MR JIGAR M PATEL for Petitioners. NOTICE SERVED for Respondents. =================================== CORAM : HONOURABLE MR.JUSTICE K.A.PUJ Date : 09/04/2010 ORAL ORDER Having heard learned advocates appearing for the parties and having gone through the documents produced before the Court, the Court is of the view that the matter requires consideration. Hence, RULE. Ad-interim relief granted earlier is continued till the final disposal of this petition. Since the petition is admitted, contempt proceedings are also required to be stayed and hence, they are stayed. Sd/- [K. A. PUJ, J.] Savariya     Top

Author: K.A.Puj,&Nbsp;

Manekalal vs Hargovindbhai on 9 April, 2010

Gujarat High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA CR. APP (DB) No.381 of 2011 Raushan Thakur Versus The State Of Bihar ----------- 4 28.06.2011 This appeal is admitted for hearing. Call for the lower court records. The prayer for bail of the appellant shall be considered after receipt of lower court. ( Shyam Kishore Sharma, J.) Namita ( Rajendra Kumar Mishra, J.)

Raushan Thakur vs The State Of Bihar on 28 June, 2011

Patna High Court - Orders

Court No. - 37 Case :- WRIT TAX No. - 503 of 2010 Petitioner :- Sandeep Mishra Respondent :- State Of U.P. And Others Petitioner Counsel :- Raj Kumar Singh Respondent Counsel :- C.S.C. Hon'ble Ra°es Kumar,J. Hon'ble Anil Kumar J. Four weeks further time is allowed to file the counter affidavit. Rejoinder affidavit may be filed within two weeks thereafter. List thereafter. Interim order, if any, shall continue till the next date of listing. Order Date :- 9.7.2010 RaVi/-

Sandeep Mishra vs State Of U.P. And Others on 9 July, 2010

Allahabad High Court

Gujarat High Court Case Information System Print SCA/12846/2009 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 12846 of 2009 ===================================== KAVITABEN KETANBHAI ACHARYA AS GUARDIAN AND NEXT FRIEND OF - Petitioner(s) Versus KETANBHAI HARIKRISHNA ACHARYA - Respondent(s) ===================================== Appearance : MR BJ TRIVEDI for Petitioner(s) : 1,MR JT TRIVEDI for Petitioner(s) : 1,MS JIGNASA B TRIVEDI for Petitioner(s) : 1, NOTICE SERVED for Respondent(s) : 1, MS AMRITA AJMERA for Respondent(s) : 1, ===================================== CORAM : HONOURABLE MR.JUSTICE RAVI R.TRIPATHI Date : 03/05/2010 ORAL ORDER1.0 The learned advocate Mr. Trivedi for the petitioner states that the petitioner is in service as on today. According to information available to the learned advocate for the petitioner, the husband respondent herein, is a builder and he is Engineer by qualification and he is earning handsome amount. 2.0 The learned advocate Ms. Ajmera for the respondent to produce on record the Health and Income status as on today of the respondent. The matter is adjourned to 7th May 2010. [ Ravi R. Tripathi, J. ] hiren     Top

Author: Ravi R.Tripathi,&Nbsp;

Kavitaben vs Ketanbhai on 3 May, 2010

Gujarat High Court

> Title: Regarding passing of the Citizenship (Amendment) Bill, 2005 by the Rajya Sabha, at its sitting held on the 29th July, 2005.   12.12 hrs.   SECRETARY-GENERAL: Sir, I have to report the following message received from the Secretary-General of Rajya Sabha. “In accordance with the provisions of rule 111 of the Rules of Procedure and Conduct of Business in the Rajya Sabha, I am directed to enclose a copy of the Citizenship (Amendment) Bill, 2005 which has been passed by the Rajya Sabha at its sitting held on the 29th July, 2005. ”               Sir, I lay on the Table the Citizenship (Amendment) Bill, 2005, as passed by Rajya Sabha on the 29th July, 2005. MR. SPEAKER: Compliments to you on your maiden intervention. -------------  

Regarding Passing Of The Citizenship (Amendment) Bill, 2005 By The ... on 2 August, 2005

Lok Sabha Debates

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 17.9.2010 C O R A M The Honourable Mr.Justice P.JYOTHIMANI C.A.Nos.1937 to 1939 of 2003, 1748 and 1749 of 2005 in C.A.No.63 of 2001, C.A.No.185 of 2006 in C.A.No.1937 of 2003 in C.A.No.63 of 2001, and C.A.Nos.301 to 303, 308 and 309, 319 and 320 of 2006 in C.P.No.57 of 1998, C.A.Nos.625 and 626 of 2005 in C.A.No.63 of 2001, C.A.No.307 of 2006 in C.P.No.57 of 1998, C.A.No.624 of 2005 in C.A.63 of 2001, and C.A.Nos.688 to 690 of 2006 in C.P.No.57 of 1998 ORDER : P.JYOTHIMANI,J. (FIRST BATCH) C.A.Nos.1937 to 1939 of 2003, 1748 and 1749 of 2005 in C.A.No.63 of 2001, C.A.No.185 of 2006 in C.A.No.1937 of 2003 in C.A.No.63 of 2001, and C.A.Nos.301 to 303, 319 and 320 of 2006 in C.P.No.57 of 1998 These applications are relating to the various lands situated in Medak District, Andhra Pradesh stated to belong to the assets of the company, namely Maxworth Orchards India Limited (for brevity, "the Company"). The said company, against which Company Petition in C.P.No.57 of 1998 is filed for winding up on 24.2.1998, was incorporated with the main object of acquiring by purchase, lease, concession, grant, licence or otherwise lands and cultivate, grow, produce or deal in any plantation, agricultural crops, vegetables, fruits and fruit products, trees of all kinds and own, manage and sell the same both in India and abroad; selling land with or without trees, plants, agricultural, floricultural and horticultural produce in all its forms and selling trees, plants, agricultural, horticultural, floricultural produce with or without lands, fell, harvest and remove partially or fully and market the same either in wholesale or retail in India or abroad; assisting any person in procuring land and rendering all services as lessees, managers, agents, consultants and advisors and to develop them to make suitable for cultivation of agricultural crops, plantations, forestry, horticultural and floricultural and to render services to any person in procuring finance from banks, financial institutions, provide all types of management services for developing the land and operating farms; and acting as an export house for all kinds of produce, including agricultural, horticultural and floricultural, dairy, poultry and farm products, including food grains, cereals, seeds, oil, oil seeds, plant, flowers, vegetables, fruits and edible oils, meat, fish, eggs and food and food products and preparation of any nature. 2. The company is stated to have brought during the course of its business within its possession approximately 20000 Acres of land and thousands of customers have invested in the plantations and they in turn have been given piece of land and the company undertook to maintain the land by entering into separate maintenance agreements with the customers. 3. The petitioner in C.P.No.57 of 1998, M/s.EPC Industries Limited, Mumbai, with whom the company is stated to have entered into an agreement for supply of Drip Irrigation System and which is stated to have sold the pipes to the company, raised a bill for ` 2,22,96,465.54, out of which ` 1,70,93,353.60 is stated to have been paid and there is a balance amount of ` 52,01,910.26 payable and when the petitioner in C.P.No.57 of 1998 issued a statutory notice on 2.12.1997, the letter came to be returned as the company is stated to have closed its registered office at Karumuthu Centre, Chennai. It was in those circumstances, the above company petition came to be filed for winding up. 4. Pending admission of the said company petition, Mr.K.Alagiriswami, learned Senior Counsel was appointed as an Administrator of the company on 12.2.2001 and subsequently, by an order dated 6.2.2006 passed in C.A.No.353 of 1998, he came to be appointed as a Provisional Liquidator. 5. In the meantime, the company petition which was filed on 24.2.1998 came to be admitted by this Court on 14.2.2003 with a direction to effect publication in "India Today" and "Makkal Kural", while dispensing with gazette notification. However, the Official Liquidator was not appointed as Provisional Liquidator and the assets of the company were not taken over by the Official Liquidator. 6. Originally, even after filing of the company petition in the year 1998 and when it was not admitted, the company was represented by a counsel and during that time a scheme of revival by the unsecured creditors came to be filed before this Court for approval in C.A.No.63 of 2001 and it was in that application the Administrator came to be appointed on 12.2.2001 and after the Administrator took charge, he has been overseeing the functions of the Board of Directors of the company and has been taking steps to protect the interest of various creditors of the company. It is stated that the said scheme did not go through at all. In the meantime, it is seen that another scheme was placed before this Court in C.P.No.119 of 2007, in supersession of the scheme in C.A.No.63 of 2001 and that came to be rejected in the dismissal of the said company petition by this Court on 5.3.2008, against which Original Side Appeal is stated to have been filed. 7. The first respondent (P.Ananthalakshmi), as it is seen in the records of the company produced by the learned Administrator, was transferred from the Land Acquisition Department of the company to the Legal Department with effect from 2.1.1996 and designated as a Legal Executive of the company. She is stated to have executed a sale deed on 17.3.2003 in favour of the second respondent (Koduru Venkateswara Prasad) selling an extent of 24 Acres of land at Kollur Village and Osmannagar Village, Medak District, Andhra Pradesh. The said sale deed executed by her, which was also registered, shows that it was executed by her in individual capacity and the recital shows as if she has purchased the property in her name under an earlier sale deed dated 16.11.1995. The portion of the recital, which is relevant for the purpose of these applications, is as follows: "WHEREAS the VENDOR is/are in exclusive possession, enjoyment and absolute owner of Agricultural Dry Land bearing Survey No.191, admeasuring area Ac.15-29 Gts., Kollur Village, Ramachandrapuram Mandal, UNDER G.P.KOLLUR, Medak District, A.P., MPP R.C.PURAM, and Survey No.30, admeasuring area Ac.8-11 Gts., situated at OSMANNAGAR VILLAGE, thus total admeasuring area Ac.24-00 Gts., or 9.72 Hectors, Ramachandrapuram Mandal and G.P., Medak District. A.P., MPP R.C.PURAM, has purchased the said above property through a Registered SALE DEED Vide Document No.5109 of 1995 of Book I, Dated 16th day of November, 1995 Registered at R.O.Sangareddy, Medak District, A.P., having Patta Pass Book bearing No.s.Y-439637/502 and Y-294108/19 both are issued by MRO R.C.PURAM, Medak District, A.P., RESPECTIVELY." 8. In the counter affidavit filed by the first respondent (P.Ananthalakshmi) dated 22.12.2003 before this Court, she has stated that as per the terms of her appointment with the company, the job profile entailed her to enter into agreements with land owners and it is based on the same she has entered into such agreements in respect of those lands and the lands were purchased by the company in her name during her tenure. The following is the relevant passage from her counter affidavit: "8. In reply to para 9 of the Memo, I submit that service terms with the applicant company when I was under their employment called for a job profile which entailed entering into agreements with land owners, and as such these agreements were entered into by me with the sole purpose of fulfilling the duties assigned to me by the applicant company. The lands purchased were registered by the applicant company in my name during my tenure as an (sic) emphatically assert that I have been unnecessarily dragged into this controversy, and from the fact that the administrator himself says so it is apparent that he was at least aware that I am not in any way involved. I being dragged into this controversy and being required to undergo mental trauma and severe disruption of my normal life, as also the fact that I had to repeatedly interact with counsel and expend monies, is a matter which I take seriously. I place on record that I intend to proceed legally against any and all those who may be found responsible for having thus involved me in these and any other proceedings without legal justification, what I am going through." 9. In the said affidavit, while the first respondent (P.Ananthalakshmi) has stated that she was holding the power on behalf of the company, she has categorically stated that she has not entered into any transaction and registered the document in the office of the Sub Registrar, Sangareddy. 10. It is stated that the fourth respondent (M/s.Vajra Farms and Engineers), represented by its Power Agent  Sri Raghujie has executed a sale deed dated 17.3.2003 in favour of second respondent (Koduru Venkateswara Prasad) in respect of an extent of 3 Acres in Kollur Village and Osmannagar Village, Medak District, Andhra Pradesh. The description of the property which was sold is as follows: "Agricultural Dry Land bearing Survey No.191, admeasuring area Ac.0-11 Gts. Kollur Village, Ramachandrapuram Mandal, UNDER G.P.KOLLUR, Medak District. A.P., MPP R.C.PURAM, and Survey No.30, admeasuring area Ac.2-29 Gts., situated at OSMANNAGAR VILLAGE, thus total admeasuring area Ac.3-00 Gts., or 1.21 Hectors, Ramachandrapuram Mandal and G.P., Medak District. Ap.P., MPP. R.C.PURAM, Z.P.P. Medak at Sangareddy, Registration Sub-District Sangareddy, Registration District Medak at Sangareddy." 11. The second respondent (Koduru Venkateswara Prasad), having purchased the said land, in his turn has sold the said 3 Acres along with the other extent under a registered sale deed dated 13.8.2003 to the third respondent (Sunkara Venkateswara Rao). He has also sold another extent of 18 Acres of land to the third respondent. Thus, under three sale deeds dated 13.8.2003, viz., Document Nos.7314 to 7316 of 2003, the second respondent has sold the total extent of 21 Acres of land purchased from respondents 1 and 4, as stated above, to the third respondent. 12. All these sale deeds are sought to be set aside in these applications by the learned Administrator on the ground that the sales are relating to the lands of the company after filing of the winding up petition, which was on 24.2.1998, and which came to be admitted on 14.2.2003, and therefore, they are null and void. It is also stated by the learned Administrator that on coming to know about the clandestine attitude of the respondents in intentionally attempting to alienate the properties of the company under liquidation, he has moved an application in C.A.No.740 of 2003 praying for an order of injunction restraining the respondents therein from alienating lands purchased by the company with the funds of the company and also for a direction to the Administrator to effect publication of such order in leading local dailies. An order of injunction was granted by this court on 24.4.2003, which was extended until further orders by a subsequent order dated 18.11.2003. 13. It is the case of the learned Administrator that in spite of the order of injunction which has been widely advertised in various newspapers, the sales have been effected. The said factum of the sale was revealed only when the learned Administrator visited the spot in Andhra Pradesh with regard to sale of another property of the company and immediately, the learned Administrator has obtained the registered copies of those documents. 14. It is the case of the learned Administrator that the first respondent had no independent right to act except to act on behalf of the company and the sale effected is fraudulent and with an intention of defrauding the company, the first respondent had conspired with the second respondent. Public notices were issued on behalf of the purchasers in Deccan Chronicle by an advocate  P.K.Ramesh regarding the sale of the 27 Acres of land, about which objection was made on behalf of the company by V.R.Alva, Advocate, High Court of Andhra Pradesh. 15. It is the further case of the learned Administrator that nobody has a title or power to sell the property of the company after the company petition was filed for winding up and the sale deeds do not convey any title to the purchasers. It is stated that the second respondent has involved in dubious transactions in collusion with another then employee of the company, Sri Ravi Babu, by fabricating the documents and sold some other lands of the company in Siddhavaram, about which, on behalf of the company, criminal prosecution has been launched. 16. With the above said averments, the learned Administrator has filed these applications for setting aside the sale deeds dated 13.8.2003 registered as Document Nos.7314 to 7317 of 2003 on the file of the District Registrar of Medak District at Sangareddy; sale deeds dated 17.4.2003 registered as Document Nos.2409 and 2410 of 2003 on the file of the Sub Registrar Office, Sanga Reddy; sale deed dated 16.11.1995 registered as Document No.5109 of 1995 by which the first respondent has purchased the property from her vendor to the extent of 24 Acres; and also for a consequential order of injunction restraining the respondents from in any manner interfering with the possession of the applicant company or dealing with it in any manner, including creating any further encumbrance with the properties mentioned therein. 17. The third respondent (Sunkara Venkateswara Rao) filed C.A.No.185 of 2006 to vacate the order of injunction granted by this Court on 25.11.2003 in C.A.No.1937 of 2003 in C.A.No.63 of 2001. 18. It is the case of the respondents that the sale deeds executed by the first respondent (P.Ananthalakshmi) in favour of the second respondent dated 17.3.2003 in respect of 24 Acres of land were executed in her individual capacity and there is nothing to presume that the said property belongs to the company and even if there was an order of injunction, it does not bind the first respondent to sell away her individual property, which she has purchased earlier under the sale deed dated 16.11.1995. It is the further case of the respondents that the first respondent (P.Ananthalakshmi) has never acted as General Power of Attorney of the company and she was the absolute owner of the property having purchased the same long prior to the initiation of the proceedings for revival of the company in C.A.No.63 of 2001. 19. It is the case of the respondents, as submitted by Mr.P.Jayaraman, learned Senior Counsel, that no General Power of Attorney document was produced before this Court and it is not known whether such power of attorney was a registered document and inasmuch as the original documents are with the respondents, there is no need to interfere with the said sales. 20. It is his submission that in the absence of any document produced by the learned Administrator to the effect that the property belonged to the company or that the company by a resolution of the Board of Directors has authorised the first respondent as a General Power of Attorney, even if the first respondent has played fraud on the company, it is for the company to take action only against the first respondent and insofar as the other respondents, they are the bonafide purchasers. Even the purchase by the first respondent (P.Ananthalakshmi) in the year 1995 was not as a General Power of Attorney of the company, the purchase by the third respondent was only after giving public notice. 21. It is the case of the respondents, as submitted by the learned Senior Counsel, that even the application filed by the Administrator in I.A.No.217 of 2005 in O.S.No.71 of 2004 on the file of the Principal Junior Civil Judge Court, Sangareddy to implead himself as a party came to be dismissed on 25.1.2006, on the basis of the recital in the document No.5109 of 1995, dated 16.11.1995 and therefore, the same is contrary to the contention of the learned Administrator. 22. It is his contention that by applying the provisions of the Benami Transactions (Prohibition) Act, 1988, even assuming that the first respondent has acted as benami on behalf of the applicant company, that does not take away the right of the first respondent inasmuch as the property has been purchased in the name of the first respondent in her individual capacity and the first respondent has never acted as a trustee of the properties of the company and therefore, these applications are liable to be dismissed. 23. Section 536 of the Companies Act, 1956 (for brevity, "the Act"), which avoids certain transfers after commencement of winding up proceedings, is as follows: "Section:536. Avoidance of transfers, etc., after commencement of winding up.- (1) In the case of a voluntary winding up, any transfer of shares in the company, not being a transfer made to or with the sanction of the liquidator and any alteration in the status of the members of the company made after the commencement of the winding up, shall be void. (2) In the case of a winding up by or subject to the supervision of the Court, any disposition of the property (including actionable claims) of the company, and any transfer of shares in the company or alteration in the status of its members, made after the commencement of the winding up, shall unless the Court otherwise orders, be void." and it no doubt contemplates that any disposition made after commencement of the winding up proceedings be void unless the Court otherwise decides. 24. Likewise, Section 537 of the Act, which is as follows, also contemplates avoidance of certain attachments, executions, etc., in winding up proceedings. "Section: 537. Avoidance of certain attachments, executions, etc., in winding up by or subject to the supervision of Court:- (1) Where any company is being wound up by or subject to the supervision of the Court:- (a) any attachment, distress or execution put in force, without leave of the Court, against the estate or effects of the company, after the commencement of the winding up; or (b) any sale held, without leave of the court, of any of the properties or effects of the company after such commencement, shall be void. (2) Nothing in this section applies to any proceedings for the recovery of any tax or impost or any dues payable to the Government." 25. While explaining about the commencement of the winding up by Court, Section 441 of the Act, which is as follows: "Section: 441. Commencement of winding up by Court.- (1) Where, before the presentation of a petition for the winding up of a company by the Court, a resolution has been passed by the company for voluntary winding up, the winding up of the company shall be deemed to have commenced at the time of the passing of the resolution, and unless the Court, on proof of fraud or mistake, thinks fit to direct otherwise, all proceedings taken in the voluntary winding up shall be deemed to have been validly taken. (2) In any other case, the winding up of a company by the Court shall be deemed to commence at the time of the presentation of the petition for the winding up." especially in sub-section (2) states that the winding up shall be deemed to have commenced from the date of presentation of the petition for winding up. On the facts of the present case, the winding up petition was presented on 24.2.1998. 26. Section 450 of the Act, while explaining about the appointment and powers of the Provisional Liquidator, states as follows: "Section: 450. Appointment and powers of provisional liquidator. (1) At any time after the presentation of a winding up petition and before the making of a winding up order, the Court may appoint the Official Liquidator to be liquidator provisionally. (2) Before appointing a provisional Liquidator, the Court shall give notice to the company and give a reasonable opportunity to it to make its representations, if any, unless, for special reasons to be recorded in writing, the Court thinks fit to dispense with such notice. (3) Where a provisional liquidator is appointed by the Court, the Court may limit and restrict his powers by the order appointing him or by a subsequent order, but otherwise he shall have the same powers as a liquidator. (4) The Official Liquidator shall cease to hold office as provisional liquidator, and shall become the liquidator, of the company, on a winding up order being made." Accordingly, when a petition for winding up is presented, it is open to the Court to appoint Official Liquidator to be a Provisional Liquidator pending the winding up order. Of course, for such appointment, the procedure contemplated is notice to be given to the company. While appointing the Official Liquidator as Provisional Liquidator, the Company Court can impose specific powers and in the absence of such powers specifically explained, the general powers of the liquidator as contemplated under Section 451 of the Act would apply. But when once the winding up order has been made, the Official Liquidator appointed by the Court as a Provisional Liquidator ceases to be a Provisional Liquidator and he will become the liquidator of the company with all powers vested on him under Section 451 of the Act, which is as follows: "Section: 451. General provisions as to liquidators. (1) The liquidator shall conduct the proceedings in winding up the company and perform such duties in reference thereto as the Court may impose. (2) Where the Official liquidator becomes or acts as liquidator, there shall be paid to the Central Government out of the assets of the company such fees as may be prescribed. (3) The acts of a liquidator shall be valid, notwithstanding any defect that may afterwards be discovered in his appointment or qualification: Provided that nothing in this sub-section shall be deemed to give validity to acts done by a liquidator after his appointment has been shown to be invalid." 27. It is no doubt true that under Section 446 of the Act, which is as follows: "Section: 446. Suits stayed on winding up order. (1) When a winding up order has been made or the Official Liquidator has been appointed as provisional liquidator, no suit or other legal proceeding shall be commenced, or if pending at the date of the winding up order, shall be proceeded with, against the company, except by leave of the Court and subject to such terms as the Court may impose. (2) The Court which is winding up the company shall, notwithstanding anything contained in any other law for the time being in force, have jurisdiction to entertain, or dispose of- (a) any suit or proceeding by or against the company; (b) any claim made by or against the company (including claims by or against any of its branches in India); (c) any application made under section 391 by or in respect of the company; (d) any question of priorities or any other question whatsoever, whether of law or fact, which may relate to or arise in course of the winding up of the company, whether such suit or proceeding has been instituted, or is instituted, or such claim or question has arisen or arises or such application has been made or is made before or after the order for the winding up of the company, or before or after the commencement of the Companies (Amendment) Act, 1960 (65 of 1960). (3) Any suit or proceeding by or against the company which is pending in any Court other than that in which the winding up of the company is proceeding may, notwithstanding anything contained in any other law for the time being in force, be transferred to and disposed of by that Court. (4) Nothing in sub-section (1) or sub-section (3) shall apply to any proceeding pending in appeal before the Supreme Court or a High Court." after the winding up order has been made or the Official Liquidator is appointed as a Provisional Liquidator after filing of the petition for winding up, no suit or any other legal proceedings pending in any other Court shall be proceeded with and the Company Court shall have jurisdiction to decide those matters. 28. Section 449 of the Act, which is as follows: "Section: 449. Official Liquidator to be liquidator. On a winding up order being made in respect of a company, the Official Liquidator shall, by virtue of his office, become the liquidator of the company." also makes it mandatory that on the winding up order having been made, the Official Liquidator shall be the liquidator of the company. On the facts of the present case, as elicited above, even though the company petition was filed for winding up on 24.2.1998, the winding up order has not been passed so far and therefore, the appointment of the Administrator for administering the company during the pendency of the proceedings for winding up is well within the powers of the Company Court, especially as per Rule 9 of the Companies (Court) Rules, 1959, which is as follows: "Rule 9. Inherent powers of Court.- Nothing in these Rules shall be deemed to limit or otherwise affect the inherent powers of the Court to give such directions or pass such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court" 29. The appointment of the Official Liquidator compulsorily as a liquidator comes to operation only after the winding up order is passed by the Company Court and till such order is passed it is the discretion of the Company Court either to appoint the Official Liquidator as Provisional Liquidator or to make the Administrator to administer the affairs of the company. On the facts of the present case, even though it is true that the Administrator came to be appointed on 12.2.2001, subsequently by an order dated 6.2.2006 passed in C.A.No.353 of 1998 this Court appointed the Administrator as Provisional Liquidator, such appointment cannot take away the powers of the Administrator to administer the affairs of the company and therefore, one cannot raise a technical objection, pending passing of the final order of winding up if the Company Court desires to appoint a Provisional Liquidator, it can only be an Official Liquidator. In such event, if the Company Court desires to appoint a Provisional Liquidator before passing the order of winding up, it is certainly a healthy trend that the Official Liquidator should be appointed as a Provisional Liquidator. But, it does not take away the powers of the Company Court to appoint any other person like Administrator as a Provisional Liquidator, in which event he will have the restricted powers of the Administrator under the supervision and control of the Company Court. Be that as it may, on the facts of the present case, these applications have been filed by the learned Administrator only as an Administrator and not as a Provisional Liquidator, as it is seen from the records. 30. Now coming to Section 536 of the Act regarding the avoidance of transfers and declaring the transfers effected after the commencement of winding up proceedings as void, the same is based on the celebrated concept that when once it is brought to the notice of the Company Court about the insolvent status of the company, immediately the Company Court thinks in terms of protection of the creditors and contributories of such company and that is why, in order to protect them, the transactions are sought to be interfered with by operation of law. But that prohibition does not take away the powers of the Company Court to uphold certain transactions which after scrutinizing with the judicious mind are found to be genuine transactions. Therefore, the said section, in my considered view, cannot be held to be a total bar on all transactions and the same is subject to judicial scrutiny by the Company Court with power to approve certain transactions as bonafide based on the facts and circumstances. 31. Again, it is not as if on presenting a petition for winding up all the transactions of the company should come to a standstill. While after the winding up order is passed the transactions contrary to the order become void, the transactions effected from the date of filing of the petition for winding up till the actual date of order of winding up are subject to the judicial scrutiny by the Company Court and the transactions cannot be held to be void ab initio and the void nature of such transactions can be decided only on passing the order for winding up. 32. Even though under Section 536(2) of the Act the Company Court can permit any transactions which are bonafide after the filing of the petition till the winding up order is passed, such power is available to the Company Court even in respect of avoidance of a transfer effected one year before the presentation of the petition for winding up or passing of resolution for voluntary winding up or six months before the commencement of winding up, as per Sections 531 and 531A of the Act, which are as follows: "Section: 531. Fraudulent preference. - (1) Any transfer of property, movable or immovable, delivery of goods, payment, execution or other act relating to property made, taken or done by or against a company within six months before the commencement of its winding up which, had it been made, taken or done by or against an individual within three months before the presentation of an insolvency petition on which he is adjudged insolvent, would be deemed in his insolvency a fraudulent preference, shall in the event of the company being wound up, be deemed a fraudulent preference of its creditors and be invalid accordingly: Provided that, in relation to things made, taken or done before the commencement of this Act, this sub-section shall have effect with the substitution, for the reference to six months, of a reference to three months. (2) For the purposes of sub-section (1), the presentation of a petition for winding up in the case of a winding up by or subject to the supervision of the Court, and the passing of a resolution for winding up in the case of a voluntary winding up, shall be deemed to correspond to the act of insolvency in the case of an individual. Section: 531A. Avoidance of voluntary transfer. - Any transfer of property movable or immovable, or any delivery of goods, made by a company, not being a transfer or delivery made in the ordinary course of its business or in favour of a purchaser or encumbrancer in good faith and for valuable consideration, if made within a period of one year before the presentation of a petition for winding up by or subject to the supervision of the Court or the passing of a resolution for voluntary winding up of the company, shall be void against the liquidator." 33. The contention of the learned Senior Counsel for the respondents, Mr.P.Jayaraman, that the first respondent (P.Ananthalakshmi) never acted as a General Power of Attorney and there is no record to show that she acted as a trustee of the company and therefore, the sale effected by her to the second respondent and the subsequent sale to the third respondent should be declared as bonafide is, no doubt, attractive, but, in my considered view, without substance. This view of mine is fortified by the specific stand taken by the first respondent in the counter affidavit filed by her before this Court on 22.12.2003. She has in no uncertain terms admitted that during her service under the company she entered into various agreements with the land owners and they were only for the sole purpose of fulfilling the duties assigned by the company to her and the lands purchased by the company were registered in her name. When that is the stand taken by the first respondent in the counter affidavit filed by her, the contention as if the lands were purchased in her name in the individual capacity much earlier on 16.11.1995 under document No. 5109 of 1995, has no meaning. It is not as if these vast extents of lands were in small bits here and there and these lands are contiguous in nature and there is no reason to disbelieve that these properties belong to the company. 34. The mere reason that an application filed to implead the Administrator in a suit pending on the file of the Principal Junior Civil Judge Court, Sangareddy, Andhra Pradesh came to be dismissed is not a ground for the third respondent to sustain his case that he is a bonafide purchaser in the light of the unambiguous legislative intent, which has been made out in the various provisions of the Act, as enumerated above, especially Section 446 of the Act. 35. There is ample evidence to show that when a notice was issued on behalf of the respondents through their counsel calling for objections for the purchase of 27 Acres of land, specific objections were raised on behalf of the company and in spite of such objections, the respondents have proceeded to purchase the property under various sale deeds. Such purchases have been made despite the fact that winding up petition against the company was pending and many orders came to be passed by this Court restraining the intermeddlers from interfering with the possession of the property by the company, and publications have been effected widely in Andhra Jyothi, Telugu daily in Andhra Pradesh as per the orders of this Court in various company applications and even afterwards it is astonishing to note that in the documents, especially Document Nos.7314 to 7316 of 2003 executed by second respondent (Koduru Venkateswara Prasad), the beneficiary himself has signed as a witness to the documents. 36. In addition to the above, while the total extent transferred under the said documents sought to be set aside is 27 Acres, the fourth respondent has chosen to execute sale deed in respect of 3 Acres and if that is so, the total extent of lands put together would come to 30 Acres as against 27 Acres and this would show the unscrupulous manner with which the sale deeds have been executed in respect of the properties of the company. 37. With regard to the effect of Sections 441(2) and 537(1) of the Act, it is useful to quote a decision of the Rajasthan High Court in Rajasthan Financial Corporation v. The Official Liquidator, The Bharatpur Oil Mills (P.) Ltd. and others, [1963] 2 Company Law Journal 309, wherein it was held as follows: "The case before us is clearly covered by the residuary clause of 'in any other case as contemplated by section 441(2) of the Companies Act. Learned counsel has urged two grounds for excluding the applicability of section 441 for interpreting section 537 of the Companies Act. The first is that the expression "when any company is being wound" employed in section 537(1) is suggestive of a process a course which can only arise after the winding up order has been made. The learned Company Judge has observed in this context that nothing could have been easier for the Legislature than saying that "after a winding up order" if it was intended that section 537 was to operate only after that event. In our opinion the argument of the learned counsel cannot be accepted. The words "is being wound up" may be suggestive of a process but the starting point of that process has been clearly laid down by section 441 of the Companies Act. Chapter VII of the Companies Act is devoted to the subject of winding up. It is divided into several chapters and in each chapter sections have been grouped under various sub-heads. Section 441 stands by itself under the sub-head "commencement of winding up." In our opinion the intention appears to be that for the purposes of this chapter the commencement of a winding up has been given fixed meaning and the doctrine of 'relating back' appears to have been imported. This doctrine is not unfamiliar to the law of insolvency either. Section 28 of the Provisional Insolvency Act makes the date of presentation of an insolvency petition as the starting point of insolvency proceedings." 38. The Gujarat High Court in Rajratna Naranbhai Mills Co. Ltd. v. New Quality Bobbin Works, [1973] 43 Company Cases 131 observed as follows: "I should also like to take notice of section 447 which provides that an order for winding up a company shall operate in favour of all the creditors and of all the contributories of the company as if it had been made on the joint petition of a creditor and of a contributory. The object of the winding-up proceedings of a company is to collect all the assets, properties and choses-in-action belonging to a company under liquidation and to distribute them to various persons having claim against the company keeping in view priorities fixed by various provisions of the Companies Act. Ordinarily, a liquidator after collecting all the assets, properties and claims in favour of the company would first pay up any secured creditor if he has not chosen to remain outside the winding up and them a preferential creditor and thereafter unsecured creditors and balance amongst the contributories. While collecting the assets of the company it will be the duty of the liquidator to realise all claims subsisting in favour of the company. It must be his endeavour to collect all the assets of the company which have been unauthorisedly, dishonestly, fraudulently or illegally taken away from the company. In order to prevent the scramble for the assets of the company, the liquidator has to step in and to take possession of and protect the assets of the company. As observed by Lindley L.J. In In re Oak Pits Colliery Co, the object of the winding up provisions of the Companies Act is to put all unsecured creditors upon an equality and to pay them pari passu. To accomplish this it was provided that any action, execution, distress or other process against the assets of the company should be suspended, otherwise winding-up would result into a scramble for the assets. Sections 531 to 537 grouped together under sub-heading "Effect of winding-up on antecedent and other transactions" provide for avoidance of certain transactions or recovery of payments made during certain period before the commencement of winding-up proceedings or from the commencement of winding up proceedings. There appears to be an underlying principle behind these sections. Once a company is ordered to be wound up, any transaction within certain period prior to the commencement of the winding up and all transactions after commencement of the winding up if not approved by the Court as bona fide and valid, would not be binding on the liquidator. The principle is wholesome in that by these provisions a fetter is placed on the power of the directors to dispose of the property of the company, more so when financial stability of the company is lost or it appears to be under insolvent circumstances. Section 537 is one such section which provides that any attachment, distress or execution put in force, without leave of the court, against the estate or effects of the company after the commencement of the winding up, or any sale held, without leave of the court, of any of the properties or effects of the company after such commencement shall be void. It is immaterial and irrelevant while considering the case covered by section 537 that the person in whose favour sale is effected is in any way connected with the management of the company prior to the making of the winding up order. Sec 537 is clear and unambiguous. It provides that any attachment of the property of the company or sale thereof without leave of the court after commencement of the winding-up shall be void. In this case, it is admitted that 186 shares of National Machinery Manufacturing Company Ltd, belonged to and was of the ownership of the company in liquidation. Shares were the property of the company in liquidation. They were sold after 3rd March, 1967, and before 7th March, 1967, and sale proceedings to the tune of Rs.16,740 were taken away by the respondent. The sale of the property of the company in liquidation took place after commencement of the winding-up proceedings which commenced on November 1, 1966. If there is nothing more, section 537 should operate and sale of the shares would be void. If the respondent has taken benefit under a void transaction, it is obligatory upon him to return it and one entitled to reclaim it would be the official liquidator of the company in liquidation." 39. These passages of the Rajasthan and Gujarat High Courts have been quoted with approval by a Division Bench of K.Raviraja Pandian,J. (as His Lordship then was) and P.P.S.Janarthana Raja,J. in the judgment dated 21.7.2009 made in O.S.A.Nos.384 to 386 of 2007 (Chetan Arvind Bhagat and 8 others v. M/s.Maxworth Orchards (I) Ltd. and others) which relates to the same company under liquidation regarding the various sale transactions and the Division Bench while upholding the decision of the learned Single Judge in setting aside similar sales effected, observed as follows: "14. We entirely agree with the reasoning of the above Division Bench of the Rajasthan High Court as well as the single Bench decision of the Gujarat High Court. After taking into consideration the factual scenarios in this case, we are of the view that the learned single Judge is correct in allowing the applications filed by the Administrator, the first respondent-company and setting aside the sale deeds. Though the learned Senior counsel appearing for the appellant has relied on the case laws cited supra, those judgments are factually different and the same are not under Section 537 read with 441 of the Companies Act as in the instant case. So, we are not dealing with the above case laws cited by the learned counsel appearing for the appellant one by one." 40. For the foregoing reasons, I am of the considered view that the sales which are the subject matter of theses applications are not only against the interest of the creditors of the company in liquidation, but the transactions also cannot be said to be bonafide and the respective purchasers cannot be said to be the purchasers without knowledge of defective title. Therefore, it is not possible to accept the contention raised by the learned Senior Counsel for the respondents/purchasers that such sales should not be interfered with. 41. In the result, C.A.Nos.1937 to 1939 of 2003, 1748 and 1749 of 2005 in C.A.No.63 of 2001 and C.A.Nos.301 to 303, 319 and 320 of 2006 in C.P.No.57 of 1998 stand allowed and the respective sale deeds stand set aside, and C.A.No.185 of 2006 in C.A.No.1937 of 2003 in C.A.No.63 of 2001 is dismissed. (SECOND BATCH) C.A.Nos.308 and 309 of 2006 in C.P.No.57 of 1998 and C.A.Nos.625 and 626 of 2005 in C.A.No.63 of 2001 42. C.A.No.308 of 2006 is filed by the learned Administrator for an order to set aside the two sale deeds dated 28.10.2003 and 22.11.2003 registered as Document Nos.10156 and 10854 of 2003 in the Office of Sub Registrar, Medak at Sangareddy, Andhra Pradesh and for a consequential order of permanent injunction restraining the respondents from in any manner interfering with the said property. Similar is the prayer in C.A.No.625 of 2005. 43. C.A.No.309 of 2006 is filed by the learned Administrator for an order of injunction against the fourth respondent, Mandal Revenue Officer, Ramachandrapuram, Medak District, Andhra Pradesh, restraining him from issuing a patta or any document to the third respondent/purchaser or to any other person claiming through respondents 2 and 3. The same relief is sought for in C.A.No.626 of 2005. 44. The land covered in the said applications is measuring 10.35 Acres or 4.35 Hectares in Survey No.191 situated in Kollur Village, Ramachandrapuram Mandal and G.P. Kollur Medak District, Andhra Pradesh and agricultural dry land in Survey No.30 measuring 1.05 Acres or 0.45 Hectares situated in Osman Nagar under G.P.Kollur, Ramachandrapuram Mandal, Medak District, Andhra Pradesh. The lands involved in these applications are used for Gandipet Project of the company, which has acquired 170 Acres which were all fenced and in which orchards have been fully developed with continuous yields. The Company is stated to have acquired the said lands from the original owners, who are all ex-servicemen and who had given General Power of Attorney to the first respondent (Kamlesh Lohade, "Poonam", 3.5.839, Hyderguda, Hyderabad, Andhra Pradesh). 45. In the affidavit filed by the first respondent (Kamlesh Lohade) in C.A.Nos.307 to 309 of 2006, the first respondent has clearly stated that as a General Power of Attorney of the land owners, he has executed sale deeds in favour of the company between 1993 and 1995 and surrendered patta certificates and General Power Attorney originals to the company at the time of execution of the sale deeds. He has categorically stated that he has not executed any sale deeds in favour of any person either under Document No.3520 of 2005, dated 29.3.2005 or Document No.10156 of 2003, dated 28.10.2003. The relevant portion of the counter affidavit filed by the said Kamlesh Lohade is as follows: "3. I submit at the outset that I was the General Power of Attorney of the land owners (i.e., the original allottees-Ex-servicemen) in respect of the properties in Survey Nos.191 and 30 of Kollur and Osman Nagar Villages, Ramachandrapuram Mandal, Medak District. I submit that I had executed the Sale Deeds in favour of M/s.Maxworth Orchards (India) Limited and its customers in the years 1993-1995. I submit that I had also surrendered the patta certificates and G.P.A.s in original to the officials of M/s.Maxworth Orchards (India) Limited at the time of the execution of the Sale Deeds in favour of the customers of the company. I further submit that I have not executed any other Sale Deeds subsequent to the said period in favour of any person, muchless the alleged Sale Deeds vide document Nos. 1) 3520/05, dated 29.3.05, 2) 10156/03, dated 28.10.2003 alleged to be executed by me. Furthermore, from the date of execution of the said Sale Deeds, I affirm that I have no right, title, or interest whatsoever in the property." 46. Further, it is relevant to point out that the photographs and signatures of the said Kamlesh Lohade filed in the said sale deeds which are sought to be set aside are, on the face of it, not like that of the first respondent, when compared to the signature of the first respondent in the affidavit. Inasmuch as it is not in dispute that all the parent deeds and original deeds relating to the said 12 Acres of land which were acquired from four ex-servicemen, namely (i) K.Tataiha, S/o.K.Kotaiha, (ii) Noorulah Khan, S/o.Habeebullah Khan, (iii) R.Satyanarayana, S/o.Hanumantha Rao; and (iv) J.Sundaramma, w/o.Late Sundar Rao, each having sold 3 Acres of land, are available with the company and this Court has granted an order of injunction, which was widely published in the newspapers, there is no difficulty to conclude that the said transactions are sham, nominal and illegal. Moreover, all these lands are in possession of the company, they are fenced and orchards have been fully developed with continuous yields and are under the administration of the learned Administrator. 47. There is one another reason to support the above view, namely that in the said sale deeds alleged to have been executed by the first respondent in favour of the second respondent and the consequential execution of sale deeds by the second respondent in favour of the third respondent, which are all challenged in these applications, the sale consideration has been stated as ` 40,000/- per Acre in respect of Survey No.191 and ` 30,000/- per Acre in respect of Survey No.30, while the company has sold as per the direction of this Court in C.A.NO.1331 of 2003 some of the lands in the same area at ` 1.35 Lakhs per Acre in the year 2003. 48. The third respondent, who is stated to have purchased the property without knowing the extent of lands and without verifying the authenticity and right of the second respondent in selling such properties, cannot claim any better title. It is also further relevant to note that the second respondent is being prosecuted under the Land Grabbing Act. 49. For the foregoing reasons, C.A.Nos.308 and 309 of 2006 in C.P.No.57 of 1998 and C.A.Nos.625 and 626 of 2005 in C.A.No.63 of 2001 are allowed and the respective sale deeds stand set aside. (THIRD BATCH) C.A.Nos.688 to 690 of 2006 in C.P.No.57 of 1998 50. C.A.No.688 of 2006 is filed to set aside the four sale deeds dated 1.9.2005 registered as document Nos.11481 of 2005, 11482 of 2005, 11483 of 2005 and 11484 of 2005 in the Office of Sub Registrar, Sangareddy, Medak District. All the lands are situated in S.No.191. 51. Document No.11481 of 2005 relates to 4.20 Acres of land situated at Kollur Village, Ramachandrapuram Mandal, Medak District, under G.P.Kollur Z.P.P., Medak at Sangareddy, executed by the first respondent (C.Lakshmikar Reddy, S/o.Late C.Narayana Reddy, R/o.H.No.1.2.234/36, S.B.H.Colony, Domalguda, Hyderabad  29) in favour of the fourth respondent (Dr.Armada Harsha Reddy, S/o.Dr.Ramachandra Reddy, R/o.Hyderabad). 52. Document No.11482 of 2005 relates to 1 Acre of land at the same village executed by the first respondent (C.Lakshmikar Reddy) in favour of of the fifth respondent (Dr.Vanakuri Divya, W/o.Govind Reddy, R/o.Hyderabad). 53. Document No.11483 of 2005 relates to 1 Acre of land situated in the same village executed by the first respondent (C.Lakshmikar Reddy) in favour of the second respondent (Kontham Suvarnalatha, W/o.Veera Reddy, R/o.H.No.22-90/A, Saraswathi Nagar, Road No.3, Saroonagar, Hyderabad). 54. Likewise, Document No.11484 of 2005 relates to 4.15 Acres of land situated in the said village sold by the first respondent in favour of the third respondent (Aramada Bharathi, W/o.Dr.Ramachandra Reddy, R/o.Hyderabad). 55. In these cases, the first respondent (C.Lakshmikar Reddy), who has nothing to do with the above said lands which belong to the company, has effected the fraudulent sales in collusion with the sixth respondent (Dr.A.Ramachandra Reddy, S/o.Pichi Reddy, R/o.Hyderabad) and the seventh respondent (G.Srinivas, S/o.Gangaram, R/o.Saroornagar, Rangareddy District). For executing the said sale deeds, the Board of Directors of the Company have never authorised any person and all documents relating to the said lands are with the company. In these cases also there has been public notice issued and respondents 6 and 7 have signed as witnesses and all the documents were executed on the same day and there has been impersonation, forgery and fabrication of the documents, about which the Caretaker of the Company, Mr.Karla Srinivasa Rao, S/o.K.Bhaskar Rao has filed a complaint registered in F.I.R.No.41 of 2006 on 18.3.2006 on the file of the Sub Inspector of Police, Sanga Reddy Police Station. 56. For the said reasons, C.A.Nos.688 to 690 of 2006 in C.P.No.57 of 1998 are allowed and the respective sale deeds are set aside and there will be an order of injunction against the respondents restraining them from interfering with the peaceful possession of the said lands by the company. (CRIMINAL PROSECUTION) C.A.No.307 of 2006 in C.P.No.57 of 1998 and C.A.No.624 of 2005 in C.A.63 of 2001 57. Considering the seriousness of the issue involved, I am of the considered view that a concerted, collusive and fraudulent act has been done against the interest of the company, which is detrimental to the interest of the creditors, depositors and contributories of the company, and therefore, apart from setting aside the sales as fraud, it is necessary that the real truth has to come out and the culprits have to be brought before the criminal court by setting criminal law in motion. In view of the same, the Central Crime Branch, Land Grabbing Cell, Thousand Lights, Chennai is directed to investigate the entire affairs and the learned Administrator is permitted to file a comprehensive complaint in addition to the materials and complaints already available and on such complaint, the Central Crime Branch, Land Grabbing Cell, Chennai shall investigate and launch criminal prosecution and set in motion the criminal law against the offenders. C.A.No.307 of 2006 in C.P.No.57 of 1998 and C.A.No.624 of 2005 in C.A.63 of 2001 are ordered accordingly. 17.9.2010 Index : Yes Internet : Yes sasi P.JYOTHIMANI,J. [sasi] C.A.Nos.1937 to 1939 of 2003, 1748 and 1749 of 2005 in C.A.No.63 of 2001, C.A.No.185 of 2006 in C.A.No.1937 of 2003 in C.A.No.63 of 2001, and C.A.Nos.301 to 303, 308 and 309, 319 and 320 of 2006 in C.P.No.57 of 1998, C.A.Nos.625 and 626 of 2005 in C.A.No.63 of 2001, C.A.No.307 of 2006 in C.P.No.57 of 1998, C.A.No.624 of 2005 in C.A.63 of 2001, and C.A.Nos.688 to 690 of 2006 in C.P.No.57 of 1998 17.9.2010

In The High Court Of Judicature At ... vs Unknown on 17 September, 2010

Madras High Court

[Article 243M(2)] [Article 243M] [Constitution]

Central Government Act

IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 2407 of 2011 Anuranjan Kumar Sinha .............. ............ Petitioner Versus The State of Jharkhand & Ors. ...... ............ Respondents. .............. CORAM : HON'BLE MR. JUSTICE NARENDRA NATH TIWARI .............. For the petitioner : Mr. Navin Kumar, Advocate For the State : J.C. to G.P.IV. ............. 2/08.07.2011: The petitioner seeks permission to delete prayers No.2 and 3 of the writ petition. Permission is granted. In this writ petition, the petitioner has prayed for direction on the respondents to pay the monetary benefit of Assured Career Progression (ACP), for which decision has already been taken and order has been issued being office order No.119 dated 3.6.2008, by the Additional Secretary, Drinking Water and Sanitation Department, Government of Jharkhand. It has been stated that the petitioner has been working as a Typist. They were given all benefits of Secretariat cadre of Typist. By office order No.119 dated 3.6.2008, the Department has given benefit of ACP to the several Typists including the petitioner. But till date monetary benefit thereof has not been given to the petitioner. The petitioner approached the departmental authority several times, but the same was not heeded upon. Learned J.C. to G.P.IV, appearing on behalf of the respondents, submitted that the Regional Chief Engineer, Drinking Water and Sanitation Department, Jharkhand is the competent authority to consider the petitioners' grievance and if the petitioner represents before him,he shall consider the petitioner's grievance and pass appropriate order. Considering the above, this writ petition is disposed of giving liberty to the petitioner to file representation before the Regional Chief -2- Engineer, Drinking Water and Sanitation Department, Jharkhand (respondent No.5) regarding his said grievance. On receipt of representation, the said respondent shall consider the same and pass appropriate order in accordance with law within six weeks from the date of receipt of the representation. If the order, as claimed by the petitioner, is found already issued by the Department and if the petitioner's claim is found genuine, the admitted arrears of difference of pay shall be paid to the petitioner within six weeks thereafter. (Narendra Nath Tiwari, J) Shamim/

Anuranjan Kumar Sinha vs State Of Jharkhand & Ors on 8 July, 2011

Jharkhand High Court

[Section 8(1)(ii)] [Section 8(1)] [Section 8] [Complete Act]

Central Government Act

JUDGMENT Dar, J. 1. This is an appeal against a judgment and decree, dated 2lst March 1942, of the Civil Judge of Budaun by which he varied a judgment and decree, dated 21st March 1940, of the Assistant Collector, first class, of Budaun in a suit for recovery of arrears of theka money. On 15th August 1932, defendant 2, Ram Sahai, who was the usufructuary mortgagee of 86 bighas and 14 biswas of Mauza Narao Khurd, Mahal Asmani, Patti Molvi Wahid Bux, executed a patta of the said property in favour of defendant 1, K.B. Maulvi Wahid Bux. The rent reserved under the theka was a fixed sum of Rs. 430 which was payable every year by the thekadar irrespective of any "calamity, suspension or remission of rent." On 1st May 1939, the lessor made an assignment of the theka money which was due for 1344F. to the plaintiff Radhey Shyam, and after taking assignment on 26th May 1939, he raised an action in the Court of the Assistant Collector, first class, of Budaun for recovery of a sum of Ks. 454 as the theka money together with a sum of Rs. 118-1-0 for interest due upon it. The trial Court decreed the claim for a sum of Rs. 286 with costs and interest. This figure was arrived at after deduction of a sum of Rs. 168 from the claim and the sum of Rs. 168 was deducted partly on account of the remission granted by the Government and partly on account of the inability of the thekadar to collect his dues from tenants. On an appeal made by the assignee the Civil Judge of Budaun came to the conclusion that under the terms of the thekanama the thekadar was not entitled to claim any deduction for remission and non-realization of dues and that this matter was res judicata between the parties, and in the result he decreed the claim in full. We have now a second appeal by the thekadar. 2. It is not disputed that under the terms of the thekanama the thekadar cannot claim any deduction on account of any remission of rent or on account of non-realization of rent from tenants, whatever be the cause for the same, and that in previous suits between the parties the terms of the theka have thus been interpreted. But the thekadar contends that notwithstanding the terms of the thekanama jand previous decisions the thekadar under Section 219, U.P. Tenancy Act (17 of 1939), is entitled to remissions which were made in the iyear 1344F., and the main question for our consideration in this appeal is whether this contention is legally correct. At the time when the theka money became due and was assigned and at the time when the action was raised the Agra Tenancy Act (3 of 1926) was in force. The action was raised under Section 132 read with Section 220, Agra Tenancy Act. Remissions claimed by the thekadar were governed by Sections 73 and 74 read with Section 229 of the Act and it is not disputed that there being a contract to the contrary in the theka, the remissions could not be claimed by the thekadar under the Agra Tenancy Act (3 of 1926). During the pendency of the suit and before its decision the U.P. Tenancy Act (17 of 1939) came in force. Section 296, U.P. Tenancy Act, 1939, provides for the disposal of pending suits in these terms: A suit under any of the provisions of the Agra Tenancy Act, 1926...which is pending at the commencement of this Act...shall be decided in accordance with the corresponding provision of this Act and if there is no such corresponding provision, the proceedings relating to such suit shall be quashed. 3. In the U.P. Tenancy Act, 1939, corresponding provisions exist to all the sections referred to above by us of the Agra Tenancy Act of 1926. The action which was raised under Section 132 read with Section 220 of Act 3 of 1926 has now to be disposed of under Section 148 read with Section 222, U.P. Tenancy Act, 1939, and there is no material difference in these provisions of two statutes. Sections 73, 74 and 219 of Act 3 of 1926, which deal with remissions generally and remissions to thekadars find corresponding provisions in the U.P. Tenancy Act of 1939, in Sections 123, 124 and 219. But there is a material difference in Section 219 of the old and new Act. By the former section the thekadar could claim remissions if there was no contract to the contrary in the theka, whereas by the latter statute this condition has been removed and the thekadar is entitled unconditionally to remissions. 4. The main controversy in the case is whether the rights and liabilities of the thekadar for the theka money of 1344F. are to be governed by the terms of the theka and by the Agra Tenancy Act (3 of 1926), or by the terms of the U.P. Tenancy Act of 1989. Apart from Section 296, U.P. Tenancy Act of 1939, which contains a transitional provision applicable to pending suits and which we shall presently consider, there can be no doubt that Section 219, U.P. Tenancy Act of 1939, on its own terms cannot be read retrospectively and cannot be called in aid to determine the rights and liabilities which arose before Act 17 of 1939, came into force. There is high authority of Lindley L.J. in Lauri v. Renad (1892) 3 Ch. 402, for the observation that it is a fundamental rule of English law that no statute shall be construed so as to have a retrospective operation unless its language is such as plainly to require such a construction; and the same rule involves another and subordinate rule to the effect that a statute is not to be construed so as to have a greater retrospective operation than its language renders necessary. And this proposition has received general assent both in England and in India and has been further stressed in Maxwell's Interpretation of Statutes and in Craies on Statute Law at pages 186 and 329, respectively. If, therefore, a suit were to be instituted to recover theka money under the provisions of the U.P. Tenancy Act of 1939 which had fallen due before the Act of 1939 had come into force, there cannot be much room for contention that Section 219, U.P. Tenancy Act of 1939, should not be interpreted retrospectively and the thekadar should be given benefit of remissions which he was not entitled to at the time when the theka money became due. Is there any reason to hold that with regard to suits which were pending when the U.P. Tenancy Act of 1939, came into force the law is any different or should be different? It is contended that under Section 296, U.P. Tenancy Act of 1939, a pending suit is to be decided under the corresponding provisions and it implies that not only the suit is to be disposed of under the corresponding provisions, but all the rights and liabilities which are also the subject-matter of the suit should also be disposed of under the corresponding provisions and thus interpreted the section authorizes a retrospective effect to the statute. In our opinion Section 296 should not be so interpreted so as to give a retrospective effect to its provisions and the material words in the section a suit under any of the provisions of the Agra Tenancy Act, 1926, shall be decided in accordance with the corresponding provision o£ this Act, mean that the only provisions of the old Act which are affected by this section are those under which a suit is filed and not others, unless there is something in those other provisions to show that a retrospective effect should be given to them. As to whether retrospective effect is to be given to a particular provision will depend upon its terms and upon the circumstances of each case. But we are clear that there is nothing in Section 219, U.P. Tenancy Act, 1939, which suggests that retrospective effect should be given to it. 5. For the reasons given above we are of opinion that the view taken by the lower appellate Court is correct and the deductions claimed by the thekadar were rightly disallowed. But in view of the finding of the Assistant Collector about the remissions and the circumstances in which rent was not collected and the benefit which has accrued to the lessor on account of remission of Government revenue and the loss which has accrued to the thekadar, we consider that the plaintiff's claim should be decreed only for the principal sum and interest should not be allowed. In the result we allow this appeal in part and modify the decree of the lower appellate Court to this extent that the plaintiff's claim is decreed for the principal sum only without interest and for proportionate costs in all the Courts.

Author: Dar

Qayum Bux vs L. Radhey Shiam on 9 May, 1944

Allahabad High Court

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 01.07.2009 CORAM THE HONOURABLE MRS. JUSTICE ARUNA JAGADEESAN Crl.O.P.No.16519 of 2005 K.Raghuraman .. Petitioner Vs. 1.Chittima 2.M/s.B.H.R.Engineers (P) Ltd., Rep. by its Managing Director K.Balasubramaniam New No.16 (Old No.A-35) 6th Main Road Rajah Annamalapuram Chennai  600 028. 3.K.Balasubramani .. Respondents Criminal Original Petition filed under Section 482 of Criminal Procedure Code praying for a direction as stated therein. For Petitioner ... Mr.G.R.Swaminathan For Respondents ... No Appearance * * * * * O R D E R 4.In LACHHMAN P.UDHANI AND OTHERS vs. REDINGTON (INDIA) LTD., 2006 (4) CTC 43 This Court has held as under: There is no representation for the respondents. 2.The petitioner filed this petition seeking to quash the proceedings relating to C.C.No.7794 of 2003 on the file of V Metropolitan Magistrate, Egmore, Chennai. The petitioner is the third accused in the complaint. The first accused is the company, the second and third accused are said to be the Directors of the said company. It is stated in the complaint that on personal assurance and promise made by the second and third accused, the first accused company borrowed a sum of Rs.6,85,500/- and executed two promissory notes for the value of Rs.5,00,000/- and Rs.1,85,000/- in favour of the complainant. But as promised, the accused failed to pay the amount and the outstanding in the accused account as on 12.01.2002 was a sum of Rs.9,12,280/-. When the amount was demanded by the complainant by issuing a notice dated 03.01.2003, the accused handed over six post-dated cheques to clear the dues. After having waited for a considerable period, the complainant issued another notice dated 10.02.2003 intimating about the presentation of the cheques to enable the accused to make arrangements for payment of money. On receipt of notice dated 10.02.2003, the accused informed through their accountant that the amounts are already arranged. Hence, the complainant had presented the cheques for collection but it was returned with an endorsement "Funds Insufficient" dated 19.02.2003. Thereafter, the plaintiff had issued statutory notice dated 24.02.2003 and the same was served on the accused on 27.02.2003, since the accused failed to make payment, the complainant filed the complaint. 3.The learned counsel for the petitioner submits that the petitioner/third accused was not in charge or responsible as Director of the first accused company and there is no materials to show that the petitioner was in charge of the company at any point of time. He would further submit that he had resigned as Director of the first accused company on 31.01.1995 itself and his resignation is registered with the Registrar of Companies as required under Form No.32, long prior to the issuance of cheques. Therefore, he cannot be fastened with the criminal liability. "7.In a case in M.S.Rama Mohan Rao v. Mrs.S.Nagu Bai, 2003 Company Cases 403, where the resignation letter of one of the Directors of the Company was produced to establish the disassociation of one of the Directors from the Company, A.Packiaraj, J., has observed as follows: "Though the petitioner produced the concerned letter addressed to the complainant in the Court, showing the resignation of the petitioner from the Company as director, the Court sitting in revisionary jurisdiction could not go into the preliminary issue, since these were matters that could be decided only by letting in evidence." 8.In a case in S.V.Mazumdar and Others v. Gujarat State Fertilizers Co. Ltd. and another, 2005 (3) CTC 380, where one of the Directors of the Company disputed the responsibility fixed on him with respect to the conduct of the business of the Company, the Hon'ble Supreme Court has observed as follows: "Whether a person is in charge of or is responsible to the Company for the conduct of the business is to be adjudicated on the basis of materials to be placed by the parties." 10.Form-32 filed with the Registrar of Companies is a public document as per Section 74 of the Indian Evidence Act, 1872. When the certified extract of such a public document is filed, the Court shall presume as to the genuineness of such certified copies as per Section 79 of the said Act. 11.The sanctity attached to such public documents and the presumption the Court is bound to raise as to the genuineness of such documents have not been brought to my notice at the time when the judgement in K.Umadevi v. V.Manikandan, Proprietor, Manisha Traders, 2006 (1) CTC 662, was pronounced by me. In view of the importance of the public document as detailed above, the ratio laid down by me in the aforesaid judgment cries for reconsideration and restatement. The march of law should be dynamic and it should never be static. If a Judge is afflicted with infallibility syndrome, the space for growth of law is unfortunately smothered stifled. 12.In a case where certified copy of Form-32 is filed by the accused Director to show that he had resigned prior to the issuance of the cheque and the challenge thereto is innocuous inasmuch as no counter credential is projected by the complainant, the Court has to necessarily accept the same and relieve such a Director from the ordeal of trial. It will be a misuse of process of law if such an accused-Director who had resigned long prior to the issuance of the cheque and severed his umbilical root in the Company is implicated in a case under Section 138 of the Negotiable Instruments Act. 13.It is always safe to take the date of registration of Form-32 to determine the date of disassociation of the accused-Director from the conduct of the business of the Company as there is chance for antedating the date of resignation in order to save the accused-Director from prosecution. 14.In this case, the petitioners have resigned on 18.12.2001 from the Company and the same was registered with the Registrar of Companies through Form-32 as on 27.12.2001 long prior to the issuance of the cheque. Therefore, the petitioners cannot be fastened with criminal liability under Section 138 of the Negotiable Instruments Act." 5.In this case, the petitioner has resigned on 31.01.1995 from the Company and the same was registered with the Registrar of Companies through Form-32 as on 01.02.1995 long prior to the issuance of the cheques (last cheque issued on 10.02.2003). Therefore, the petitioner cannot be fastened with criminal liability under Section 138 of the Negotiable Instruments Act and the criminal prosecution as against the petitioner is liable to be quashed. 6.In the result, the criminal proceedings as against the petitioner, who is the third accused in C.C.No.7794 of 2003 pending on the file of V Metropolitan Magistrate, Egmore, Chennai, stands quashed. The criminal original petition stands allowed. Consequently, connected miscellaneous petition is closed. sri

K.Raghuraman vs Chittima on 1 July, 2009

Madras High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.19226 of 2011 Ranjeet Kumar Bind Versus The State Of Bihar ----------- Shahzad ( Hemant Kumar Srivastava, J.) 02 05.07.2011 Call for the clear carbon copy of the case diary of G.R.P. Jhajha P.S. Case No. 29 of 2010 from the court of Sri A.K. Pandey, Railway Judicial Magistrate, Kiul, District- Lakhisarai and list the matter after receipt of the same.

Ranjeet Kumar Bind vs The State Of Bihar on 5 July, 2011

Patna High Court - Orders

ORDER T. Anjaneyulu, Member (J) 1. Heard both sides. 2. The issue for determination in this appeal is whether enhancement of penalty under Section 84 of the Finance Act, 1994 by the Commissioner oi Central Excise & Customs, Nashik is proper and legal. The Assistant Commissioner (Service Tax Cell), Central Excise & Customs, Nashik IV Division while deciding the case vide order in original dated 19.10.04 imposed penalty of Rs. 2,500/- under Section 76 of Finance Act, 1994 on the assessee. The assessee failed to pay the service tax from April, 2000 to June 2003 on or before the stipulated period. Therefore, show cause notice was issued for contravention of provisions of Section 68 & 70 of the Finance Act, 1994 for imposing penalty under Section 76 & 77 ibid. On adjudication of the matter, the service tax amounting to Rs. 23,120/- and interest amounting to Rs. 8,390/- has been appropriated since paid and further total penalty of Rs. 3,500/- was imposed. The assessee also paid penalty of Rs. 3,500/- after adjudication. This order has been reviewed by the Commissioner and enhanced the penalty equal to the service tax i.e. Rs. 23,120/-under Section 76 of Finance Act 1994 and further penalty of Rs. 46,240/- under Section 78 ibid. Hence this appeal. 3. The contention of the assessee is that there exist no valid grounds for enhancement of penalty the Special Registration Scheme introduced in the month of October 2004 for registration of various entrepreneurs who come under network of service tax provides that if they get registered on or before 31-Oct-2004 and pay service tax with interest there on, no penalty can be imposed. The contention of the assessee is that they already got registered prior to introduction of this scheme and there is no reason as to why this Special Registration Scheme being not extended to them also. The Commissioner, in his impugned order, has negated this contention. 4. Ld. Counsel for the assessee relied upon the following decisions of the Tribunal where enhanced penalty is set aside. i) Tribunal Order No. A/332-333/III/SMC/WZB/06 dated 6.2.2006 in the case between Sharad Jambhekar & Associates and Ors. v. Commissioner of Central Excise, Nasik. ii) Tribunal Order No. A/320/IV/SMC/WZB/06 dated 15.2.2006 in the case between Commissioner of Central Excise, Nashik v. Shri Ashish Patil. iii) Dewal Tours & Travels v. CCE, Jaipur-II 2006-TIOL-470-CESTAT-DFL. iv) CCE, Bhpal v. Bhojpur Club. 2006-TIOL-486-CESTAT-DEL 5. I have considered contentions ot both sides. Having regaed to the payment of original penalty of Rs. 8,390/- and Rs. 3,500/- and principles laid down in the aforesaid decisions, I am of the view that the assessee has got strong prima-facie case, as such pre deposit is waived and stay is granted from its recovery pending disposal of the appeal. Application is allowed. List the appeal in its turn. (Dictated in Court)

Jitendra Damodhar Patel vs Commissioner Of Central Excise ... on 18 January, 2007

Customs, Excise and Gold Tribunal - Mumbai

IN THE HIGH COURT OF JHARKHAND, RANCHI W.P.(S) No.4439 of 2007 Munni Kumari ... Petitioner Versus M/s Bharat Coking Coal Ltd. Koyla Bhawan, Dhanbad & others ... Respondents ----- CORAM : HON'BLE MR. JUSTICE J.C.S. RAWAT For the Petitioner : Mr. Satyajit Bakshi For the Respondents : Mr. Anoop Kr. Mehta ---- 6/17.03.2011 Issue notice to Respondent no.2, on taking steps by both ways within a period of seven days. Notice be made returnable within six weeks. Post this matter immediately thereafter. (J.C.S. Rawat, J.) R.Kumar

Munni Kumari vs B.C.C.L & Anr on 17 March, 2011

Jharkhand High Court

JUDGMENT Pradeep Nandrajog, J. 1. Following substantial question of law is framed for consideration in the present appeal: Whether on the pleadings of the parties and evidence on record the view taken by the Courts below is legal and valid? 2. The present appeal is directed against the judgment and decree dated 3.11.2000 passed by the learned Additional District Judge whereby the judgment and decree dated 22.8.1996 passed by the learned Civil Judge dismissing the suit filed by the appellant was affirmed. 3. Very briefly, admitted facts as culled out from the impugned judgment as also from the records before this Court are that on 6.5.1961 appellant Kanshi Ram was admitted as a member of Panch Shila Cooperative House Building Society (hereinafter referred to as the Society), a Society registered under the Bombay Cooperative Societies Act, 1925 as extended to Delhi. 4. The Society acquired land in Village Shahpur Jat and developed the same into a residential colony 'Panch Shila Park'. A formal lease deed in respect of the said land was executed by the Delhi Development Authority (respondent herein) in favor of the Society. 5. On 19.7.1964 a draw of lots for the allotment of plots to the members of the Society was held. The appellant was declared successful for the allotment of the plot bearing municipal No. N-77, Panch Shila Park, Delhi (hereinafter referred to as the suit property). Intimation in said regard was sent by the Society to DDA. 6. On 3.12.1966 a perpetual sub-lease deed in respect of the suit property was executed by the DDA and the Society in favor of the appellant. Pursuant to the execution of said sub-lease possession of the suit property was handed over to the appellant. 7. After obtaining necessary sanctions from the authorities the appellant raised construction over the suit property. 8. On 31.1.1981 appellant received a letter, Ex.DW-1/4, dated 21.1.1981 issued by DDA informing him that the perpetual sub-lease deed dated 3.12.1966 executed in respect of the suit property has been cancelled. Said notice reads as under: To, Shri Kanshi Ram, C/o M/s. Jai Bharat Trading Co-Machinery Merchant, 4025, Naya Bazar, Delhi. Sub: Cancellation of sub-lease due to mis-statements to get plot No. N-77, Panch Shila C.H.B. Society. Sir, I am directed to inform you that the Lt. Governor (Lesser) has cancelled the sub-lease of the Plot No. N-77 in Panch Shila Coop. House Bldg. Society for breach under Clause III of the perpetual sub-lease deed. You are therefore requested to hand over the possession of the plot to our Asstt. Engineer on 30/1/1981 at 10.30 A.M. Yours faithfully, sd/- DY.DIRECtor (CS) 9. Relevant portion of Clause-III of the perpetual sub-lease deed dated 3.12.1966 referred to in the letter Ex. DW1/4 dated 21.1.1981 reads as under: III. If the sum or sums payable towards the premium or the yearly rent hereby reserved or any part thereof shall at any time being arrear and unpaid for one calender month next after any of the days whereon the same shall have become due, whether the same shall have been demanded or not, or if it is discovered that this Sub-Lease has been obtained by suppression of any fact or by any mis-statement, misrepresentation or fraud or if there shall have been, in the opinion of the Lessee or the Lesser, and the decision of the Lesser shall be final, any breach by the Sub-Lessee or by any person claiming through or under him of any of the covenants or conditions contained herein and in the Lease and on his part to be observed or performed, then and in any such case, it shall be lawful for the Lesser or the Lessee with the prior consent in writing of the Lesser, notwithstanding the waiver of any previous cause or right of re-entry upon the residential plot hereby sub-leased and the buildings thereon, to re-enter upon and take possession of the residential plot and the buildings and fixtures thereon, and thereupon this Sub-Lease and everything herein contained shall cease and determine in respect of the residential plot so re-entered upon, and the Sub-Lessee shall not be entitled to any compensation whatsoever nor to the return of any premium paid by him. 10. From a perusal of the letter Ex. DW1/4 it is apparent that the perpetual sub-lease deed dated 3.12.1966 was cancelled for the reason appellant allegedly made a mis-statement and thus committed a breach in terms of Clause- III of the Sub-lease deed. 11. Appellant thereafter filed a suit against the respondent DDA inter alia praying for: A. A decree of declaration that the cancellation of perpetual sub-lease deed dated 3.12.1966 by DDA is null and void. B. A decree of permanent injunction restraining DDA from taking the possession of the suit property. 12. Material averments in the plaint filed by the appellant are being noted here-in-under: 9. That on 31.1.1981, the plaintiff received a notice No. F.2(214)78/CB/DDA dated 21.1.1981 from the Deputy Director (CS) of Delhi Development Authority (Co-operative Societies Cell) intimating him that the Lt. Governor (Lesser) has cancelled the Sub-Lease of the plot No. N-77 in Panchsheela Co-operative House Building Society for breach under Clause III of the Perpetual Sub-Lease and further called upon the plaintiff to hand over the possession of the plot to the Asstt. Engineer on 30.1.1981 at 10.30 a.m. 10. The plaintiff submits that he has not committed any breach of the Perpetual Sub-Lease or of any Clause thereof and the defendant have no right or title to cancel the Sub-lease or to claim possession of the said plot from the plaintiff. 11. In any case, the plaintiff submits that according to Clause IV of the said Perpetual Sub-Lease, no forfeiture or re-entry shall be affected until the Lesser or lessee have served on the Sub-lessee a notice in writing specifying the particular breach complained of and if the breach is capable of remedying requiring the sub-lessee to remedy the breach. 13. That no show cause Notice or notice cancelling the sub-lease was over served on the plaintiff as alleged by the DDA in the notice dated 21.1.1981. The plaintiff had not opportunity to put all the facts before the Officer concerned and no opportunity of being heard had been granted to him and no order of cancellation of Sub-Lease or forfeiture and re-entry thereof could be effected. 13. Relevant portion of Clause-IV of the perpetual Sub-Lease Deed dated 3.12.1966 relied upon by the appellant reads as under: IV. No forfeiture or re-entry shall be effected until the Lesser or the Lessee has served on the Sub-Lessee a notice in writing (a) specifying the particular breach complained of, and (b) if the breach is capable of remedy, requiring the Sub-Lessee to remedy the breach, and the Sub-Lessee fails within such reasonable time as may be mentioned in the notice to remedy the breach if it is capable of remedy; and in the event of forfeiture or re-entry the Lesser in his discretion or the Lessee, with the prior consent in writing of the Lesser, may relieve against forfeiture on such terms and conditions as the Lesser thinks proper. 14. Case thus projected by the appellant in the plaint was that the cancellation of the perpetual Sub-Lease Deed dated 3.12.1966 by the DDA is null and void because of the following 2 reasons: A. Appellant has not committed any breach in terms of Clause-III of the perpetual Sub-Lease Deed or of any other clause. B. Clause-IV of the perpetual Sub-Lease Deed mandated that before determination of the Sub-Lease the Lesser DDA must serve a show cause notice upon the sub-lessee i.e. the appellant. That no show cause notice as required under Clause-IV of the perpetual Sub-Lease Deed was served upon the appellant. 15. In response to the case set up by the appellant respondent DDA filed its written statement relevant averments whereof are being noted hereinbelow: Preliminary Objections: 1. That the sub-lease in favor of the plaintiff was obtained on the basis of mis-representation of facts and so the sub lease has been cancelled after the serving of show cause notice on the plaintiff. Replies on Facts: 10. That para 10 of the plaint is denied. The plaintiff has committed the breach of the perpetual sub-lease deed. In fact the plaintiff has sworn an affidavit stating that ?he does own either in full or in part any lease hold/free hold plot/house in Delhi/New Delhi/Delhi Cantt nor that his wife including unmarried minor children and dependent relations own any plot/house/flat in Delhi/New Delhi/Delhi Cantt?. Subsequently it came to the notice to the defendant that the plaintiff owned a portion of plot No. 25/41 in Punjabi Bagh. In this way he has sworn a falls affidavit on the basis of which he obtained the allotment of plot No. N-77 in Panch Shila Park. Besides the criminal action against the plaintiff for sworn falls affidavit plaintiff's sub lease became liable for cancellation and hence sub lease of the plot in dispute was rightly cancelled under Clause III of the perpetual sub lease deed for mis- statement of the facts. 11. Para 11 of the plaint is denied. The plaintiff was sent a show cause notice on 26.3.80 requiring to show cause why the sub lease of the plot may not be determined. The show cause notice was received back undelivered with the remarks ?refused to receive?. Since the plaintiff intentionally refused to receive the notice. For all intents and purposes the notice is legal and supposed to be served and action for determination of the sub lease taken is just legal and proper. 16. In the written statement filed no particulars of false affidavit allegedly sworn by the appellant were specified. However, the false affidavit allegedly sworn by the appellant was filed on record. The said affidavit Ex. PW2/D1 is dated 11.6.1966 and reads as under: AFFIDAVIT I, KANSHI RAM son of L. Badlu Ram aged 60 years, resident of C/o Jai Bharat Trading Co., Naya Bazar, Delhi and a member of the Panch Shila Cooperative House Building Society Ltd., New Delhi-17 do hereby affirm and declare as under: 1. That neither I nor my wife nor any of my dependent relations (including unmarried children) is a member of any other house building Cooperative Society functioning in Delhi/New Delhi/Delhi Cantt. 2. That I do not own, either in full or in part, on leasehold or freehold basis, any plot of land or a house in Delhi/New Delhi/Delhi Cantt nor does my wife or any of my dependent relations including unmarried children, own either in full or in part on leasehold or free-hold basis, any plot of land or a house in Delhi/New Delhi/Delhi Cantt. 3. That I have noted the conditions in the bye laws of the house building Cooperative Society of which I am a member that I am required to inform the said society as well as the Chief Commissioner within one month if any plot of land or house is acquired by me or by my wife or my dependent relations, including unmarried children, during the period of my membership of the Society. 17. The show cause notice Ex. DW1/2 dated 26.3.1980 allegedly sent to the appellant reads as under: SHOW CAUSE NOTICE To, Sh. Kanshi Ram, C/O M/s Jai Bharat Trading Co. Machinery Merchant, 4025, Naya Bazar, DELHI. WHEREAS you were allotted plot No. N-77 in Panch Shila Park Cooperative House Building Society, the sub lease of which was executed on 3.12.1966; AND whereas you had filed an affidavit to the effect that you did not own, either in full or in part on lease hold basis any plot of land or a house in Delhi/New Delhi/Delhi Cantt. nor does your wife or any of your dependent relations including unmarried children own either in full or part on lease hold/free hold basis any plot of land or a house in Delhi/New Delhi/Delhi Cantt. which was a pre-requisite condition for the allotment of a plot; AND whereas it has come to notice that you hold the ? share in another property 25/41, Punjabi Bagh. THUS you obtained the allotment of plot No. N-77, Panch Shila Park Cooperative House Building Society after concealing the facts. You are hereby required to show cause within 30 days from the date of issue of this notice as to why the Sub-Lease of the plot in question may not be cancelled and possession be resumed for mis-statement of facts. sd/- Deputy Director (Coop.) 18. From a cumulative reading of the letter Ex. DW1/4 dated 21.1.1981, show cause notice Ex.DW-1/2 dated 26.3.1980 issued by the DDA and the written statement filed by the DDA defense set up by DDA can be culled out as under: A. Appellant has obtained allotment of the suit property and got executed the perpetual Sub-Lease Deed in respect of the suit property on basis of mis-representation of facts. That by making mis-representation of facts appellant has committed a breach in terms of Clause-III of the perpetual Sub- Lease Deed. B. Mis-representation of facts alleged to be made by the appellant was that the appellant has sworn a false affidavit by deposing that neither he, his wife or his dependents owned a residential plot/house/flat in Delhi. While an enquiry conducted by DDA revealed that he was co-owner of the plot bearing municipal No. 25/41, Punjabi Bagh, Delhi. C. A show cause notice Ex. DW-1/2 dated 26.3.1980 was duly sent to the appellant and that the same was returned by the postal authorities with an endorsement 'refused to receive'. 19. In the replication filed to the written statement of the DDA appellant averred as under: Statements made in para 1 of the preliminary objections are not admitted. It is denied that the plaintiff made any mis representation of facts to obtain the sub lease as alleged. It is denied that the defendant can cancel the sub lease as alleged. Para 2 of the preliminary objections is not admitted. It is denied that the defendant can cancel the sub lease or that the action of the defendant is just, legal or proper as alleged or that the plaintiff has no cause of action to file this suit. Para 10 of the written statement in so far as it is inconsistent with para 10 of the plaint is traversed and para 10 of the plaint is reaffirmed. It is denied that the plaintiff committed any breach of the perpetual Sub-Lease as alleged. It is submitted that the defendant have not disclosed as to how the plaintiff has committed breach of the Perpetual Sub-Lease and of which clauses of the said Lease after its execution. It is further denied that the plaintiff sworn any affidavit after the execution of the Perpetual Sub-Lease which could amount to committing breach thereof. It is further denied that the Perpetual Sub-Lease was granted on the basis of any affidavit or any other representation which can amount to breach of the Perpetual Sub Lease and no mention of any such particular affidavit finds mention in the said Perpetual Sub Lease. The plaintiff further submits that at that time the Bye-Laws of the Panchsheela Co-operative House Building Society Ltd., did not contain restrictions on members to own any other land or house and on 3.12.1966 the Perpetual Sub Lease was executed in favor of the plaintiff. The plaintiff does not recollect execution of any affidavit. Several papers were got signed from him on and before the perpetual sub lease was executed but it is submitted that no such restrictions were conveyed to the plaintiff. It was only on 1969 when the Bye-Laws of the Society were amended as to incorporate Clause (d) (e) and (f) to Clause (5) but it is submitted that the said clauses could not bind the plaintiff as the Perpetual Sub-lease in his favor had been executed on 3.12.1966. As regards the Punjabi Bagh Plot No. 25/41, it is submitted that the same was in fact purchased in 1964 for the benefit of the five sons of the plaintiff ostensibly in the name of the plaintiff and his sons, Jagdish Rai Aggarwal and Shri Ved Perkash by Sale Deed dated 22.10.1964. Initially, the plaintiff became a member of that Society but subsequently, the membership/share was transferred by the plaintiff to the name of Shri Ved Perkash, one of the sons, on 24.12.1965, and the said property is now held by Shri Jagdish Rai Aggarwal and Shri Ved Perkash for themselves and their other brothers, who are all married with their families and are all independent. The plaintiff ceased to be a member in 1965 of the said Society. 20. Perusal of the replication shows that the appellant reiterated the stand taken by him in his plaint and additionally stated that: A. In the year 1966, i.e. at the time when the perpetual Sub-Lease was executed there were no restrictions on the members of the Society from holding any other property in Delhi apart from the plot allotted to them by the Society. B. He has never sworn a false affidavit as alleged by the DDA. C. He was a benami owner of the plot in Punjabi Bagh and in any case in the year 1965 he transferred the ownership of the said plot in favor of his son Ved Prakash i.e. before the execution of the perpetual Sub-Lease Deed dated 3.12.1966. 21. On the basis of pleadings of parties under-noted 5 issues were framed by the Trial Court: 1. Whether the action of the defendant in cancelling the lease is illegal and ultra vires? OPP 2. Whether the suit is barred for want of notice Under Section 53B, DD Act? OPD 3. Whether the plaintiff has any right, title or interest in the suit property? OPP 4. Whether the plaintiff is entitled to the relief claimed? OPP 5. Relief. 22. In support of his case appellant examined himself as PW-2 and one Mr. A.B. Gupta, Office Assistant, Panch Shila Cooperative House Building Society as PW-1. 23. A.B. Gupta in his testimony as PW-1 deposed that on 6.5.1961 appellant was admitted as a member of the society. That on 19.7.1964 suit property was allotted to the appellant by the Society. In order to establish the membership of the appellant in the Society PW-1 duly proved application filed by the appellant for membership in the Society as PW-1/1, members register of the Society as Ex.PW-1/2, share allotment register of the Society as Ex. PW-1/3 and counter foil of the share certificates issued to the appellant by the Society as Ex.PW-1/4. 24. Appellant in his testimony as PW-2 deposed on the lines of the pleadings filed by him. 25. As regards affidavit Ex.PW2/D1 dated 11.6.1966 allegedly executed by him appellant deposed as under: I do not know English and cannot read and write. I can only sign in English. Several lease deeds wee presented for registration on that day and the person representing the society asked me to sign as a witness in the perpetual sub-leases of other members. I signed as a witness in several perpetual sub-lease. I do not know what was written on the papers which I signed...I have seen paper mark-X, I cannot say who got the same typed. I cannot read its contents. I never went to any Oath Commissioner. I do not know if this is the affidavit claimed by DDA to be executed by me. I never violated any terms and conditions of the bye-laws of Punchsheel Housing Society. XXXXXX by Shri A.K. Goel for DDA Ex. PW2/D1 bears my signatures. I did not file this to DDA. DDA never asked me to submit any affidavit to the effect that I have no other property. (Vol. There was no such rule in 1964 when the plot was allotted to me). There was no occasion for me to file the copy of sale deed of Punjabi Bagh plot with DDA. It is correct that lease of plot No. 77 was sought to be cancelled by DDA....It is incorrect that I filed Ex.PW2/D1 with DDA. 26. As regards ownership of the plot in Punjabi Bagh appellant deposed as under: My son Shri Ved Parkash is the member of Punjabi Bagh Refugee Housing Society. He purchased plot No. 25 Punjabi Bagh colony, Rohtak Road from Shri Sarabjit Singh. He got the sale deed executed in favor of himself, my other son Shri Jagdish Rai Aggarwal and myself. The sale deed was executed on 22.10.64 and was presented for registration on 23.10.64. The plot in Punchsheel had already been allotted to me on 19.7.1964. There was not restriction on my part to become a member of the said society or to the allotment of the plot in my favor Ex.P-2 is the certified copy of the sale deed of the Punjabi Bagh Society. On a part of the said plot No. 25, Punjabi Bagh, I and my sons jointly constructed the small house. My elder son and the other son have filed a suit against me and the two sons mentioned in the sale deed claiming ownership of the said land and property on the ground that it belongs to HUF. The said suit is still pending in the Court of Ms. Rekha Rani CJ, Delhi...My sons were not dependent on me. They use to carry on their own business and have their independent income. 27. It is relevant to note that in his examination-in-chief appellant has not deposed to the effect he had transferred ownership of the plot in Punjabi Bagh in favor of his son Ved Prakash before the execution of the perpetual sub-lease deed Ex.DW1/1 whereas in the replication appellant has emphatically averred to said effect. 28. As regards show cause notice Ex.DW1/2 dated 26.3.1980 allegedly served upon him appellant deposed as under: I cannot say whether I received letter date 26.3.80 from DDA. The address on the notice dated 26.3.80 has been correctly mentioned. (Vol. This firm was closed about 15-16 years ago). I do not remember the date when it was closed. No letter was received by me at the address of the shop during the period is lying closed. 29. On behalf of DDA Durga Dass, Superintendent, CS Cell, DDA was examined as DW-1. DW-1 proved the perpetual Sub-Lease Deed dated 3.12.1966 as Ex.DW1/1, show cause notice dated 26.3.1980 allegedly served upon the appellant as Ex. DW1/2, envelope bearing endorsement 'refused to receive' as Ex.DW-1/3 and cancellation letter dated 21.1.1981 as Ex.DW-1/4. 30. After noting the provisions of Clause-III of the perpetual Sub- Lease Deed dated 3.12.1966 learned Trial Court has held that the appellant obtained allotment of the suit property and got executed perpetual Sub-Lease Deed dated 3.12.1966 in respect of the suit property on the basis of mis- representation of facts and thus committed a breach in terms of Clause-III of the perpetual Sub-Lease. In this regard decision of the Trial Court reads as under: 11. ...Ex.P-1 was the copy of the perpetual sub-lease executed between the defendant, Punchsheel Coop. House Bldg. Society and the plaintiff dated 3rd December, 1966 in respect of plot No. N.77, Punchsheel Coop. House Building Society. As per Clause-III if it was provided that it was discovered that the sub-lease had been obtained by suppression of fact or a mis-statement, misrepresentation or fraud in the opinion of the Lesser or the lessee and the decision of the Lesser shall be final. Any breach by the sub-lessee or any person claiming through or under him then it shall be lawful for the lesssor or the lessee (with the prior consent in writing of the Lesser) to re-enter upon and take possession of the residential plot and the building and fixtures thereon and there upon the sub-lease and every thing herein contained shall cease and determine in respect of the residential plot so re-entered upon. The expressed terms of this clause says it in no uncertain words that the Lesser had the right to determine the sub-lease in case it discovered subsequently that the sub-lese had been obtained by suppression of any factor mis-statement, misrepresentation or fraud. The defendant has alleged that the Plaintiff had misrepresented to the defendant in as much as it had given an affidavit that he or his wife or any dependent relation did not own any other plot/flat or house or portion thereof in Delhi. Ex. PW2/D1 is the affidavit of the plaintiff dated 16.6.1966 duly sworn before the Oath Commissioner wherein the plaintiff has sworn to this effect that he or his wife or any dependent relation was not the member of any other society nor did they own any other flat/plot or house in Delhi. Rather in Clause-III of the affidavit, the plaintiff has specifically deposed that he had noted the conditions and the bye-laws of the Cooperative House Building Society that he was required to inform the society as well as the Chief Commissioner within one month if any plot or land or house was acquired by him or his wife or any department relation during the period of his membership in the society. The contents of the affidavit go to show that the plaintiff was very much in the knowledge of the fact that his allotment of the said plot was restricted and was made on the basis of his declaration that he or his wife or dependent relations did not own any plot or land or house on free hold or lease hold basis in Delhi/New Delhi/Delhi Cantt. The affidavit is dated 11.6.1966- whereas the sub-lease is dated 3rd December, 1966, that means that the plaintiff was required to give this affidavit prior to the execution of the sub-lease by the defendant. 12. It is, thus, seen that the lease hold rights in the said plot were transferred to the plaintiff only on his filing the said affidavit i.e. only on his giving declaration that he or his wife or dependent relations did not own any other property in Delhi or lease hold rights or free hold rights in Delhi. 31. As regards the contention of the appellant that consideration for the plot in Punjabi Bagh was paid by his son Ved Parkash and thus he was only a benami owner of the said plot and that he transferred the ownership of the said plot in favor of his son Ved Parkash before the execution of the perpetual sub-lease Ex.DW1/1 dated 3.12.1966 the learned Trial Court has held as under: 12. ...Admittedly, the plaintiff was owner of half share of property No. 25/41, Punjabi Bagh, Delhi measuring 2209 sq. yds vide registered sale deed dated 22.10.1964. Thus, the plaintiff was holding approximately 1100 sq. yds. of property No. 25/41, in Punjabi Bagh, Delhi when he swore this affidavit dated 11.6.1966. The plaintiff had alleged that he had subsequently transferred his share in the said property in Punjabi Bagh in favor of his one son. However, the plaintiff has failed to prove any valid document on record to establish this fact. He is holder of ? share in property No. 25/41, Punjabi Bagh, Delhi by virtue of a registered sale deed and the share in the same cannot be transferred unless by written and valid registered document. It is, thus, seen that when the plaintiff filed this affidavit, he was holding shares in property No. 25/41, Punjabi Bagh, Delhi, and thus, had sworn in a false affidavit which was submitted to the DDA by the society. The plaintiff had, thus, obtained the allotment of plot No. 77, Panchseel Coo. House Bldg. Society on the basis of misrepresentation of facts and as per terms of Clause-III of the perpetual sub-lease Ex. P-1, the defendant/DDA had a right to cancel the sub-lease on this ground. 32. As regards the next contention of the appellant, i.e. he was not given a show cause notice as required under Clause-IV of the perpetual Sub- Lease Deed the learned Trial Judge has held as under: The plaintiff has also challenged the cancellation on the ground that the said cancellation was done without offering him an opportunity of hearing or of remedying the breach. In my opinion, the breach was not capable of being remedied. The breach committed by the plaintiff was receiving the allotment of the plot No. 77 on the basis of a false affidavit. In any case, as per deposition of DW-1, the show cause notice was sent to the plaintiff which was received back with the remarks ?refused?. The envelope of the same is Ex.DW1/3 which is an envelope from DDA to the plaintiff at the address given by him in the sub-lease deed. It bears the postal stamp dated 2.4.1980 and also remarks ?refused?. Letter dispatched is in the usual course of the business of the defendant/DDA and the remarks of the postal authorities amount to a sufficient service of its contents of the addresses. It, thus, cannot be said that the plaintiff was denied the opportunity of bearing before the sub-lease was determined vide letter dated 21.1.1981 communicated to him. 14. I, thus, hold that the action of the DDA in cancellation of the sub-lease of the plaintiff was just, illegal and proper and as per procedure laid down by the law. This issue is accordingly decided against the plaintiff and in favor of the defendant/DDA. 33. On the basis of the afore-noted discussion vide judgment and decree dated 22.8.1996 the learned Trial Court has dismissed the suit filed by the appellant. 34. Aggrieved by the judgment and decree dated 22.8.1996 appellant preferred an appeal before the court of Additional District Judge. 35. Learned Appellate Court agreed with the decision of the Trial Court and vide impugned judgment and decree dated 3.11.2000 affirmed the judgment and decree dated 22.8.1996 passed by the learned Trial Court dismissing the suit filed by the appellant. Reasoning given by the Appellate Court reads as under: First of all, I shall deal with the contention of the appellant that no Show Cause Notice was served upon him. According to DDA it had sent a Show-Cause Notice dated 26.3.1980 which is Ex.DW.1/2 to the appellant calling upon him to show cause as to why the sub lease be not cancelled and possession be not resumed. According to the appellant, the notice was sent to his shop which was lying closed from many years. However, he admits receipt of final notice of cancellation dated 21.1.1981, which is Ex.DW.1/4. Appellant had claimed that the initial Show Cause Notice dated 26.3.1980 was sent at his shop which was lying closed from many years. If we take a look at the envelope in which the said notice was sent, we find that it was endorsed by postal authorities that the appellant had refused to accept. If a person refuses to accept the registered envelope then he is deemed to have knowledge of its contents. In this regard, I am supported by the judgment delivered by Hon'ble Supreme Court of India which is reported in AIR 1981 SC, 1284, Harcharan Singh v. Shiv Rani. Their lordships had held as under: When a registered envelope is tendered by a postman to the addressee but he refused to accept it, there is due service effected upon the addressee by refusal, the addressee must, therefore, be imputed with the knowledge of the contents thereof. The contention of the appellant that Show Cause Notice was never served upon him is false on the fact of it for another reason. Appellant had admitted that final notice Ex.DW.1/4 had been served upon him. The said notice is dated 21.1.1981. It was to the effect that Lieutenant Governor has cancelled the sub lease of plot No. N-77, Panch Shila Park, New Delhi. But the notices were sent at the same address. If the shop had been lying closed for many years then how did it mysteriously got re-opened when final notice Ex. DW.1/4 was sent by DDA. Thus it is clear that notice asking the appellant to show cause indeed was served upon him and he chose not to respond to it. He is thus liable for all the consequences which emerged thereafter. Now I shall take up the next plea of appellant that he never signed the affidavit and he did not know how to read and write English. The said affidavit was sworn on 11.6.1966. It was to the effect that he did not own any other property. The perpetual sub-lease deed of the plot at Panch Shila Park was executed on 17.8.1966. If we take a look at the copy of Sale Deed regarding property No. 25/41, Punjabi Bagh, New Delhi, we find that the sale deed was executed on 22.10.1964. It was regarding the property measuring 2219.26 sq. yds half of it was in the name of appellant Kanshi Ram and remaining half was in the name of his two sons. Thus it is clear that on the day appellant had sworn the affidavit, he already possessed plot/house at Punjabi Bagh, New Delhi. Then the present appeal has been signed by him in Hindi language. Needless to add the Vakalatnama of his earlier counsel Shri D.P. Jain and Vakalatnama of his later counsel Shri R.K. Verma were again signed by appellant in Hindi language. The plaint filed before the ld trial court was also signed in Hindi but the perpetual sub lease deed by virtue of which he became owner of property No. N-77, Panch Shila Park, New Delhi was signed by him in English language at many places. He had also signed the site plan in English as is evident from the perusal of the said documents which are on the trial court record. Probably he was not aware of the consequences, otherwise he would have signed the perpetual sub lease deed and the site plan in Hindi but unfortunately for him, he did not do so. Thus it is apparent that he has been blowing hot and cold according to his own convenience. He had sought discretionary relief of injunction from the learned trial court. No discretionary relief of injunction is to be granted to an individual who approaches to the court with un-cleaned hands. In this regard, I am supported with the judgment delivered by my lord Mr. Justice Sultan Singh which is reported in 1979 RLR Note 40. He had held as under: A plaintiff who suppresses material facts from court is not entitled to interim relief as for discretionary relief one must come to court with clean hands. In this background, he was rightly declined relief by the learned trial court. The appeal deserves dismissal and I dismiss it with costs. 36. In these circumstances, appellant has filed the present appeal directed against the judgment and decree dated 3.11.2000 passed by the learned Additional District Judge. 37. The core issue on which parties were litigating was whether appellant had obtained allotment of the suit property by misrepresenting facts. 38. Alleged misrepresentation was the declaration in the affidavit Ex.PW2/D1 allegedly submitted by the appellant deposing that he did not own any land in Delhi. Whereas DDA asserted the same to be false, appellant asserted that he did not submit the affidavit. 39. Misrepresentation means a false representation of facts made by a party in relation to an essential or incidental term to a contract. (See Section 18, Indian Contract Act, 1872, 'Law of Contract' by Cheshire, Fifoot and Furmston (XIIIth Edition) and 'Law of Contract' by Anson (XXVIth Edition). 40. Burden of proof of proving the misrepresentation is upon the person who alleges the same. 41. To establish that the said false representation allegedly made by the appellant amounts to 'misrepresentation of facts' it was essential for DDA to first establish that there were restrictions on the members of the Society, their spouses and dependents from owning any residential property in Delhi apart from plots allotted to them by the Society. 42. It was urged by learned counsel for the appellant that in the written statement filed by DDA there is no averment to the effect that there were restrictions on the members of the Society, their spouses and dependents from owning any residential property in Delhi apart from plots allotted to them by the Society. Thus counsel urged that the very foundation of the defense was missing. 43. It is well settled that a party can be permitted to adduce evidence on the basis of the case pleaded by him in his pleadings. As in the decision reported as Abubakar v. Harun the Supreme Court observed as under: No amount of proof can substitute pleadings which are the claim of a litigating party. 44. The purpose of this principle is two-fold: (i) to appraise the opposite party, distinctly and specifically, of the case he is called upon to answer so that he may properly prepare his defense and is not taken by surprise; (ii) to maintain an accurate record of the cause of action as a protection against a second or subsequent proceeding founded upon the same allegations. 45. However each and every variance between the pleading and proof is not fatal. Where parties are aware of the controversy and go to trial with full knowledge that a particular question is at issue, absence of specific pleading is a mere irregularity. 46. In the decision reported as Bhagwati Prasad v. Chandramaul the Supreme Court observed as under: There can be no doubt that if a party asks for a relief on a clear and specific ground, and in the issues or at the trial, no other ground is covered either directly or by necessary implication, it would not be open to the said party to attempt to sustain the same claim on a ground which is entirely new. The same principle was laid down by this Court is Sheodhar Rai and Ors. v. Suraj Prasad Singh and Ors. . In that case, it was held that where the defendant in his written statement sets up a title to the disputed lands as the nearest reversioner, the Court cannot, on his failure to prove the said case, permit him to make out a new case which is not only made in the written statement, but which is wholly inconsistent with the title set up by the defendant in the written statement. The new plea on which the defendant sought to rely in that case was that he was holding the suit property under a shikmi settlement from the nearest reversioner. It would be noticed that this new plea was in fact not made in the written statement, had not been included in any issue and, therefore, no evidence was or could have been led about it. In such a case clearly a party cannot be permitted to justify its claim on a ground which is entirely new and which is inconsistent with the ground made by in its pleadings. But in considering the application of this doctrine to the facts of the present case, it is necessary to bear in mind the other principle that considerations of form cannot over-ride the legitimate considerations of substance. If a plea is not specifically made and yet it is covered by an issue by implication, and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by evidence. The general rule no doubt is that the relief should be founded on pleadings made by the parties. But where the substantial matters relating to the title of both parties to the suit are touched, though indirectly or even obscurely in the issue, and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. What the Court has to consider in dealing with such an objection is : did the parties know that the matter in question was involved in the trial, and did they lead evidence about it ? If it appears that the parties did not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it, that undoubtedly would be a different matter. To allow one party to rely upon a matter in respect of which the other party did not lead evidence and had had no opportunity to lead evidence, would introduce considerations of prejudice, and in doing justice to one party, the Court cannot do injustice to another. 47. In the decision reported as Kali Prasad Agarwalla (Dead) by LR's and Ors. v. Bharat Cooking Coal Ltd. and Ors. the Supreme Court observed as under: It was, however, urged for the appellants that there is no proper pleading or issue for determination of the aforesaid question and the evidence let in should not be looked into. It is too late to raise this contention. The parties went to trial knowing fully well what they were required to prove. They have adduced evidence of their choice in support of the respective claims. That evidence has been considered by both courts below. They cannot now turn round and say that the evidence should not be looked into. This is a well accepted principle. 48. In the decision reported as J.B. Mangharam and Co. and Anr. v. ESI Corporation Division Bench of the Madhya Pradesh High Court observed as under: So far as the instant case is concerned, the question, therefore, is whether the die of the power press is a dangerous part of the machinery within the meaning of the aforesaid provision. We have to look to the substance and not the form of the pleading. Even if a plea is not properly worded, it would make no difference if the substance is clear and the other side is not likely to be misled thereby. The whole object of the pleadings is to bring the parties to an issue and if a pleading fulfills this object no objection can be entertained merely on the ground that it is not expressed in particular terms. We may here quote the following observations of their Lordships of the Supreme Court regarding the construction of pleadings in Kedar Lal v. Hari Lal : The Court would be slow to throw out a claim on a mere technicality of pleading when the substance of the thing is there and no prejudice is caused to the other side, however clumsily or inartistically the plaint may be worded. 49. In the decision reported as Smt. Hirabai Chauhan v. Mst. Bhagirathibai Madhya Pradesh High Court observed as under: There was, it will be seen no specific plea that the plaintiff's predecessors had, at some time in the past, migrated from any State or region where the Bombay School of Hindu Law was in force or that they had carried with them their personal law. No issue was, therefore, framed on this particular aspect of the matter. Even so, it may well be regarded as covered by the general issue whether the parties are governed by the Bombay School of Hindu Law. The point is that both parties fully knew and understood what the real issue was and also led evidence in support of their contentions. That being so, none of them could be regarded as having been taken by surprise or prejudiced in any manner. In this situation, there was, even in the absence of a specific issue on the point no mis-trial such as might vitiate the decision: Nagubhai v. B. Shama Rao , Kamesharamma v. Subba Rao AIR 1963 SC 884 and Kunju Kesavan v. M.M. Philip . Indeed even when there is no specific plea but the matter is covered by an issue by implication and the parties go to trial with full knowledge that the plea is involved in the trial and adduce evidence thereon, the absence of the plea is a mere irregularity which did not cause any prejudice to the parties, and Bhagwati Prasad v. Chandramaul ... 50. In the instant case appellant was fully conscious of the fact that whether there were restrictions on the members of the Society their spouses and dependents from owning any residential property in Delhi apart from plots allotted to them by the Society or not was a 'question involved in the suit' as evident from the fact that the appellant in his replication averred to the effect that at the time when the perpetual sub-lease Ex.DW1/1 dated 3.12.66 was executed there were no restrictions on the members of the Society or their dependents from owning any residential property in Delhi apart from plots allotted to them by the Society (portion underlined in 19 above). Not only this, appellant also led evidence in support of said averment by deposing in his examination-in-chief that there were no restrictions on the members of the Society and their dependents from owning any residential property in Delhi apart from plots allotted to them by the Society (portion underlined in para 26 above). 51. In view of the ratio laid down by the Supreme Court in Bhagwati Prasad and Kali Prasad's cases (supra), the absence of the averment that there were restrictions on the members of the Society or their dependents from owning any residential property in Delhi apart from plots allotted to them by the Society in the written statement of DDA is of no effect for the reason appellant was fully aware that the said question was at issue in the suit. 52. Thus in order to decide whether the appellant obtained the allotment of the suit property by misrepresenting facts and thus committed a breach in terms of Clause-III of the perpetual sub-lease deed Ex.DW1/1 dated 3.12.66 the learned Trial Court was required to consider following 5 questions: A. Whether there were restrictions on the members of the Society, their spouses and dependents from owning any residential property in Delhi apart from plots allotted to them by the Society? B. Whether the appellant was a benami/ostensible owner of the plot bearing No. 25/41, Punjabi Bagh, Delhi? C. Whether the appellant transferred the ownership of the plot in Punjabi Bagh in favor of his son Ved Prakash before the execution of perpetual sub-lease ex.DW1/1 dated 3.12.66? D. Whether the appellant has sworn a false affidavit Ex.PW2/D1 dated 11.6.1966 as alleged by DDA? E. Whether the show-cause notice Ex.DW-2 dated 26.3.1980 was duly sent to the appellant as claimed by DDA? 53. As regards question 'A' suffice would it be to note the 'Large Scale Acquisition and Development and Disposal of Land in Delhi Policy, 1961' (hereinafter referred to as the Policy) notified by the Government of India on 2.5.1961. Clause 10(a) of the said policy reads as under: No plot should be allotted to any person, who whose wife/husband or any his/her dependent relations including unmarried children owns a house or residential plot of land in Delhi, New Delhi or Delhi Cantonment. The question of making an exception in the case of persons living in a congested locality or whose family has out-grown should be considered after some experience has been gained in the working of the scheme. 54. Though said policy was not filed by DDA before the trial court yet this court can take judicial notice of the said policy in view of Section 57(1) of the Indian Evidence Act which provides that the Court can take judicial notice of the laws in India. 55. The said policy has been noted in number of judicial pronouncements. For instance, in the decision reported as Rashmi Nagrath v. Sarva Priya Cooperative House Building Society Ltd. Division Bench of this Court noted Clause 10(a) of the Policy by observing as under: Apart from that, Ministry of Home Affairs, Government of India vide its circular dated 2.5.1961 regarding allotment of land had directed that no plots should be allotted to any person, whose wife/husband or any of his/her dependent relation including unmarried children own a house or residential plot of land in Delhi/New Delhi/Delhi Cantt. 56. At this stage, it is necessary to note following three dates: a) 6.5.1961 .... Admission of the appellant as a member of the Society b) 19.7.1964 .... Allotment of the suit property by the Society in favor of the appellant. c) 3.12.66 .... Execution of perpetual sub-lease deed Ex.DW1/1. The Policy was notified on 2.5.1961. Thus, on all the afore-noted three dates there were restrictions on the members of the Society, their spouses and dependents from owning any residential property in Delhi apart from the plots allotted to them by the Society. 57. Appellant has merely raised a bald averment that at the time of the allotment of the suit property and execution of perpetual sub-lease deed Ex.DW1/1 there were no restrictions on the members of the Society, their spouses and dependents from owning any residential property in Delhi apart from the plots allotted to them by the Society. No material has been placed on record by the appellant in support of this contention. 58. In view of Clause 10(a) of the Policy I hold that at the time of admission of appellant as a member of the Society, allotment of the suit property in favor of the appellant and execution of the perpetual sub-lease deed Ex.DW1/1 there were restrictions on the members of the Society, their spouses and dependents from owning any residential property in Delhi apart from plots allotted to them by the Society. 59. Before proceeding to consider questions 'B', 'C', 'D' and 'E' I would like to note following judicial pronouncements: I Haryana State Industrial Development Corporation v. Cork Manufacturing Co. : In said decision, the Supreme Court observed as under: Let us now consider whether the three courts below were justified in decreeing the suit of the respondent. Before we consider the findings of the courts below, it may be kept on record that in the second appeal, the High Court held that no question of law much less any substantial question of law arose in the same. On a perusal of the, judgment of the High Court in the second appeal, we also do not find that any substantial question of law, as enumerated in Section 100 of the CPC was in fact raised before the High Court. So far as the trial court is concerned, it came to a finding of fact that the respondent was found to be in possession of the suit plot in spite of resumption notice having been issued by the appellant. The trial court also came to a finding of fact that it was due to inaction on the part of appellant to remove the electric wires and poles from the suit plot and the explanation given by the respondent for not being able to take any step to raise construction in compliance with Clause 8 of the agreement must be accepted and therefore a decree for permanent injunction should be granted in favor of the respondent. These findings of fact were echoed by the appellate court as well. It is well settled that in a second appeal High Court is not permitted to set aside the findings of fact arrived at by the two courts below until and unless it is shown that such findings of fact are either perverse or arbitrary in nature. Mr. Mohan learned Additional Solicitor General, however, could nor satisfy us that the findings of the courts below which were also accepted by the High Court in the second appeal were either perverse or arbitrary. Accepting this position, the High Court in second appeal found that the appellant bad failed to satisfy it that the findings recorded by the courts below suffered from any infirmity or that they were contrary to the record. The High Court also concluded that there was no question of law much less any substantial question of law which arose in the second appeal. Before we part with this judgment, we keep on record that Mr. Mohan appearing for the appellant substantially argued before us on the issue that the High Court was not justified in rejecting the application for acceptance of additional evidence. We have already discussed this aspect of the matter herein before and after such discussion, we have already held that there was no infirmity in that part of the judgment by which the High Court had rejected the application for acceptance of additional evidence. II G. Mahalingappa v. G.M. Savitha : In said decision the Supreme Court observed as under: As held herein earlier the High Court had set aside the concurrent findings of fact not on consideration of the evidence adduced by the parties but set aside the concurrent findings of fact on the basis of findings contrary to the evidence on record and without considering the findings of fact arrived at by the appellate court and the trial court. From the judgment of the High Court we further find that the concurrent findings of fact were set aside not on consideration of the findings of fact arrived at by the courts below but only on the basis of the arguments of the learned Advocate of the respondent. This was also not permissible to the High Court in Second Appeal to come to a contrary findings of its own only on the basis of the arguments of the learned counsel for the respondent without considering the findings of the trial court as well as the appellate court. (See , Gangajal Kunwar (Smt.) and Ors. v. Sarju Pandey (Dead) by LRs and Ors.]). It is equally settled that High Court in second appeal is not entitled to interfere with the concurrent findings of fact arrived at by the courts below until and unless it is found that the concurrent findings of fact were perverse and not based on sound reasoning. We ourselves considered the evidence on record as well as the findings of fact arrived at by the two courts below. From such consideration we do not find that the concurrent findings of fact arrived at by the appellate court as well as the trial court were either perverse or without any reason or based on non-consideration of important piece of evidence or admission of some of the parties. We are therefore of the view that the High Court was not justified in interfering with the concurrent findings of fact arrived at by the appellate court as well as the trial court which findings were rendered on consideration of the pleadings as well as the material (oral and documentary) evidence on record. III Hero Vinoth (minor) v. Seshammali : In said decision, the Supreme Court summarized the scope of the power of the High Court under Section 100 of the Code of Civil Procedure as under: The principles relating to Section 100 CPC, relevant for this case, may be summarised thus: (i).... (ii)... (iii) The general rule is that High Court will not interfere with concurrent findings of the Courts below. But it is not an absolute rule. Some of the well recognized exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to 'decision based on no evidence', it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding. 60. Keeping in mind the afore-noted law I shall now determine the correctness of the decision of the courts below on the questions 'B', 'C', 'D' and 'E'. 61. Pertaining to questions 'B' and 'C' the Courts below have noted that no evidence was led by the appellant to establish that he was a benamidar/ostensible owner of the plot in Punjabi Bagh and that he had transferred ownership of the said plot in favor of his son before the execution of the perpetual sub-lease deed Ex.DW1/1. On said reasoning the courts below have answered in negative on the questions 'B' and 'C'. 62. A perusal of the trial court record shows that the courts below have rightly held that no evidence was led by the appellant to establish that he was a benamidar/ostensible owner of the plot in Punjabi Bagh and that he had transferred ownership of the said plot in favor of his son before the execution of the perpetual sub-lease deed Ex.DW1/1. 63. The version of the appellant receives a further setback in light of the fact that appellant in his testimony as PW-2 did not depose to the effect that he transferred the ownership of the plot in Punjabi Bagh in favor of his son Ved Prakash before the execution of the perpetual sub-lease Ex.DW1/1. 64. Pertaining to question 'D' version of the appellant was that he never executed affidavit Ex.PW2/D1 dated 11.6.66. That he could not read or write English and could sign in English. That officials of Society obtained his signatures on certain papers. That he signed the said papers without reading or understanding the contents of the same. 65. Noting that the date of affidavit Ex.PW2/D1 is antecedent to the execution of the perpetual sub-lease Ex.DW1/1 the learned Trial Court has held that there is a strong presumption that a condition precedent of allotment of the plots of the Society was that members of the Society were required to submit an affidavit declaring that neither they nor their spouses and dependents own any residential property in Delhi and that in fulfilllment of said condition appellant submitted affidavit Ex.PW2/D1. 66. The version of the appellant that he could not read or write English was noted and disbelieved by the appellate court. 67. Last contention advanced by the appellant that he did not receive show cause notice Ex.DW1/2 dated 26.3.1980 for the reason the shop to which show cause notice was sent was lying closed since last 15-16 years was rejected by the Trial Court on the reasoning that there was no occasion for the postman to falsely endorse 'refused to receive' on the envelope Ex.DW1/3. 68. The learned Appellate Court went a step further and had noted that show cause notice Ex.DW1/2 dated 26.3.1980 and cancellation letter Ex.DW1/4 dated 21.1.1981 were sent to the same address 'M/s Jai Bharat Trading Co, Machinery Merchant, 4025, Naya Bazaar, Delhi' and that appellant admitted in his testimony that the cancellation letter dated 21.1.1981 was received by him at said address. After noting the said facts the learned Trial Court has held that version set up by appellant that shop M/s Jai Bharat Trading Co was lying closed since last 15-16 years cannot be believed in the teeth of the fact that the cancellation letter Ex.DW1/4 dated 21.1.1981 was received by him at the said shop Jai Bharat Trading Co. 69. On the basis of their decisions on questions 'B', 'C', 'D' and 'E' both the courts below have concurrently held that the appellant had obtained allotment of the suit property by misrepresenting facts and thus committed a breach in terms of Clause III of the perpetual sub-lease Ex.DW1/1 dated 3.12.66. These are findings of facts. 70. In view of judicial pronouncements noted in para 58 above it can safely be held that this Court has no power to interfere with the findings of the fact unless there is an error of law vitiating the findings of the fact. It has no power to reappraise the evidence or to find out what is the weight attached to a particular evidence. 72. No error of law or perversity has been pointed out by the appellant in the reasoning or in the appreciation of evidence by the courts below in the arriving at the said findings of facts. 73. Circumstances of the case and evidence on record probablizes the view taken by the Courts below. Reasoning adopted by the courts below is sound. 74. In view of above discussion I do not find any merits in the present appeal. 75. The same is dismissed. 76. No costs.

Author: P Nandrajog

Kanshi Ram (Deceased) Through His ... vs Delhi Development Authority on 18 January, 2008

Delhi High Court

[Complete Act]

Central Government Act

ORDER Vikramajit sen. J. 1. The Petitioners have prayed for the issuance of a writ of mandamus commanding the Respondents to regularise the services of the Petitioners on the posts they have been working with effect from the date of their respective appointments and grant them all the consequential benefits including T.A., D.A., HRC, CCA and regular pay scales, which the permanent employees performing the same duties are getting. A writ of certiorari has also been prayed, inter alia, for quashing of service regulations of NIEPA (Respondent No. 2). 2. The Petitioners have been working with the Respondent No.2 for several years. It is alleged that the Respondent No. 2 has manipulated and managed breaks in their service so that they cannot claim regular employment for a period of 240 days in a given year. It is stated that the work performed by the Petitioners is of a perennial nature. Hence the practice adopted by the Respondents is not only mala fide but also in violation of the Petitioners fundamental rights guaranteed to them under Articles 14, 16 and 21 of the Constitution, and contrary to the Directive Principles laid down under Articles 38 and 39-D of the Constitution. 3. The defense of the Respondents primarily is that the Petitioners, like several other persons, are engaged contractually from time to time in various projects that are undertaken by the Respondents. It is averred that there are no regular vacancies at the present moment. The Respondents have relied on the factum of the factum of the Petitioners services having been engaged in various projects over the past several years to vindicate the assertion that there are no malafides on the part of the Respondents. As regards the break in service it is submitted that this is necessitated whenever the Petitioners, and other persons similarly placed, complete the project to which they are then appointed. Thereafter they are engaged in any project undertaken by NIEPA (Respondent No.2). It is further submitted that the Petitioner had themselves participated in various Selection for appointment to regular posts which had occurred. Even though they had failed to qualify in the tests and the Selection, while they were not even regular appointment, their engagement on projects, as and when available, had continued. It was further submitted that there is no substance or basis for the Petitioners to predicate that their services as heretofore engaged, would be discontinued. Reliance has also been placed on the previous order of this Court in CWP 1298/2001. The writ petition has been dismissed keeping in view similar submissions made on behalf of the Respondents. 4. A party cannot challenge, on equitable grounds, a practice in which he has acquiesced and participated. In service law it is well established that having once participated in a selection process, such a person cannot be heard to challenge the legality of the holding of such Selection. It may be open to him to assail the fairness of the Selection. For this reason the argument of learned counsel for the Petitioners that they ought to have been automatically absorbed into regular vacancies which have occurred several years ago cannot now be countenanced and entertained. The fact, however, remains that post the last Selection, if they have continued to work in various projects, the right to claim that they should first be absorbed in future regularisation may not be jeopardised and should be protected. That, however, would fall for minute consideration in the facts prevailing at that point in the feature. 5. Learned counsel for the Petitioner has relied on a decision delivered by this court on May 30, 2001 in C.W.P 6369/2000 - Om Parkash & Ors. v. The Director, AIIMS and another. In that case in respect of other fellow employees the Supreme Court had passed certain orders which the Respondent- AIIMS was bound to comply with. It was in that backdrop that I had restrained the Respondent-AIIMS from terminating the services of the petitioner. 6. In my view, however, the Petitioners are not without jural succour. Their right and livelihood can be well protected within the parameters of the submissions of learned counsel appearing on behalf of Respondents. Mr. Anil Kumar had reiterated the submissions made by him in C.W. 1298/2001 where he had submitted that "if any further projected are forthcoming, where the Petitioners would be suitably, as heretofore, he will be duly considered". Since the petitioners are Project Typists/Stenographers, it is difficult to conceive of any project where they would not be suitable for performing similar work. Hence, in view of the assurance given by learned counsel on behalf of Respondent, that the Petitioners will be considered for appointment to any further projects in preference to any fresh or new applicants, their interests are sufficiently safeguarded. Hence I do not propose to enter into the controversy as to whether a Certiorari should issue in respect of the project-wise employment of the Petitioners. 7. The writ petitions are accordingly disposed of with the direction to the Respondents that they shall first consider the Petitioners for appointment, after the expiry of their present engagement, to any other project in the future. In case the Respondents act in an arbitrary or capricious manner, the Petitioners are granted leave to assail such a decision. In the event that a regular vacancy occurs for posts to which the Petitioners have been rendering service, they shall be duly considered by granting age relaxation, if necessary. They shall be offered remunerations not less than what they are presently receiving. It is, however, expected that in respect of projects in the future the remunerations shall be increased as recognized by the Government. 8. In Gujarat Agricultural University v. Rathod Labhu Bechar & Ors, 2001 1 A.D. (S.C.) 327, the Hon'ble Supreme Court observed as follows: "In fact, taking work,from daily wage worker or ad hoc appointee is always viewed to be only for a short period or as a stop gap arrangement, but we find new culture is growing to continue with it for a long time, either for financial gain or for controlling its workers more effectively with sword of damocles hanging over their heads or to continue with favored one in the cases of ad hoc employee withstaling competent and legitimate withstaling competent and legitimate claimants. Thus we have no hesitation to denounce this practice. If the work is of such a nature, which has to be taken continuously and in any case when this pattern become apparent, when they continue to work for year after year, only option to the employer is to regularise them. Financial viability no doubt is one of the considerations but then such enterprise or institution should not spread its arms longer than its means. The consequent corollary is, where work is taken not for a short period or limited for a season or where work is taken not for a short period or limited for a season or where work is not of part time nature and if pattern shows work is to be taken is no justification to keep workers. In such situation a legal obligation is cast on an employer if there be vacant post to fill it up with such workers in accordance with rules if any and where necessary by relaxing the qualifications, where long experience could be equitable with such qualifications. If no post exists then duty is cast to assess the quantum of such work and create such equivalent post for their absorption." 9. It is also expected that the Respondents should review the practice presently adhered to by them and if vacancies occur regularly, they should adopt a practice which would not be in violation of the law laid down by the Hon'ble Supreme court, that is, that where employment is of a perennial nature, regular appintements in respect thereof should be carried out. It need hardly be stated that organisations such as NIEPA, regularly receiving funds from the Government, are not expected to adopt unfair labour practices and carry out breaks in employment with the objective of defeating the rights of persons such as the Petitioners, who have worked with them for several years. As in C.W.P. 1098/2001 the Respondents shall be bound by their submissions. 10. In these circumstances there shall be no order as to costs.

Author: V Sen.

Sanjay Sharma & Ors. vs Union Of India & Anr. on 1 August, 2001

Delhi High Court

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CWP No.3231 of 2009 DATE OF DECISION: 2.3.2009 Moti Khan ...Petitioner VERSUS State of Punjab & Others ...Respondents CORAM HON'BLE MR.JUSTICE PERMOD KOHLI PRESENT: Mr.Rajeev Anand, Advocate for the petitioner Mr.BS Chahal, DAG, Punjab Permod Kohli, J. (Oral) Notice of motion. On the asking of this Court, Mr.B.S.Chahal, DAG, Punjab accepts notice on behalf of the respondents-State. With the consent of the counsel, this petition is disposed of at motion stage. The petitioner has assailed the notice dated 19.1.2009 (Annexure P- CWP No.3231 of 2009 :2: 7) issued to him for termination of service, for non-passing of the departmental examination. The petitioner has already filed his reply dated 28.1.2009 (Annexure P-8). No decision has been taken till date. In view of the above, this petition is disposed of with a direction to respondents to take a decision on the reply (Annexure P-8) . Needless to say, in the event the claim of the petitioner is to be rejected, it shall be by a reasoned and speaking order and the order shall not be implemented for a period of one week. (PERMOD KOHLI) JUDGE 2.3.2009 MFK

Moti Khan vs State Of Punjab & Others on 2 March, 2009

Punjab-Haryana High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 3555 of 2008(W) 1. CHERIYAN JOSEPH @ THANKACHAN, ... Petitioner Vs 1. THE SUPERINTENDENT OF POLICE, ... Respondent 2. THE CIRCLE INSPECTOR OF POLICE, 3. THE SUB INSPECTOR OF POLICE, 4. ANTONY, S/O APPACHAN, 5. R.PRASANNAN, 6. K.N.MURALEEDHARAN, 7. STATE OF KERALA, REPRESENTED BY THE For Petitioner :SRI.K.GOPALAKRISHNA KURUP For Respondent :SRI.ABRAHAM MATHEW (VETTOOR) The Hon'ble MR. Justice ANTONY DOMINIC Dated :24/06/2009 O R D E R ? IN THE HIGH COURT OF KERALA AT ERNAKULAM +WP(C).No. 10232 of 2009(Y) #1. M.JAYASANKAR,JAYAKARTHI, CMC4, ... Petitioner Vs $1. THE CHERTHALA MUNICIPAL COUNCIL, ... Respondent 2. THE CHERTHALA MUNICIPALITY,REP; BY THE 3. THE TRIBUNAL FOR LOCAL SELF GOVERNMENT ! For Petitioner :SRI.G.SUKUMARA MENON ^ For Respondent : No Appearance *Coram The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN % Dated :01/07/2009 : O R D E R THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------------- W.P(C).No.10232 OF 2009 ------------------------------------------- Dated this the 1st day of July, 2009 JUDGMENT The petitioner is aggrieved by Ext.P3, an order rejecting the application for building permit. That was challenged before this Court. Noticing that Ext.P3 is an appealable order, this Court issued Ext.P4, dismissing the challenge and preserving the right of the petitioner to challenge the impugned decision in a properly constituted appeal. Such an appeal was preferred but has been rejected as per Ext.P6 on ground that it is beyond the period prescribed and even beyond the period that could have been condoned by the Tribunal for Local Self Government Institutions in terms of the Kerala Municipality Act and the Rules as they now stand. The challenge in this writ petition is confined to the legality of that order on the face of the statutory provision on the basis of which the Tribunal has issued the impugned decision. I do not find any legal infirmity of jurisdictional error in the impugned order. The writ petition fails. The same is accordingly dismissed. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. kkb.1/7.

Cheriyan Joseph @ Thankachan vs The Superintendent Of Police on 24 June, 2009

Kerala High Court

IN THE HIGH comm' 0;? KARNATAKA, BANGA.:;aRE DATED THIS THE Sm DAY 012* SE)P'FEb.¥Ii?,..'3Ii?v§V.2h('§)ui}5V$"" THE I~i0N'BLIéI MR. .3UsTiciE is:,%Srf%.B313D%1~1;é;R{M CRL.A. 1s{g_;3?2 C:F 29o5 " BETWEEN: 1 vA1RAMUmG0wDA ' . » s/o.LATE%KuLLEe~o%N1>A%%L AGED ABOUT 75 % * ' K/O.'kfl1;NC:HEGQW'DA ;Is:Q3r>PALU MYS?QR1{iTQ"'---- > 2 SWAMANNA @'SWAM3f'GQW-DA S/O.VA1RAMU'FJIGOWDA"«.__"-.,.___ M AGED ABOU'I'~45 YEARS' R/O.MANCHE1QOWDA"KQ}'PALU MYSORETQ 3 js>UT'1'A TEA' ' NGA E/QV,VA1RAIfx1U}j)IQOWDA AG1E:>;%ABQLI'1; 4G_Y.EARS R/c3;MANcH§~3G0wDA KOPPALU 2 ' MYSORE Te % APPELLANTS M 1\.§QH1> i3ss.§AN S}-IAIKH, ADVOCATE) SL1 X _ STATE 09 KARNATAKA

Author: K.Sreedhar Rao

Vairamudigowda vs State Of Karnataka By Mettagalli ... on 5 September, 2008

Karnataka High Court

JUDGMENT S.K. Pande, J. 1. Being aggrieved by the judgment-decree dated 5-8-94, passed by IX ADJ, Bhopal in C.A. No. 47-A/92, affirming the judgment-decree dated 16-4-92, passed by II Civil Judge Class II, Bhopal in C.S. No. 138-A/85, plaintiff/appellant has preferred this appeal under Section 100, CPC. 2. The appeal has been heard on the following substantial questions of law :-- "(i) Whether in view of the evidence available on record, both the Courts below have erred on the question of law in not decreeing the suit of the appellant for bonafide requirement of the son of the plaintiff/appellant for opening his clinic in the relevant premises ? (ii) Whether both the Courts below have erred in law in not decreeing the suit of the plaintiff on the ground of alleged subletting of the suit premises by the defendant/tenant ?" 3. Plaintiff Late Shanti Devi was owner of suit shop No. 7, House No. 11, New Market, T.T. Nagar, Bhopal. Admittedly defendant/respondent remained a tenant of Late Shanti Devi on monthly rent of Rs. 350/- per month. Plaintiff Late Shanti Devi instituted C.S. No. 138-A/85 seeking eviction of tenant- defendant/respondent under Section 12(1)(b), (f) of the M.P. Accommodation Act (hereinafter referred as 'the Act') on the ground that the tenant unlawfully sub-let, assigned or otherwise parted with the possession of suit shop in favour of one Darshanlal and the suit shop is bonafide required by her son Dr. K. Kukreja for opening a clinic of his own and there is no other alternative suitable accommodation available in the city. The suit was resisted by the tenant-defendant/respondent stating inter alia that the suit shop never been sub-let or parted with possession in favour of Darshanlal, in fact Darshanlal was looking after the business of defendant/respondent as an employee. The suit shop is not bonafide required for opening a clinic by Dr. K. Kukreja. The Civil Judge in C.S. No. 138-A/85 vide judgment dated 16-4-92 held that grounds seeking eviction under Section 12(1)(b), (f) of the Act have not been proved. Therefore, dismissed the suit of plaintiff Late Shanti Devi. Being aggrieved, she preferred C.A. No. 47-A/92 before IX ADJ, Bhopal. The Court below held that tenant-defendant/respondent in fact sublet the suit shop to one Darshanlal. However, the sub- tenancy remained only for a period during 1976 to 1981. Therefore, there being no sub-tenancy on the date of institution of suit (23-11-83), affirming the judgment-decree passed by Civil Judge, dismissed the appeal vide impugned judgment dated 5-8-94. Being aggrieved, plaintiff Late Shanti Devi preferred the present appeal under Section 100, CPC. Since plaintiff late Shanti Devi died, on the basis of registered will dated 19-8-99, son Dr. K. Kukreja has been brought on record. 3. It is contended that in view of the evidence available on record, both the Courts below have erred on the question of law in not decreeing the suit of the appellant for bonafide requirement for opening a clinic in the suit shop. Both the Courts below have erred in law not decreeing the suit on the ground of alleged sub-letting of the suit shop by the tenant- defendant/respondent. 4. Dr. Kanhaiyalal Kukreja (P.W. 1) is son of plaintiff Late Shanti Devi. This witness has stated that he obtained the decree of MBBS in the year 1978. Thereafter, in 1982, he obtained the degree of M.S. This suit shop is bonafide required by him for opening a clinic of his own and there is no other alternative suitable accommodation available in the city. Plaintiff Late Smt. Shanti Devi (P.W. 3) also has stated that her son Dr. Kanhaiyalal Kukreja (P.W. 1) bonafide requires the suit shop for opening a clinic of his own and there is no other alternative suitable accommodation available in the city. The suit shop is in New Market, T.T. Nagar, Bhopal ideally suitable for opening a clinic by Dr. Kanhaiyalal Kukreja (P.W. 1). Ramchandra Savariya (P.W. 2) is the other witness to state that Dr. Kanhaiyalal Kukreja (P.W. 1) expressed his desire and need of opening a clinic of his own in the suit shop. Dwarka Das (D.W. 1) has stated that during the year 1976-77, two shops were let out by plaintiff Late Shanti Devi and her husband. The suit shop is not bonafide required by her son Dr. Kanhaiyalal Kukreja (P.W. 1) for opening a clinic of his own. Dr. Kanhaiyalal Kukreja (P.W. 1) in his cross-examination has admitted that during the year 1975-1977, few shops were given by his father to some other tenants. Letting out different shops during the year 1975-1977 as stated by Dwarka Das (D.W. 1) in fact can not negative the statement of Dr. Kanhaiyalal Kukreja (P.W. 1) and Late Smt. Shanti Devi (P.W. 3). Dr. Kanhaiyalal Kukreja (P.W. 1) obtained the Degree of MBBS in the year 1978. Thereafter, completing further studies, obtained the degree of MS in the year 1982. He is in Government service. Dr. Kanhaiyalal Kukreja (P.W. 1) has stated that private practice by him is not prohibited under the rules. Dr. Kanhaiyalal Kukreja (P.W. 1) has stated that the suit shop is bonafide required by him for opening a clinic of his own in the New Market, T.T. Nagar, Bhopal. There is no other alternative suitable accommodation available in the city. On the death of plaintiff Late Smt. Shanti Devi, Dr. Kanhaiyalal Kukreja (P.W. 1) with reference to registered will dated 19-8-99 has become owner of the suit shop. The Courts below, therefore, misread the evidence with reference to the fact of Dr. Kanhaiyalal Kukreja (P.W. 1) being in Government service and few other shops during the year 1975-1977 were let out by his father to other tenants. Even otherwise the suitability of the accommodation for opening a clinic of his own is a discretion of Dr. Kanhaiyalal Kukreja (P.W. 1). The suit shop being situated in New Market, T.T. Nagar is ideally suitable for opening a clinic by Dr. Kanhaiyalal Kukreja (P.W. 1). Ground of eviction under Section 12(1)(f) of the Act accordingly is available to him. 5. Ex. P-26 is the deed of partnership said to have been constituted between tenant-defendant/respondent Dwarka Das and Darshanlal. With reference to this partnership deed dated 23-11-76, Darshanlal remained in occupation of suit shop. Dr. Kanhaiyalal Kukreja (P.W. 1) has stated that having parted with possession in favour of Darshanlal, tenant-defendant/respondent was carrying out his business of Gyan Restaurant, 1464 Quarters, Bhopal. Ramchandra Savariya (P.W. 2) also has stated that Darshanlal remained in possession of the suit shop. Darshanlal was carrying the business in the name of Darshan General Stores. Dwarka Das (D.W. 1) has stated that his nephew Darshanlal was working as an employee in his shop. This witness in cross-examination has admitted that for purpose of establishment, Darshanlal was not shown to be an employee of the firm constituted vide Ex. P-26. Dwarka Das (D.W. 2) in his statement Para 2 has admitted that vide Ex. P-26, a partnership was constituted and the partnership business was carried out in the suit shop. This makes it clear that tenant-defendant/respondent by constituting partnership vide Ex. P-26 sublet or parted with possession of suit shop in favour of Darshanlal (D.W. 1). In Gajanan Dattatraya v. Sherbanu Hosang Patel and Ors., AIR 1975 SC 2156, it has been held that provisions of the Act indicate that a tenant is disentitled to any protection under the Act if he is within the mischief of the provisions of 13(1)(e), namely, that he has sublet. The language is that if the tenant has sublet, the protection ceases. It can not be contended that the sub-letting must continue at the date of the suit for passing the decree for eviction. The tenants liability to eviction arises once the fact of unlawfully sub-letting is proved. In Navalmal v. Laxansingh, 1991 MPLJ 812, consider the Gajanan Dattatraya's case (supra), it has been held :-- "If the tenant has sub-let or parted with possession of the premises or has done any act injurious to the interest of the landlord, cause of action having once accrued to the landlord under the M.P. Accommodation Control Act the Court would not deny the relief of ejectment even after the tenant was prepared to reverse or had in fact reversed and factual possession. The provision rendering tenant liable to ejectment on the ground of sub-letting parting with possession or assignment of interest is founded on the principle that the tenant who has shown by his such conduct that he does no mere need the premises for himself must yield it to the landlord and no one else nor he should be permitted to enrich himself at the cost of the landlord." In Ramesh Kumar and Anr. v. Shri Sudarshanlal Dube, 1984 MPRCJ Note 41, considering the dictum laid down in Gajanan Dattatraya's case (supra) a Single Bench of this Court held that the ratio of the decision is not that the sub-lease should subsist on the date of the notice, but the ratio is that the tenant is disentitled to the protection afforded to him under M.P. Accommodation Control Act, if he at any time during the pendency of the lease sublets the suit accommodation or a part thereof. In view of this fact, the Courts below ought to have decreed the suit under Section 12(1)(b) of the Act. In Deena (dead) through L.Rs. v. Bharat Singh (dead) through L.Rs., (2002) 6 Supreme Court Cases 336, the Apex Court held that concurrent findings of Courts below in Second Appeal under Section 100, CPC can not be reversed on basis of general observations. This Court must give reasons for taking contrary view and must also discuss the materials based on which the Lower Courts came to their conclusions. With reference to this, the evidence on record has been examined. Courts below in fact misread the evidence-law on the point of bonafide need and sub-letting, which resulted into dismissal of plaintiff/appellant's suit seeking eviction under Section 12(1)(b), (f) of the Act. The concurrent findings of fact arrived at by Courts below are, therefore, perverse. As such, the judgment-decree passed by Courts below are liable to be set aside. 6. Consequently, appeal succeeds. Setting aside the judgment-decree passed by Courts below, C.S. No. 138-A/95 seeking eviction of defendant/ respondent under Section 12(1)(b), (f) of the Act stands decreed. However, defendant/respondent is directed to vacate and deliver possession of suit shop to the plaintiff/appellant by 30th of June, 2005. Defendant/respondent shall bear his cost and pay the cost of plaintiff/appellant. Counsel fee as per rule or certificate (whichever is less).

Author: S Pande

Smt. Shanti Devi (Dead) Through ... vs Dwarka Das on 25 January, 2005

Madhya Pradesh High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.19107 of 2011 1. Laliya Devi @ Liliya Devi @ Duliya Devi, W/o Nand Kishore Sah @ Nand Lal Sah. 2. Rekha Devi, W/o Subodh Sah. Both are R/o village-Pariharpur, P.S.-Bihariganj, District- Madhepura. ........Petitioners. Versus THE STATE OF BIHAR ----------- PN (S.N. Hussain,J.) For the petitioners : Mr. Dinesh Prasad Verma, Adv. For the State : Mr. Ram Priya Sharan Singh, A.P.P. ----------- 2 16.06.2011 Heard learned counsel for the petitioners and learned counsel for the State. Petitioners are an accused for offences punishable under sections 147, 148, 447, 341, 323, 379 of the Indian Penal Code. Learned counsel for the petitioners submits that there is no allegation against the petitioners except that they were also members of the mob. Specific overt act is alleged against other accused persons. Learned counsel for the petitioners further submits that petitioners are ladies having no criminal antecedents. Considering the aforesaid facts and circumstances, this petition for anticipatory bail is allowed. In the event of arrest or surrender within fifteen days from the date of receipt/ production of a copy of this 2 order in the court below, the petitioners, namely, (1) Laliya Devi @ Liliya Devi @ Duliya Devi and (2) Rekha Devi are directed to be enlarged on bail on executing bail bond of Rs.10,000/-(Ten Thousand) each with two sureties of the like amount each to the satisfaction of learned Chief Judicial Magistrate, Madhepura in connection with Bihariganj P.S. Case No.157/2010 (G.R. No.1791/2010), subject to conditions as laid down under section 438(2) of the Code of Criminal Procedure.

Laliya Devi @ Liliya Devi @ Duliya ... vs The State Of Bihar on 16 June, 2011

Patna High Court - Orders

JUDGMENT Vipin Sanghi, J. 1. This writ petition, under Article 226 of the Constitution of India had earlier been disposed off by this Court on 19th of January 2001, whereby this Court had allowed the writ petition by directing that for the purpose of calculating his pensionary and other settlement dues, the last drawn pay of the petitioner be taken as Rs 2450, which was the pay he was actually drawing while on deputation with CRIS (Centre for Railways Information System), and wherefrom he took voluntary retirement from the Railways on 30.11.1993 and got permanently absorbed in CRIS on 1.12.1993. The Court had further observed that the relief was being granted in the facts and circumstances of the present case and that it would not constitute a precedent. The respondent, Union of India challenged the aforesaid decision before the Supreme Court of India. Civil Appeal No. 7201 of 2002 preferred by the Union of India was allowed by the Supreme Court by the following order: The appellant is before us in appeal against the judgment and order dated 19th July, 2001 passed by the division Bench of the Delhi High Court in CWP No. 2057 of 1999. The question which arose for consideration before the High Court was as to whether the respondent, on his submission of application for voluntary retirement was entitled to retirement benefits on the basis of his last pay drawn at Rs. 2450/- on 30.11.93 or not. The contention of the appellant was that the retirement benefits of the respondent herein should have been reckoned on the basis of the last pay which he would have drawn had he remained in his parent cadre. The contention of the appellant herein found favor with the Tribunal. The High Court in the writ petition filed by the respondent herein, without going into the merits of the matter granted relief to him only on the premise that the same should not be treated to be a precedent. The High Court has not assigned any reason in support of its decision. The contention of the appellant which had found favor with the Tribunal had not been met in the High Court. We are of the opinion that the impugned judgment cannot be sustained. It is set aside accordingly. This appeal is allowed and the matter is remitted to the High Court for consideration of the matter afresh. We request the High Court to lean out and dispose of the matter as expeditiously as possible, preferable within a period of two months from the communication of this order. No order as to costs. 2. In view of the aforesaid the matter stands remitted back to this Court for reconsideration afresh. 3. While serving as Enquiry and Reservation Clerk [E&RC/Delhi (R)] in the pay scale of Rs. 425-640 the petitioner was transferred in the same capacity and grade to the office of chief projects manager(CPM)/OIS in connection with the computerization of seat/berths reservation vide notice dated 10th of October 1985. Vide order dated 28th of November 1985 the petitioner, who was working as senior console operator in the grade Rs 455 -- 700 was promoted to officiate as senior console operator in the grade Rs. 550 -- 750. This order was issued by the office of CPM/OIS, Northern Railway. Vide notice dated 12th of December 1985 the CPM /OIS, Northern Railway fixed the pay of the petitioner- senior console operator at Rs. 550 with effect from the 28th November 1985 in the grade of Rs. 550 -- 750. The petitioner was promoted from the grade of Rs. 550 -- 750 to the grade of Rs. 650 -- 960 while working as senior console operator with effect from the 1 September 1986 by the order dated the 1 September 1986, also issued by the CPM/PRS, Northern Railway. 4. On 13th February 1989, the Centre for Railways information system (CRIS) requested The Systems Manager, Chief Commercial Officer (Computers Reservation) to depute console operators to CRIS since the development and simulation centre of CRIS was being inaugurated on 29th of March 1989. The terms on which the deputation was offered were also communicated by CRIS. On 16th February 1989, while retaining his lien on his substantive post, the petitioner came over to CRIS on deputation. The petitioner continued to work on deputation in CRIS. Eventually, he sought voluntary retirement from Northern Railway with effect from the 30th November 1993 and permanent absorption with CRIS. This request of the petitioner was earlier declined, but finally acceded to by Northern Railway vide a communication dated 20th of January 1995. The respondent Northern Railway communicated the decision of the Railway Board contained in their letter dated 22 September 1994 whereby the Board accorded approval to the extension of the deputation term of the petitioner for the period up to 30th November 1993. It was further stated that the competent authority has accepted the request of the petitioner, now working with CRIS on deputation, for acceptance of his resignation from railway service with effect from 30th November 1993. Consequent upon the aforesaid development CRIS issued an office order on 17 April 1995 permanently absorbing the petitioner in CRIS with effect from 1 December 1993 in the grade of Rs. 2000-3500 as a console operator. 5. The petitioner requested the respondent for settlement of his pensionary and other dues on the basis of his last drawn pay of Rs. 2450 in the scale of Rs. 2000 - 3200 while on deputation. The respondent however took the view that the pensionary and other dues of the petitioner were liable to be calculated on the basis of the last pay that the petitioner would have been entitled to draw, had he continued to serve in his parent Carder in Northern Railways in the scale of Rs. 1600 -- 2660 at the time of his seeking voluntary retirement, that is, on 30th November 1993. Accordingly to the respondent, the petitioner would have been entitled to draw Rs. 1950/- per month in the scale of Rs. 1600-2660, and on that basis the petitioners pensionary and other settlement dues ought to have been calculated. 6. Being dissatisfied by the rejection of his request for settlement of his pensionary dues on the basis of his last drawn pay of Rs. 2450, the petitioner preferred Original Application bearing No. 2109 of 1997 before the Central Administrative Tribunal, Principal Bench, New Delhi (the Tribunal). By the impugned order dated 24th of December 1998 the tribunal dismissed the original application filed by the petitioner. It is this order of the Tribunal which has been impugned before us in the present writ petition by the petitioner. 7. The Tribunal relied on the definition of "pay" as contained in Rule 1303(1) IREC Vol II, which is, inter alia, defined as "pay other than Special Pay or pay granted in view of his personal qualifications, which has been sanctioned for a post held by him substantively or in an officiating capacity or to which he is entitled by reason of his position in a cadre." The Tribunal emphasized the last part of this definition i.e. "by reason of his position in a cadre", and held that since the petitioner substantively was an Enquiry-cum-Reservation Supervisor in the scale of Rs. 1600-2660 in his parent Cadre, where he continued to hold his lien, and his basic pay as Enquiry-cum-Reservation Supervisor in the grade of Rs. 1600-2660 had been fixed at Rs. 1950/- p.m., therefore, he was entitled to calculation and settlement of his pensionary and other dues on the basis of the notional last drawn pay of Rs. 1950/- and not Rs. 2450/-. The Tribunal also distinguished the case of Ajmer Singh v. UOI & Railway Board, in O.A. No. 1868/1995 decided by it on 14.11.1996, and relied upon by the petitioner, on the ground that in Ajmer Singh (supra) he had received promotion and had thereafter retired on superannuation from the post to which he had been transferred on ad hoc basis, while in the present case, the petitioner, who was on deputation with CRIS went on to be absorbed in CRIS, after seeking voluntary retirement from the Railways. On the same basis, the case of Shri R.L. Arora, ex-officiating AEN/MTP, New Delhi, also relied upon by the petitioner was also distinguished. 8. Para 1303 of the Railway Establishment Code defines 'Pay' and "Average Pay" as: Pay- Pay means the amount drawn monthly by a Government servant as: (i)The pay other than special pay or pay granted in view of his personal qualifications, which has been sanctioned for a post held by him substantively or in an officiating capacity or to which he is entitled by reason of his position in a cadre; and (ii)Overseas pay, special pay and personal pay; and (iii)Any other emoluments which he may be specifically as pay by the president. Average Pay - Average pay means the average monthly pay earned during the 12 complete months immediately proceeding the month in which the event occurs which necessitates the calculation of average pay: Provided that in respect of any period spent on foreign service out of India the pay which the railway servant would have drawn if on duty in India but for foreign service out of India shall be substituted for the pay actually drawn: Provided further that in the case of railway servant entitled to running allowance, average pay for the purpose of leave salary shall include a fixed component representing pay element in the running allowances as notified by government through administrative instructions from time to time. 9. Rule 49 of the Railway Services (Pension) Rules, 1993 defines Emoluments as "(a) emolument:, of for the purpose of calculating various retirement and death benefits, means the basic pay as defined in Clause (i) of Rule 1303 of the code which a railway servant was receiving immediately before his retirement or on the date of his death: Provided that the stagnation increment shall be treated as emoluments for calculation of retirement benefits; 10. Notes 2, 6 and 8 to Rule 49 is also relevant and read as follows: Note 2: where a railway servant immediately before his retirement or death while in service had proceeded on leave for which leave salary is payable after having held a higher appointment, whether in an officiating or temporary capacity, the benefit of emoluments drawn in such higher appointment shall be given only if it is certified that the railway servant would continued to hold the higher appointment but for his proceedings on leave. Note 6: Pay drawn by a railway servant on foreign service shall not be treated as emoluments, but the pay which he would have drawn under the railways, had he not been on foreign service shall alone be treated as emoluments. Note 8: Where a railway servant has been transferred to an autonomous body consequent on the conversion of Department of railways into such a body and the railway servant so transferred opts to retain the pensionary benefits under the rules of the railways, the emoluments drawn under the autonomous body shall be treated as emoluments for the purpose of this rule. 11. On a co-joint reading of para 1303 of the Railway Establishment Code (for short, the `Code') and Rule 49 of the Railway Services (Pension) Rules, 1993, (for short 'Pension Rules'), it is clear that what is relevant is the amount of pay actually drawn by a Government Railway servant. The opening words of Pension Rule 1303 clearly sates that "pay means the amount drawn monthly by a Government servant."That amount can, obviously,be only be one figure.Various alternatives are provided for in the Pension Rules and the Code for the determination of the "pay" that has to be taken into account for arriving at the last drawn pay of a railway servant, which in turn is the basis for fixation of his pensionary and other terminal dues. These alternatives are provided to cover various situations that may arise, in which the employee may superannuate or seek voluntary retirement. Therefore, "pay" could mean, inter alia, (i) Pay which has been sanctioned for the post held by the railway servant substantively; (2) Pay which has been sanctioned for the post held by the railway servant in an officiating capacity: (3) Pay to which the railway servant is entitled by reason of his position in cadre. The pay that is to be taken into consideration for fixation of the pensionary and other settlement dues means the basic pay as defined in Clause (i) of Rule 1303 of the Code, which the railway servant "was receiving immediately before his retirement or on the date of his death"(see Rule 49 of the Pension Rules). It is clear, inter alia, from the definition of Average Pay in the Code and notes 2, 6 & 8 to Rule 49 of the Pension Rules, that merely because the pay which has been sanctioned for the post held by the railway servant substantively is lower than the pay which he has in fact been drawing while serving in an officiating capacity, for purposes of fixation of his pensionary and other dues, it is not the lower of the two amounts which would be taken into account. The spirit behind the aforesaid rules is clearly to fix the pensionary and other settlement dues of the railway servant on the basis of the actual pay drawn by him. The only exception to this general rule appears to be where the railway servant is sent on "foreign service". In that case, the emoluments drawn by him while on "foreign service", shall not be treated as emoluments for the purpose of fixation of his pensionary and other dues (See the 1st Proviso to the Definition of "Average Pay" in the Code and Note 6 to Rule 49) of the Pension Rules. Therefore, the issue that needs determination is whether the service rendered by the petitioner on deputation with CRIS could be said to be "foreign service" for the purpose of the aforesaid Code and the Pension Rules. If it amounts to a "foreign service", the stand of the respondent would stand vindicated. However, in case the service rendered on deputation with CRIS is not considered to be a "foreign service", the petitioner would be entitled to the calculation of his pensionary and other settlement dues on the basis of the last pay drawn while serving with CRIS on deputation at Rs. 2450/- per month. 12. From Note 8 to Rule 49 of the Pension Rules, it appears that a railway servant when transferred/deputed to a body which has been created as a consequence of the conversion of a department of railways, the emoluments drawn by the railway servant under the autonomous body are treated as emoluments for the purpose of Rule 49. This clearly shows that the "foreign service" talked about in Note 6 of Rule 49 does not envisage the transfer or deputation to an autonomous body which is formed by the conversion of a department of the railways. "Foreign Service", it appears would mean a service outside the railways or any of its extended arms. CRIS, undoubtedly is an organisation created from within the railways. In fact, the correspondence placed on record and referred to hereinabove shows that the mother organization of CRIS is none other than the Ministry of Railways. The letter head used by CRIS also described it as "An organisation of the Ministry of Railways, Government of India". From the first priviso to the definition of "Average Pay" also, it appears that "foreign service" is considered to be the service rendered out of India. Looked at from either point of view, the service rendered by the petitioner with CRIS on deputation cannot be said to be "foreign service". 13. We may also refer to the communication dated 3.1.1985 issued by the Chief Project Manager/OIS, addressed to the Senior Electronic Data Processing Manager of the Indian Railways inviting experienced staff for repairing the computers as well as for maintaining the software to achieve the project of computerization of passenger seats/berth reservations in Delhi area. The communication stated that Console Operators, Senior Console Operators, Assistant Programmers and Assistant Operation Managers would be accommodated. Reference may also be made to the communication dated 19.6.1985 issued by Chief Project Manage(OIS) to the Area Superintendent, Delhi, Northern Railways requesting the later that the petitioner and one, Uday Shankar Ghosh may be asked to work in the office of the Chief Project Manager(OIS) to give experience and knowledge of working on the application software of the reservation project. The Chief Project Manager(OIS) requested the transfer of the petitioner on administrative grounds from Delhi Main to New Delhi Reservation Office. This communication further stated that "in due course of time we will be able to find some suitable posts for these persons to absorb them in this organization". 14. From the aforesaid, it is seen that CRIS started of as a project of the Railways for computerization of passenger seats/berth reservations and eventually the same was carved out as an autonomous organization of the Railways. The transfer of the petitioner to the office of the Chief Project Manager(OIS) was also on administrative grounds. 15. In our view, therefore, the service rendered by the petitioner with CRIS on deputation cannot be considered to be foreign service for the purpose of the pension rules. 16. We are also not impressed by the argument that merely because the petitioner continued to hold a lien in his parent cadre, it disentitled him from seeking the computation of his pensionary and other settlement dues on the basis of the last pay actually drawn by him while on deputation with CRIS, immediately prior to his voluntary retirement from the Railways and absorption with CRIS. As aforesaid, there is no basis to support this submission in the Code or the Pension Rules, which, in fact emphasis the relevance of the last drawn pay, irrespective of it being on a substantive post or on an ad hoc post. 17. We also find force in the submission of the petitioner that the stand of the respondents in this case is contrary to the decision taken by the respondent itself in the case of Sh. R. L. Arora. It appears that Sh. R.L.Arora, officiated in the construction wing of the MTP where he was drawing a higher pay than the pay to which he was entitled in his substantive post. The Railway Board vide communication dated 1.8.1986 and 18.9.1986 consistently took the view that there is no indication available in the Rules to debar the reckoning of the pay drawn by the employee against a work charged post before retirement for pensionary benefits. The Board also took the view that the pay drawn in an officiating capacity, even on ad hoc basis has to be taken into account for counting retirement benefits. The Board, in its letter dated 18.9.1986, reiterated its decision regarding counting of the last pay drawn by Shri Arora in the construction wing of the MTP, as conveyed in its letter dated 1.8.1986. Similar is the case of the petitioner. He cannot be treated discriminately. 18. The distinction sought to be drawn by the Tribunal between the petitioner's case and that of Ajmer Singh, decided by the Tribunal in OA No. 1868/95 on 14.11.1996 also appears to be misplaced. In Ajmer Singh(supra), the Tribunal observed as follows: The respondents have not been able to show any provision which lays down that the pension will be determined with the reference to pay in substantive post and not the actual pay drawn by the retiring official. The pension is determined on the basis of "emoluments" which means basic pay which a government servant was receiving immediately before his retirement or on the date of his death. Admittedly, the applicant was receiving the pay of Rs. 2525/- as Superintendent at the time of his retirement. Rule 2000(21) R-II also defines the pay as the amount which the employee draws monthly in substantive or officiating capacity. It is an admitted fact that the applicant was working as a Superintendent and his pay was therefore fixed at Rs. 2525/-. Therefore, it was this pay which had to be taken into account for fixing his pension and other terminal benefits. 19. The reasoning adopted by the Tribunal squarely applies in the facts of the present case, as disclosed hereinabove. Merely because the petitioner sought voluntary retirement from the Railways and immediately got absorbed with CRIS where he was earlier serving on deputation, does not create any meaningful distinction between the case of the petitioner and that decided by the Tribunal in Ajmer Singh(supra). 20. For the reasons aforesaid, we are of the view that the decision of the Tribunal is laconic and liable to be set aside and the petitioner is entitled to the relief as prayed for by him in the Original Application. Accordingly, we set aside and quash the decision of the Tribunal in OA No. 2109/97 dated 24.12.1998 and direct the respondent to recalculate the retirement and other settlement dues of the petitioner on the basis of his basic salary of Rs. 2,450/- in the scale of Rs. 2000-3200 on the date of his voluntary retirement i.e.30.11.1993. The computation of the arrears of pension and other settlement dues to which the petitioner is entitled be made within three months and the arrears be paid to him within one month thereafter. In case, the arrears are not calculated and paid as aforesaid the petitioner shall be entitled to interest at the rate of 6% per annum from the date of filing of the Original Application before the Tribunal till realization. The respondents are further directed to start paying the petitioner his pension dues in future on the basis of his last drawn basic pay of Rs. 2,450/- and to pay to him his pension and other dues calculated on that basis henceforth. The petitioner shall be entitled to costs quantified at Rs. 10,000/-.

Author: V Sanghi

Shri Darshan Kumar Sahni vs Union Of India (Uoi) on 14 December, 2007

Delhi High Court

Gujarat High Court Case Information System Print SCA/10726/2009 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 10726 of 2009 ========================================================= A N GULIWALA - Petitioner(s) Versus KAMALA LAXMI SHARES & FINANCE & 1 - Respondent(s) ========================================================= Appearance : NOTICE SERVED for Petitioner(s) : 1,PARTY-IN-PERSON for Petitioner(s) : 1, NOTICE SERVED BY DS for Respondent(s) : 1 - 2. ========================================================= CORAM : HON'BLE SMT. JUSTICE ABHILASHA KUMARI Date : 20/01/2010 ORAL ORDER The endorsement on the board indicates that the notice has been served upon the respondents, by direct service. However, none appears today. One opportunity may be given to the respondents to defend the petition. If none appears on the next date of hearing, the Court may proceed with the matter. List on 02.03.2010. (Smt. Abhilasha Kumari, J.) ~gaurav~     Top

Author: Abhilasha Kumari,&Nbsp;

A vs Kamala on 20 January, 2010

Gujarat High Court

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Ajaz Ahmad S/O Mohd. Haneef vs District Judge, Faizabad & Ors. on 17 August, 2010

Allahabad High Court

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JAIPUR (1) S.B. Criminal Appeal No. 49/2008 Shivraj @ Shoraj Versus The State of Rajasthan With (2) S.B. Criminal Appeal No. 1890/2007 Ramphool Versus The State of Rajasthan Date of Judgment: 24.05.2010 Hon'ble Mr. Narendra Kumar Jain,J. Mr. Rinesh Gupta & Mr. Vijayant Nirwan, for the appellant-Shivraj @ Shoraj. Mr. Kamlakar Sharma, for the appellant-Ram Phool. Mr. J.R. Bijarnia, Public Prosecutor, for the State. Heard learned counsel for the parties. 2. Since both the appeals are directed against impugned judgment dated 09.10.2007 passed by Additional Sessions Judge(Fast Track) No. 1, Bundi in Sessions Case No. 15/2007, therefore, they are being disposed of by this common judgment. 3. Appellants Ramphool and Shivraj @ Shoraj both sons of Laxminarain were convicted and sentenced by the learned trial court as under: 4. Learned counsel for the appellants initially argued the case at length on merits, but during the course of arguments, they frankly contended that from the evidence on record, particularly the statements of eye-witnesses, offences under Sections 304 Pt. II, 341, 323 IPC against the appellants are made out, but their sentence of imprisonment is excessive and the same is liable to be reduced. They further contended that Appellant Ramphool has already remained in jail for 4 years and 8 months and Appellant Shivraj @ Shoraj has remained in jail for 3 years 3 months and 27 days. Therefore, sentence of imprisonment awarded by the learned trial court against each appellant be reduced to a period of sentence of imprisonment already undergone by them. 5. Learned Public Prosecutor contended that in view of the fact that the appellants have not challenged their conviction, therefore, their prayer to reduce the sentence of imprisonment to a period of imprisonment already undergone by them may be considered sympathetically. 6. I have considered the submissions of learned counsel for the parties and examined the impugned judgment as well as record of the trial court. 7. Exhibit P-11, a written report was lodged by P.W.6, Dharmendra Singh at Police Station Dehi, Distrit Bundi in respect of incident took place on that day at about 6.30 to 7.00 P.M. wherein he, his father Nand Singh and Ms. Rajesh sustained injuries. Nand Singh was admitted to hospital at Dei and was medically examined at Dei on 23.09.2005 itself, but his medical report of Hospital at Dei has not been placed on record by the prosecution. Later on, he was referred to Government Hospital, Bundi and was medically examined, but his medical report of Bundi is also not on record. Subsequently, in last, he was referred to Government Hospital, Kota, where he succumbed to his injuries and his Post Mortem Report Exhibit P-12 is available on record. Although there is an allegation that accused persons inflicted injuries by Kulhadi on the person of deceased Nand Singh, but from the medical report, it is not clear whether injuries sustained by deceased were inflicted by sharp edged weapon or by blunt object. Therefore, learned trial court acquitted accused from the charge under Section 302 IPC and convicted the accused-appellants under Section 304 Pt. II, IPC. 8. I have examined the statements of injured eye-witnesses i.e. P.W.5 Miss Rajesh D/o Nand Singh; P.W.6 Dharmendra Singh S/o Nand Singh; and other eye witnesses, namely P.W.1 Gopal Singh S/o. Dhan Singh, P.W.8 Bablu @ Ranveer S/o. Parvat Singh; P.W.9 Brij Bai W/o. Gopal Singh; and P.W.11 Smt. Ucchav Kanwar W/o. Nand Singh deceased and I find that learned counsel for the appellants rightly did not press the appeal of both the appellants on merits. In my view learned trial court was fully justified in convicting the accused-appellants for the offences under Section 304 Pt. II, 341 and 323 IPC. 9. So far as submission of learned counsel for the appellant about reduction of sentence of imprisonment awarded by the trial court is concerned, there is no dispute between both the parties that appellant Ramphool has remained in jail for 4 years and 8 months and appellant Shivraj @ Shoraj has remained in jail for 3 years 3 months and 27 days. 10. It is relevant to mentioned that in the same incident, the accused persons also sustained number of injuries and injury report of accused Ramphool is available on record as Exhibit D-7 and accused Shivraj @ Shoraj as Exhibit D-8. It is a case of single injury, which proved to be fatal on the person of the deceased and from the medical evidence it is not known whether the said injury was inflicted by blunt object or sharp edged weapon. 11. The Hon'ble Apex Court in Pooran Singh Vs. State of U.P. reported in AIR 1981 SC 1638 reduced the sentence of imprisonment awarded under Section 304 Pt. II, IPC to a period of 18 months already undergone by the appellant therein. 12. Similarly, in Kuldeep Singh Vs. State of Haryana, reported in 1996 Cri.L.J. 1884(SC), the Hon'ble Apex Court reduced the sentence of imprisonment to a period of 2 years already undergone by the accused for offence under Section 304 Pt. II, IPC. 13. Hon'ble Supreme Court in State of Punjab Vs. Mohinder Singh, reported in 1993 Cri.L.J. 3903(SC) reduced the sentence of rigorous imprisonment of 5 years under section 304 Pt. II, IPC to a period of sentence of imprisonment of 2 months alerady undergone by the accused. 14. Recently, the Hon'ble Apex Court in Md. Monir Alam Vs. State of Bihar, reported in AIR 2010 SC 698 granted the benefit of Section 4 of Probation of Offenders Act, 1958 to the accused for offence under Section 304 Pt. II, and 323 IPC. 15. Offence under Section 304 Pt. II, IPC is punishable with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine or with both. NO minimum sentence has been prescribed. In these circumstances, I think it fit and proper that ends of justice would meet, in case the sentence of imprisonment awarded by learned trial court is reduced to a period of imprisonment already undergone by the appellants i.e. in the case of Appellant Ramphool to a period 4 years and 8 months and in the case of Appellant Shivraj @ Shoraj to a period of 3 years 3 months and 27 days. 16. Consequently, both the appeals of appellants are partly allowed. Their conviction and sentence under Sections 341 and 323 IPC is maintained. However, while upholding their conviction under Section 304 Pt. II, IPC, their sentence of imprisonment is reduced to a period of imprisonment already undergone by them. Appellants are in judicial custody, therefore, they are directed to be released forthwith, in case their custody is not required in any other case. (Narendra Kumar Jain),J. Manoj

Shivraj @ Shoraj vs State on 24 May, 2010

Rajasthan High Court

ORDER Coutts-Trotter, C. J. 1. These are summonses to transfer ejectment applications pending in the Court of Small Causes to the file of the City Civil Court in order that they should be tried along with O. S. Nos. 16 and 17 of 1926 respectively and to empower the City Civil Judge to try the cases as Small Cause suits. That matter was put up before me for argument, because several such applications have been put before me as Chief Justice and I was told that I alone had the power to order such transfers. I have now ascertained that this view rested on the idea that the matter was governed by Section 5 (2) of the Madras City Civil Court Act 7 of 1892. That section enacts that a Judge of the City Court shall be, by virtue of his office, a Judge of the Small Cause Court with respect to cases cognizable by that Court and that every such Judge'shall be liable to perform any duties of a Judge of the Small Cause Court which the Chief Justice of the High Court may require him to perform. In my opinion the object of that section was to enable the Chief Justice to prescribe generally the duties to be performed by a Judge of the City Civil Court when transferred to the Small Cause Court for any substantial period and not to enable the Chief Justice to interfere with regard to the transfer of particular cases and create a City Civil Court Judge a Small Cause Court Judge ad hoc with reference to an individual case. But two of my predecessors, Sir Arnold White and Sir John Wallis, did consent in particular cases to apply Section 5 (2) for the purpose of ordering matters of this kind to be tried together. I decline to follow their example for the reason that I think that if the statutes are looked at it is quite clear they contemplate the existence of concurrent remedies under the two Acts and that ample provision is made to avoid any apparent inconvenience arising from the concurrent jurisdiction. 2. The Small Cause Courts Act by Ch. 7 provided a summary remedy for an owner of property to eject persons in possession of that property which was prima facie illegal and Ss. 46, 47 and 49 of that Act provide safeguards against such a summary order precluding the determination of any question of title which may be raised in Court of appropriate jurisdiction. The Small Cause Courts Act was passed in 1882 and at that time the only tribunal which could try questions of title to property liable to be the subject of a summary order under the Presidency Small Cause Courts Act was the High Court and Sections 47 and 49 of the Act are framed in view of that position. That Act dates from 1882 and in 1892 the City Civil Court Act was passed which gives jurisdiction to the City Civil Court to try questions of title to property up to a certain value which would include the property in issue in this suit. 3. I am quite clear that the Small Cause Courts Act deliberately provided for summary remedies for possession without prejudice to the trial of questions of title in a higher tribunal. The difficulty has entirely arisen owing to the fact that ten years later the City Civil Court Act provided a new tribunal whose jurisdiction as to title was up to a certain amount concurrent with that of the High Court and it did not and could not amend the Presidency Small Cause Courts Act to conform to the altered state of affairs, because the Presidency Small Cause Courts Act was an imperial statute and the City Civil Court Act was local. It was suggested that the Madras City Civil Court Act and the Presidency Small Cause Courts Amendment Act 5 of 1916 solved the problem by virtue of Section 2 which enacts that all suits cognizable by the Court of Small Causes of Madras...... may at the election of the plaintiff be instituted in the Madras City Civil Court which shall have jurisdiction to try and dispose of such suit according to the provisions of the Madras City Court Act, 1892, and it was argued that that section enabled me to use the power conferred on me by Section 24 of the Civil P. C. In my opinion that solution is not open because it is clear to my mind that proceedings under Ch. 7 of the Small Cause Courts Act are not suits within the meaning of Act 5 of 1916. Indeed language is carefully chosen to indicate that they are not suits but summary orders which can be enforced without prejudice to the result of suits properly so described. From that it follows that though under Section 24 of the Civil P. C., I have jurisdiction to transfer matters other than suits to a subordinate Court, e. g., the City Civil Court, I can only transfer them to a Court which has jurisdiction to try them. In my opinion the jurisdiction to try a summary application of this nature is one exclusively vested in the Small Cause Court and that if I transferred such an application to the City Civil Court I should be transferring it to a Court which has no jurisdiction to try it. What is really required is that the Small Cause Courts Act should be amended by adding in each section where the expression "a suit in the High Court" occurs, the words "or in the City Civil Court" to meet the altered state of things created by the City Civil Court Act of 1892. That amendment can only come from the Imperial Legislature and in my opinion it is most imperative that it should come into force at the earliest possible moment. Otherwise either the High Court will be clogged with trivial suits relating to the title of property of small value because of the reservation of all questions of title by the Act of 1882 to the High Court or else the City Civil Court will be beset with arguments alleging res judicata on the ground that res judicata is guarded against by the Act of 1882 only in the case of proceedings in the High Court. I must leave the summary proceedings in the Presidency Small Cause Court to take their course. If the parties will undertake not to raise the plea of res judicata on the ground that the only exemption of such a plea is in the case of suits brought in the High Court the suit in the City Civil Court can also take its ordinary course. If they will not do so, I see no option but to transfer the suits raising the question of title to be dealt with by the High Court. Mr. Venkataramana Rao and Mr. Narasimha Aiyar desire the question of title to be tried in the City Civil Court and agree not to raise the plea in that Court that the result of the proceeding in the Small Cause Court (whatever it may be) shall be treated as res judicata and binding on the City Civil Court, on the question of title.

Author: C Coutts-Trotter

J. Manicka Chettiar And Anr. vs Kuppuswami Naicker And Ors. on 30 March, 1926

Madras High Court

Court No. - 46 Case :- CRIMINAL MISC. WRIT PETITION No. - 22918 of 2008 Petitioner :- Dileep Kumar & Others Respondent :- State Of U.P. & Others Petitioner Counsel :- Manoj Kumar Dwivedi Respondent Counsel :- Govt. Advocate Hon'ble Amar Saran,J. Hon'ble Yogesh Chandra Gupta,J. Case called out in the revised list. None appears for the petitioners. Learned AGA states that in this case after investigation, the charge sheet has been submitted. In this view of the matter, the writ petition has become infructuous and it is accordingly dismissed. Interim order, if any, stands vacated. Order Date :- 4.8.2010 sfa/

Dileep Kumar & Others vs State Of U.P. & Others on 4 August, 2010

Allahabad High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM OP No. 7008 of 2003(H) 1. ACHUTHANANDAN T.B.(MINOR) ... Petitioner Vs 1. THE STATE OF KERALA, REP.BY ITS ... Respondent 2. THE COMMISSIONER FOR ENTRANCE 3. THE TAHSILDAR, TALUK OFFICE, CHITTUR, 4. THE VILLAGE OFFICER, VILLAGE OFFICE, For Petitioner :SMT.V.P.SEEMANDINI For Respondent :GOVERNMENT PLEADER The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN Dated :02/11/2007 O R D E R THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------------- W.P(C).No.7008 OF 2003 ------------------------------------------- Dated this the 2nd day of November, 2007 JUDGMENT Petitioner is the brother of T.S.Reghunath, whose writ petition W.P(C).No.30798/03 was disposed of by me today by a separate judgment. They are the children of Sri.A.Srinivasan. As noticed by me in W.P(C).No.30798/03, the father of the petitioner, viz., Srinivasan, is the beneficiary of the judgment dated 27.2.2003 in O.P.No.8611/94, which was Ext.P4 in W.P(C).No.30798/03. By virtue of the declarations, directions and orders contained in that judgment, Srinivasan was entitled to be governed by the certificates already issued to him, showing that he belongs to Thandan community and the competent authority has the liberty to take appropriate action in terms of Act 11 of 1996 for cancellation of that certificate, in accordance with law. The necessary consequence of the judgment in O.P.No.8611/94, as held by me in W.P(C).No.30798/03, is that Srinivasan and his children still continue to be treated as belonging to Thandan community, until the competent authority  OP.7008/03 Page numbers concludes against Srinivasan by setting aside the caste certificate issued to him and such an exercise may be done only in accordance with the provisions of Act 11 of 1996. Short of that, if the petitioner continue to hold a certificate that he belongs to Thandan community, there is no reason why the petitioner in this case, who is admittedly his son, cannot also enjoy that status as to caste, which enjoyment would be co terminus with that of the father. 2. Learned special Government Pleader appearing for the official respondents states that proceedings have been initiated under Act 11 of 1996 in relation to the caste status of Srinivasan, while the learned counsel for the petitioner refused that by stating that Srinivasan has not received any notice of such proceedings. 3. In view of the fact that the children of Srinivasan are entitled to enjoy a declaration as to their caste status in terms of  OP.7008/03 Page numbers the reigns in favour of their father Srinivasan, it has to be held that, as of now, the petitioner is entitled to be treated as belonging to Thandan community without prejudice to the right of the competent authority to take appropriate action in accordance with the provisions of Act 11 of 1996. 4. In the result, this writ petition is allowed quashing Ext.P10 and directing that the petitioner will be issued caste certificate showing him as belonging to Thandan community, however, that such certificate will be subject to finalisation of any proceedings under Act 11 of 1996 in relation to the caste status of the petitioner's father Sri.A.Srinivasan. The writ petition is allowed to the aforesaid extent. 5. After pronouncing this judgment, learned special Government Pleader pointed out that this matter may be listed to be spoken to since he had accidentally omitted to bring to the  OP.7008/03 Page numbers notice of this Court Ordinance No.55/07 and in particular, clause 6 thereof, inserting Section 6 A into Act 11 of 1996. Post on 6.11.2007. 6.11.2007. This matter is taken up today, following the listing on the previous day, to be spoken to, at the request of the learned special Government Pleader. He points out that by virtue of clause 4 of Ordinance No.55/07, Section 6 A has been inserted into the principal Act, whereby, the rejection of an application for caste certificate nullifies any certificate already given and the rejection of the application by the screening committee would also to be treated as a decision resulting in the cancellation of the certificate. That provision is deemed to have come into force only on 1.2.2007. Not only that, the judgment in this case is essentially depending upon the decision rendered by this Court  OP.7008/03 Page numbers on 27.2.2003 in the case of Sri.T.A.Srinivasan, father of the petitioner. Though I do not presently intend to go into the question as to whether Section 6 A, as introduced into the Act by Ordinance No.55/07, as a piece of State Legislation, has the vitality to override writs, directions, orders, declarations etc, issued in writ jurisdiction in exercise of authority under Article 226 of the Constitution of India, on facts, it is clear that unless Srinivasan's caste status is finally decided, it would be wholly undesirable to conclude on the caste status of his children. For this reason, the submission on behalf of the respondents is repelled and the judgment dated 2.11.2007 is sustained. It is clarified that all other issues are left open. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge kkb. OP.7008/03 Page numbers ======================= THOTTATHIL B. RADHAKRISHNAN, J O.P.NO.7008 OF 2003 JUDGMENT 2ND NOVEMBER, 2007. ======================= 

Achuthanandan T.B.(Minor) vs The State Of Kerala on 2 November, 2007

Kerala High Court

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Author: D.V.Shylendra Kumar Kumar

The Commissioner Of Income Tax vs Shri J Alexander on 10 July, 2009

Karnataka High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM Crl.Rev.Pet.No. 2191 of 2008() 1. SHAMEER, AGED 33, S/O.RAHMANKUTTY, ... Petitioner 2. SIYAD, AGED 22, S/O.SAINUDEEN, 3. SUDHEER, AGED 22, S/O. SAINUDEEN, Vs 1. STATE OF KERALA, REP. BY PUBLIC ... Respondent 2. STATION HOUSE OFFICER, N. PARAVUR For Petitioner :SRI.MANSOOR.B.H. For Respondent :PUBLIC PROSECUTOR The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR Dated :22/09/2008 O R D E R M. SASIDHARAN NAMBIAR, J. ------------------------------------------ CRL.R.P. NO. 2191 OF 2008 ------------------------------------------ Dated this the 22nd day of September, 2008 O R D E R The short point for consideration is whether an inquiry commenced under section 107 of Code of Criminal Procedure in the absence of a special reason to be recorded by the Executive Magistrate could be continued beyond the period of six months as provided under sub section 6 of Section 116 of the Code of Criminal Procedure. 2. The records of Executive (Sub Divisional) Magistrate, Fort Kochi in M.C.27 of 2006 show that based on the report submitted by the Sub Inspector of Police, North Parur police station dated 1.2.2006, Sub Divisional Magistrate passed an order on 3.4.2006 exercising the powers provided under section 107 and 111 of Code of Criminal Procedure, directing petitioners and others to appear before him Court on 23.5.2006, to show cause why they should not be required to enter into a bond for Rs.10,000/- each and also to furnish security by a bond with two sureties for the like sum to keep peace for a term of one year. Petitioners appeared before Sub Divisional Magistrate on 11.7.2006. As per order dated 28.2.2007, Sub Divisional  CRRP2191/08 2 Magistrate passed a final order as provided under section 116 directing petitioners to execute a bond with two sureties for a sum of Rs.10,000/- each for a term of one year, within two weeks from that day. This petition is filed under section 397 and 401 of Code of Criminal Procedure challenging the order. 3. Learned counsel appearing for petitioners and the learned public prosecutor were heard. 4. Learned counsel relying on the Division Bench decision of this Court in Muhammedkutty @ Thomas v. State of Kerala (2007 (2) KLD 99) argued that as provided under sub section 6 of section 116, on the day of expiry of six months from the date on which the accused appeared before Sub Divisional Magistrate, the proceedings stood terminated as no special reasons were recorded by the Magistrate and therefore the impugned order is illegal and is to be set aside. 5. Section 107 of the Code of Criminal Procedure enables a Magistrate if he is of the opinion that there is sufficient ground for proceeding on the basis of the information received, that any person is likely to commit a breach of peace or disturb public tranquility or to do any wrongful act that may probably occasion a breach of peace or disturb public  CRRP2191/08 3 tranquility, to require such person to show cause why he should not be ordered to execute a bond with or without sureties for keeping peace for such period not exceeding one year. Section 111 enables a Magistrate to issue an order in writing setting forth the substance of the information received, the amount of the bond to be executed and the term for which it is to be in force, and the number, character and class of sureties, if any, required. Under section 112, if the person in respect of whom such an order is made is present in Court, it shall be read over to him, and if he so desires, substance thereof shall be explained to him. If such person is not present in Court, Magistrate shall issue a summons as provided under the Section requiring him to appear. Section 114 provides that every summons or warrant so issued shall be accompanied by a copy of the order made under section 111. Section 116 provides the mode of inquiry to be conducted by the Magistrate. Under sub section (1), when an order under section 111 has been read or explained under section 112, to a person present in Court, or when he appears or is produced in answer to the summons or warrant issued as provided under section 113, the Magistrate shall proceed to inquire into the truth of the information upon which the action has been taken, and shall take such further evidence as may  CRRP2191/08 4 appear. Sub section (2) to section 116 provides that recording of evidence is to be done as in a summons case. Sub section (6) mandates that the inquiry under the section shall be completed within a period of six months from the date of commencement, and if such inquiry is not so completed, the proceedings under the Chapter shall stand terminated on the expiry of the said period, unless for special reasons to be recorded in writing, Magistrate otherwise directs. Therefore, if the Magistrate for special reasons to be recorded in writing directs otherwise, if an inquiry is not completed within six months from the date of its commencement the inquiry shall stand terminated on the expiry of six months period. 6. The impugned order does not show that Sub Divisional Magistrate has recorded any special reason to extend the period beyond the six months. The records called for also does not show that any such special reason was recorded. As held by the Division Bench of this Court in Muhammedkutty's case (supra), inquiry under section 116 commences as soon as the accused appears before the Court and the period of six months is to be computed from that date. The order passed under section 111 on 3.4.2006 directs the accused to appear on 23.5.2006. According to petitioners they appeared before the  CRRP2191/08 5 Magistrate on 11.7.2006. Records also establish the fact. If so, as provided under sub section 6 of Section 116, inquiry should have been completed before the expiry of six months from 11.7.2006. As the inquiry was not completed on or before 11.1.2007, as provided under sub section 6, inquiry stood terminated as no special reasons are recorded. It is more so when by Sub Divisional Magistrate has not extended the period of inquiry as provided under sub section 6 of section 116 recording reasons for doing so. Moreover, the very order passed under section 111 is to execute a bond for a period of one year, i.e. from 3.4.2006. Even that one year period expired much prior to the date of final order. In such circumstances the impugned order is set aside and it is declared that inquiry stood terminated on the expiry of six months from 11.7.2006, as provided under sub section 6 of section 116 of Code of Criminal Procedure. Revision petition is disposed accordingly. M. SASIDHARAN NAMBIAR, JUDGE Okb/-

Shameer vs State Of Kerala on 22 September, 2008

Kerala High Court

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH COCP No.1153 of 2009(O&M) Date of decision: 2.7.2009 Kishori Lal ......Petitioner Versus D.S. Jaspal, IAS ......RespondentJuly 2, 2009 (RAKESH KUMAR GARG) ps JUDGE CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Vikas Chatrath, Advocate for the petitioner. Rakesh Kumar Garg, J.(Oral) CM No.14972-CII of 2009 CM is allowed subject to all just exceptions. COCP No.1153 of 2009 In this petition, the petitioner has alleged that vide order dated 26.5.2008 passed by this Court in CWP No.9365 of 2008, the respondent was directed to take a final decision by passing a speaking order on the Legal Notice (Annexure P-5 with the writ petition) within a period of two months from the date of receipt of the order. It has been further alleged that the aforesaid order was duly communicated to the respondent vide legal notice dated 9.7.2008 (Annexure P-3 with the contempt petition) but the respondent has failed to comply with the same. In view of the aforesaid assertions made by the petitioner, notice of motion is issued to the respondent. Mr. Rajesh Garg, Additional Advocate General, Punjab on the asking of the Court, accepts notice on behalf of the respondent. After hearing learned counsel for the parties, I deem it appropriate to direct the respondent to decide the legal notice (attached as Annexure P-5 with the writ petition) within one month from today and if COCP No.1153 of 2009(O&M) -2- the same has already been decided, the petitioner shall be communicated of the order passed on the aforesaid legal notice within one month from today. This direction is given only if the aforesaid legal notice (attached as Annexure P-5 with the writ petition) was received by the Department. The petition stands disposed of.

Kishori Lal vs D.S. Jaspal on 2 July, 2009

Punjab-Haryana High Court

ORDER 1. The relevant facts out of which this civil revision application and the civil application arise are briefly as follows. The applicant and opponent No. 1 are brothers. Opponents Nos. 2 and 3 are the sons of opponent No. 1. There were certain disputes between the applicant on the one hand and the opponents on the other with regard to joint family properties, which were referred to arbitration. During the pendency of the arbitration proceedings, the applicant made an application for grant of a succession certificate in order to enable him to withdraw a sum of Rs. 31,000 which was lying with some banks in Ahmednagar to the credit of the father of the applicant and opponent No. 1 who died on 24-5-1954. That application was granted and the succession certificate was issued in favour of the applicant. After obtaining the aforesaid succession certificate, the applicant withdrew the aforesaid amount of Rs. 31,000 from the banks after furnishing security as ordered by the Court which granted the succession certificate to him. (2) The arbibritration proceedings have apparently not yet terminated. The opponents have instituted a special civil suit in the Court of the Civil Judge, Senior Division. Ahmednagar, claiming Rs. 25,992 from the applicant in respect of opponent No. 1's half share in the amounts lying with the banks and in respect of opponent No. 1's half share in the immoveable property. In that suit he also made an application for the issue of an injuction restraining the applicant from withdrawing the money lying with the banks. That application was rejected. Against the order rejecting the application, the opponents preferred Appeal from Order No. 234 of 1957 before this Court. It went up for hearing before Tendolkar J. on 16-12-1957. It would appear that the dispute between the parties was settled before him. In the course of his order concerning this settlement Tendolkar J. observed as follows: ".................Undoubtedly, when the Court granted the succession certificate, it enable the respondent to withdraw the amount, and since it was making an order enabling him to withdraw the amount, it required him to give security for the one-half share of the first appellant in the said amount; but the order that the appellants had asked for before learned Civil Judge did not in any manner affect the provisions of the order for a succession certificate. Mr. Kotwal appearing for the respondent quite fairly agrees that after withdrawing the said amount his client will deduct therefrom the costs of obtaining the successions certificate and will deposit in Court one-half share of the balance within a month after withdrawing the amount. Having regard to this offer of the respondent made by Mr. Kotwal, it is not necessary either to disturb the order of the Civil Judge or to make any substantive order in the appeal". The applicant has now come up to this Court for setting aside the order of Tendolkar J., alleging that Mr. Kotwal had no authority to settle the matter in the way he has done. (3) Before dealing with the aforesaid contention, it would be convenient to mention that after the order of Tendolkar J. was passed the opponents made an application to the Court of the Civil Judge for the issue of a direction to the applicant requiring him to deposit opponent No. 1's half share in the amount withdrawn by him from the banks. This application was opposed by the applicant, but was allowed by the learned Judge. Against the order of the learned Judge allowing the application the applicant has come up inrevision and that is Civil Revision Application No. 1378 of 1958. (4) It was vehemently argued by Mr. Pendse on behalf of the applicant that Advocates who have diled vakalatnamas on behalf of their clients have no power to enter into a compromise on behalf of their clients unless the vakalatnama specifically empowered them to enter into a compromise. In support of his contention be relied upon the decisions in Saratkumari v. Amulyadhan, AIR 1923 P. C. 13, Sourindra Nath v. Heramba Nath, AIR 1923 P. C. 98 and Keshav v. Subba Manga, 41 Bom LR 994 : AIR 1939 Bom 490. It may be mentioned that in all these cases what the Court was called upon to consider was the power of a pleader to enter into a compromise. None of these cases dealt with the question of the power of an Advocate to compromise a suit. In Sourendra Nath Mitra v. Tarubala Dasi, it was held by their Lordships of the Privy Council that an Advocate in India, whether practising in the Presidency towns or in the mofussil,who derives his general authority for being briefed in a suit on behalf of the client, has implied authority to settle and compromise in all matters connected solely with the action in which he hasreceived a brief (but not in matters merely collateral to the action), unless he has received express instruct ions to the contrary from his client. This decision of their Lordships goes against the contention advanced before me by Mr. Pendse. Mr. Pendse, however, relies upon the following passage in the judgment of their Lordships at p. 652 (of Bom LR): (at p. 162 of AIR): "...............Their Lordships desire to confinetheir decision on this point to the case of advocates, whatever their qualifications, admitted as such by the respective appropriate Courts in India, who derive their general authority for being briefed in a suit on behalf of a client. Where the legal representative in Court of a client derives his authority from an express written authority, such as a vakalatnama, different consideration may well arise, and in such cases their Lordships express no opinion as to the existence of any implied authority of the kind in decision". Mr. Pendse argues that these observations of their Lordships would clearly show that where an Advocate has filed a vakalatnama his powers must be deemed to be limited to matters specifically mentioned in the vakalatnama. In other words, his argument is that there is no scope for implying any powers with an Advocate who has in his favour a vakalatnama from his client who has engaged him. It seems to me that though their Lordships have stated that other considerations will have to be borne in mind while considering the question as to whether Advocates deriving their authority from a vakalatnama have an implied power to enter into a compromise, their Lordships have not expressed any opinion to the effect that where a vakalatnama exists there is no scope for implying in favour of the Counsel authority with regard to matters which are not specifically mentioned in the vakalatnama. On the basis of the decision of their Lordships it has been held by a Full Bench of the late High Court of Nagpur in Jiwabai v. Ramkuwar, I. L. R. 1946 Nag. 824 : AIR 1947 Nag 17, that Counsel in India, whether barristers, advocates or pleaders, have inherent powers, both to compromise claims and also to refer disputes in Court to arbitration, without the authority or consent of the client, unless their powers in this behalf have been expressly countermanded, and this is so whether the law requires a written authority to act or to plead or not. It is true that a Division Bench of the same High Court have in Supaji v. Nagorao, AIR 1954 Nag 250, pointed out that the view taken by the Full Bench in so far as the scope of the authority of pleaders is concerned is not in accord with the decision of their Lordships of the Privy Council in AIR 1923 P. C. 13, and AIR 1923 P. C. 98. But the Division Bench has accepted as correct the view of the Full Bench to the effect that the authority of an Advocate to compromise is implicit in the appointment of the Advocate unless it is expressly countermanded by the client. I respectfully agree with the view taken in these cases and hold that Mr. Kotwal had an implied authority to enter into a compromise with respect to the matter under appeal. (5) It must, however, be borne in mind that the implied authority of an Advocate to enter into a compromise is limited to the action in which he has been engaged and does not extend to matters which are extraneous to the action or which are merely collateral to it. It is argued by Mr. Pendse that here the compromise is beyond the authority of the Counsel because it embraces a matter which is extraneous to the appeal before this Court. It seems to me that this argument is correct and must be accepted. Now, the matter which was before this Court was whether a temporary injuction should issue to the present applicant, i.e., to the respondent in the appeal, or not. No question of depositing any money was at all involved in this appeal. On the other hand, what was sought by the appellants in the appeal, I.3., the present opponents, was a restraint order against the present applicant, prohibiting him from withdrawing certain monies which were in deposit with certain banks. The effect of the order of the High Court passed on the consent accorded by Mr. Kotwal is to make available to opponent No. 1 the amount with respect to which the opponents had sought an injunction. No doubt, under that order the applicant is only required to deposit half of the amount withdrawn by him in Court; but upon the order as it stands, if such amount is deposited by the applicant, the opponents will be a liberty to obtain permission of the Court to withdraw the amount on such terms as the Court may impose on them. In my opinion, what was agreed ti by Mr. Kotwal is this quite extraneous to the matter which was before this Court in the appeal. In Sheonandan Prasad Singh v. Abdul Fateh Mohammad Reza, , their Lordships of the Privy Council observed at pages 847-8 (Bom LR): (at-p 121 of A.I.R.) as follows: "But whatever may be the authority of counsel, whether actual or ostensible, it frequently happens that actions are compromised without reference to the implied authority of counsel at all. In these days communication with actual principles is much easier and quicker than in the days when the authority of counsel was first established. In their Lordships' experience both in this country and in India it constantly happens, indeed it may be said, that it more often happens that counsel do not take upon themselves to compromise a case without receiving express authority from their clients for the particular terms: and that this position in each particular case is mutually known between the parties." Then their Lordships proceeded to observe:- "Their Lordships, however, think it advisable to say that if the facts are as they suppose them to be, viz. that the attack on the plaintiff's title was not seriously made in the Court of Appeal, counsel's authority could not in any circumstances extend to an agreement to part with the plaintiff's rights in the property over which the mortgage was claimed which the plaintiff's were seeking to get rid of ...." After making these observations, their Lordships quoted with approval the following observations of Pollock C. B. in Swinfen v. Lord Chelmsford (1860) 5 H. and N. 890:- "The other complaint made in the first count is, that the defendant agreed, on the plaintiff's behalf that the estate should be given upand a conveyance of it be executed by the plaintiff. As to this, the plaintiff has always contended that the defendant had no authority or power to make such an agreement, that it was not binding and that the agreement was a nullity; and we are of opinion , that although a counsel has complete authority over the suit, the mode of conducting it, and all that is incident to it - such as withdrawing the record, withdrawing a junior, calling no witnesses, or selecting such as, in his discretion, he thinks ought to be called, and other matters which properly belonging to the suit and the management and conduct of the trial -we think he has not, by virtue of his retainer in the suit, any power over matters that are collateral to it. For instance, we think, in an action for a nuisance between the owners of adjoining land- however desirable it may be that litigation should cease by one of the parties purchasing the property of the other, we think the counsel have no authority to agree to such a sale and bind the parties to the suit without their consent, and certainly not contrary to their instructions, and we think such an agreement would be void." Here if we substitute "injunction" for "nuisance", the analogy between the case decided by Pollock C. B. and the present case would also be very clear. In my opinion, therefore, though Mr. Kotwal had authority to compromise, his authority did not extend to agreeing on behalf of his client to deposit half the amount in Court. (6) For the reasons, I allow Civil Application No. 2318 of 1958 and direct that the appeal shall now be heard again. The Rule is made absolute in the civil application. (7) In -view of the fact that the civil application is allowed and the appeal is ordered to be re-heard, the civil revision application (No. 1378 of 1958) has become infructuous and is accordingly dismissed. (8) There will be no order as to costs. (9) The Appeal from Order will now be heard next week. (10) Order accordingly.

Surendra Shankar Walkar vs Laxman Shankar Waikar And Ors. on 2 December, 1958

Bombay High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.35452 of 2011 Santosh Yadav Versus The State Of Bihar ------------------------------- Vikash ( Mandhata Singh, J.) 02. 11.11.2011 Heard learned counsel for the petitioner and learned counsel for the State. For recovery of a loaded countrymade pistol, petitioner remained in custody after remand basing arrest dated 30.3.2011. Thus, having regard to the facts and circumstances of the case, let the above named petitioner be released on bail on furnishing bail bond of Rs. 10,000/- (ten thousand) with two sureties of the like amount each to the satisfaction of the Chief Judicial Magistrate, Bhojpur at Ara in connection with Jagdishpur P. S. Case No.47 of 2011.

Santosh Yadav vs The State Of Bihar on 11 November, 2011

Patna High Court - Orders

JUDGMENT Ranjan Gogoi, J. 1. Both the revision petitions having raised common question of law on identical facts are being disposed of by this common judgment and order. 2. The two revision petitioners in Criminal Revision No. 348 of 1999 and the solitary revision petitioner in Criminal Revision No. 391 of 1999 are the accuser Nos. 2, 3 and 4 in Complaint Case No. 136/99 pending in the Court of the learned Chief Judicial Magistrate, Dibrugarh. The accused petitioners have sought to invoke the powers under Section 482 of the Code of Criminal Procedure for quashing the criminal proceeding instituted before the learned Court below. 3. The power under Section 482 of the Code of Criminal Procedure to quash a proceeding pending before a competent Court is a rare power to be exercised only in cases whore the complaint petition and the initial deposition of the complaint, taken together and if accepted in its entirety do not prima facie disclose, the offence as alleged. The law governing the exercise of power under Section 482 of the Code of Criminal Procedure is no longer res integra. There can be no consideration of any possible defence that may be available to an accused and if the complaint petition and the initial deposition read together discloses the commission of the offence alleged, the power under Section 482 of the Code of Criminal Procedure would not be exercised by the High Court to quash the proceeding, 4. Applying the above law to the present case, what is noticed is that in the complaint petition, it has been stated that the accused-firm consisting of the accused Nos. 2, 3 and 4 as its partners had entered into a contract for delivery of one rake of cement to the complainant-firm and a sum of Rs. 40,00,000 was received by way of advance payment. The promise made by the accused-firm did not materialise and the accused firm had acknowledged its liability and had promised to effect the supply of cement. Eventually, the accused-firm agreed to return the money received and had issued un-dated cheques in favour of the complainant with the intimation that the complainant may fill up the dates as per instructions of the accused. It is the further case of the complainant that though repeated requests were made to the accused-firm to let the complainant know of the dates which should be entered in the cheques, the said requests were not responded to and eventually, instructions were issued to the bankers to stop payment of the cheques. There is a clear and categorical statement in the complaint petition that the accused Nos. 2, 3 and 4 are responsible for conduct of the business of the firm. The allegations made in the complaint petition as well as initial deposition as already noticed, must be accepted to be correct at this stage. On such an assumption being made, it cannot be said that the offence under Section 409 of the Indian Penal Code as alleged is not disclosed by the averments made by the complainant. 5. The only argument advanced by Mr. J.M. Choudhury, is that though in Para 3 of the complaint petition, the accused Nos. 2, 3 and 4 have been stated to be responsible for conduct of the business of the firm, the tenor of the complaint does not substantiate the same. The averments made in the complaint petition regarding the involvement of the accused Nos. 2, 3 and 4 in running the affairs of the firm are sufficiently clear and cogent and must be accepted to be correct at this stage. The law relied on by Mr. Choudhury in the case of Municipal Corporation of Delhi v. Ram Kishan Rohtagi and Ors., reported in AIR 1983 SC 67 turns on its own facts and would not applicable to the facts of the present case in view of the clear and categorical statement in Para 3 of the complaint petition regarding the involvement of the accused Nos. 2, 3 and 4 with the conduct of the business of the accused-firm. 6. For the aforesaid reasons, I do not find any merit in either of the revision applications. The same shall stand dismissed. The stay order, if any, stands vacated. Registry shall transmit the case records to the learned trial Court.

Author: R Gogoi

Shanti Devi Atal And Anr. vs Jain Enterprises And Anr. on 4 March, 2003

Gauhati High Court

Court No. - 38 Case :- WRIT - A No. - 42991 of 2010 Petitioner :- Pawan Kumar Respondent :- State Of U.P. And Others Petitioner Counsel :- B.M. Singh Respondent Counsel :- C.S.C. Hon'ble Shishir Kumar,J. Heard learned counsel for the petitioner and learned Standing Counsel. This is totally a misconceived petition by the petitioner, who is working as a Junior clerk in the office of respondents. It appears that respondent No. 3 has directed respondent No. 4 to hand over the charge to the petitioner and it has been mentioned in the order dated 28.06.2010 that in case respondents No. 4 does not hand over the charge to the petitioner, disciplinary enquiry will be initiated against respondent No. 4. Now the petitioner has approached this Court by filing this writ petition that respondents No. 4 has not handed over the charge in spite of the order dated 28.06.2010. There is no dispute to this effect that the petitioner is working in the same department as a Junior Clerk and the order dated 28.06.2010 has been passed by the authority concerned in addition to his duty directing another employee to handover the charge. In case respondent No. 4 has not handed over the charge, the responsibility cannot be fixed upon the petitioner, but unnecessrily petitioner has approached this Court by filing the present writ petition in a manner that he wants to take over the charge for the reasons best known to him. In view of the aforesaid fact, the writ petition is hereby dismissed. No order as to costs. Order Date :- 26.7.2010 Sazia

Pawan Kumar vs State Of U.P. And Others on 26 July, 2010

Allahabad High Court

[Section 15] [Complete Act]

Central Government Act

CRIMINAL MISC. M NO.1182 OF 2006 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: DECEMBER 09, 2008 Randhir Singh and others .....Petitioners VERSUS State of Haryana ....Respondent CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. Jitendra Sharma, Advocate, for the petitioner. (In Crl.Misc. M No.1182 of 2006) Mr. R. A. Sheoran, Advocate, for the petitioner. (In Crl. Misc. M No.38067 of 2006) Mr. Yashwinder Singh, AAG, Haryana, for the State. **** RANJIT SINGH, J. (ORAL) December 09,2008 ( RANJIT SINGH ) khurmi JUDGE This order will dispose of Criminal Misc. M Nos.1182 of 2006 (Randhir Singh and others Vs. State of Haryana) and 38067 of 2006 (Mukesh Kumari Vs. State of Haryana). The facts are being taken from Criminal Misc. M No.1182 of 2006. Petitioner Nos.1 and 2 are Naib Tehsildar whereas petitioner No.3, Sher Singh, was Auditor. They are arrayed as CRIMINAL MISC. M NO.1182 OF 2006 :{ 2 }: accused in FIR No.1 dated 18.1.2000. Subsequently, charges were framed against the petitioners. They remained unsuccessful in revision against the said order and that is how they have filed the present two petitions for quashing of the orders. The FIR is outcome of an enquiry conducted by Vigilance against Satpal @ Pahari resident of Krishana Colony, Bhiwani. He was accused of having amassed huge money. He is alleged to have acquired benami property illegally. One of the allegations against him is that he had purchased 202 kanals 12 marlas of land in villages Manheru and Goripur, District Bhiwani. This property is valued at Rs.18,57,255/-. Satpal @ Pahari also purchased houses measuring 115 Sq.yards and 85 Sq.Yards from Ved Parkash son of Puran Chand Mehta, resident of Krishna Colony, Bhiwani for a sum of Rs.4,80,000/- and Rs.4,45,000/- respectively. The sale deeds were registered on 12.8.1998 and 24.9.1999. The value of these houses purchased by Pahari were got assessed by Chand Ram, Xen, PWD and ultimately case under Sections 420, 409, 467, 468, 471 and 120- B IPC and also under Sections 13(1)(c) and (d) of the Prevention of Corruption Act was registered against him. As per the report of Chand Ram, Xen, the value of the house was assessed Rs.15,12,100/-, which was purchased in the name of Mukesh Kumar wife of Satpal @ Pahari, who is petitioner in the connected Criminal Misc. M No.38067 of 2006. It is further alleged that Mukesh Kumari has no source of income and as such, it is clear that only Satpal had purchased this house in the name of his wife. Allegation is that the present petitioners in Criminal Misc. M No.1182 of 2006 i.e. Naib CRIMINAL MISC. M NO.1182 OF 2006 :{ 3 }: Tehsildars and Auditor colluded with Satpal @ Pahari and got registered sale deed for the house for a sum of Rs.9,25,000/- whereas the value was Rs.15,00,000/-. Thus, a sum of Rs.91,447/- was paid less towards stamp duty. It is also noticed that the Collector rate in the area was Rs.3,000/- per Sq.yard. The allegation is that this registry was required to be impounded in exercise of powers under Section 47-A of the Stamp Act, which was not done and, thus, the accusation for the offence against the petitioners. The petitioners raised various submissions before the Court at the time of framing of charge. The Court, after considering the submissions, viewed that there was prima-facie sufficient evidence to the effect that accused Randhir Singh has committed offences punishable under Sections 218 and 120-B IPC and Mukesh Kumari had committed an offence punishable under Section 420 IPC. Sher Singh was accused of commission of offence under Section 120-B IPC. Satpal @ Pahari, however, was left out as he was not found to be a vendee and the sale deed was standing on the name of Mukesh Kumari i.e. his wife. This order was taken in a revision filed before the Additional Sessions Judge, Bhiwani, which was dismissed and that is how the petitioners are before this Court. Counsel for the petitioners has made three fold submissions. He would first submit that there has been no loss caused to the Government, as alleged in the FIR. The petitioners had allegedly followed the Collector rate and if that is taken into consideration, it can not be said that the value of the house was Rs.15 lacs. Counsel would also find fault with the observations of the CRIMINAL MISC. M NO.1182 OF 2006 :{ 4 }: Court wherein it has found that the petitioners were under obligation to take into consideration the site of the house while fixing the Collector rate and the stamp duty. He would submit that there is no such obligation on the part of the petitioners while registering a sale deed. Counsel would finally submit that provisions of Section 47-A of the Stamp Act would only require that in case there is any deficiency, the party can be directed to make up the same and as such, no criminal liability would arise against the petitioners. Counsel representing petitioner, Mukesh Kumari, would, however, say that she was not the actual purchaser and her husband had purchased this property on her name. She was neither present nor signed the said registered sale deed and as such, she can not be saddled with any responsibility. The whole grievance of the petitioners is that the registration of a sale deed in this case can not be said to be on a rate which had resulted into loss to the State as alleged in the FIR. The whole basis of this submission of learned counsel for the petitioners is that the petitioners had kept in view the Collector's rate as fixed and they were not under any obligation to carry out the site inspection to see in case the house is to be valued differently. While answering the aspect of assessment made by Xen Chand Ram, counsel would submit that this was done two years after the date of registration of a sale deed, which would not reflect the actual value of the house on the date the sale deed was registered. More appropriately, all these pleas can be gone into by the Trial Court. What is the Collector rate fixed during the relevant period again is a CRIMINAL MISC. M NO.1182 OF 2006 :{ 5 }: matter, which would require a proof by leading on record the formal evidence in this regard. What value is to be attached to the assessment, which was done by the Xen, is again a matter of evidence. Whether this valuation was on the date when the report was prepared or it was pertaining to a period when the sale deed was prepared is not forthcoming on record. This aspect also is required to be established by the respective parties. Whether the petitioners were under any obligation to take into consideration the site of the house while assessing its value and then fixing the stamp duty applicable, again will be a matter of evidence, which is required to be proved by the respective parties. In short, all the issues that have been raised would first required to be established by way of evidence before these could be taken into consideration. It will not be appropriate for this Court to interfere at this stage to see if any culpable collusion or negligence on the part of the petitioners is made out or not. Prima-facie, it is viewed that the petitioners have colluded in getting this sale deed registered at the rates mentioned. It can also be prima-facie said that assessment has been done by the Xen keeping in view the enquiries that were pending against Satpal @ Pahari. At that stage, he had nothing in mind so far as the role of the petitioners was concerned. This assessment is not done for the purpose of fixing rates or the Collector rates. This was for the purpose of assessment as to what is the value of the house and how it was shown. It would again be a matter of evidence whether the petitioners had innocently carried out the registration of these sale deeds or they had colluded in any manner with Satpal @ Pahari. CRIMINAL MISC. M NO.1182 OF 2006 :{ 6 }: Accordingly, no case for quashing of FIR, at this stage, is made out. So far as the case of Mukesh Kumari is concerned, she can not be heard saying that she was not the actual purchaser. She is actually shown as a purchaser of this property and she will have to prove this aspect that she was not responsible for this sale and as such, would have to seek whatever benefit is available to her from the Court. It will not be appropriate to interfere in the order framing charge. Both the petitions are accordingly dismissed. Needless to mention that any observation made here would not have bearing on the final outcome of the case.

Randhir Singh And Others vs State Of Haryana on 9 December, 2008

Punjab-Haryana High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 27509 of 2008(Y) 1. SARASWATHY, ... Petitioner Vs 1. DEVADASAN, S/O.PAPUKUTTY ... Respondent 2. SALIM SHA, S/O. RASAVU RAWTHER 3. UDAYAKUMAR, S/O. PAPUKUTTY 4. RAJU, S/O. SUKUMARAN, AGED 35 YEARS 5. USHA,D/O. NARAYANAN, AGED 54 YEARS For Petitioner :SRI.J.JAYAKUMAR For Respondent : No Appearance The Hon'ble MR. Justice V.RAMKUMAR Dated :22/09/2008 O R D E R V. RAMKUMAR , J. ========================== W.P.(C). No. 27509 of 2008 ========================== Dated this the 22nd day of September, 2008. JUDGMENT The petitioner who is the plaintiff in O.S. No. 70 of 2005 on the file of the Munsiff Court, Kottarakkara which was a suit for declaration and injunction, seeks a direction to dispose of A.S. No. 125/2007 filed by some of the defendants in the suit before the Sub Court, Kottarakkara challenging the judgment and decree dated 29.06.2007 passed by the Musiff Court, Kottarakkara in the suit. According to the petitioner, she is an Asthma patient who is desirous of enjoying the fruits of the decree and possession since she is in need of money for the treatment of herself and her husband. 2. This Court ascertained the status of the appeal from Sub Court, Kottarakkara. It has been informed that even though the appeal is ripe for hearing, in view of certain time bound directions from this Court, the learned Sub Judge has to dispose of several cases in the immediate future and that the court will be in a position to dispose of the Appeal (A.S. No. 125/2007) only by  W.P.(C) NO. 27509/2008 : 2: 31.03.2009. Such being the position, I am not inclined to issue directions as prayed for by the petitioner. However, the Sub Court, Kottarakkara shall make an earnest endeavour to see that A.S. No. 125/2007 is disposed of expeditiously and at any rate on or before 31.03.2009. This writ petition is disposed of as above. Dated this the 22nd day of September, 2008. V. RAMKUMAR, JUDGE. rv  W.P.(C) NO. 27509/2008 : 3:

Saraswathy vs Devadasan on 22 September, 2008

Kerala High Court

[Complete Act]

Central Government Act

JUDGMENT G.P. Singh, C.J. 1. This is a reference under Section 256(1) of the I.T. Act, 1961. 2. The assessee is a company. The relevant assessment year is 1962-63 for which the previous year is the financial year 1961 -62. The company carries on the business of manufacturing, inter alia, staple fibre and art silk fabrics and of exporting its goods outside India. The questions in this reference relate to calculation of tax deduction allowance under Section 2(5) of the Finance (No. 2) Act, 1962. The ITO in calculating the value of the turnover of exports for computation of qualifying income, under Rule 2(3) of the Income-tax (Determination of Export Profits) Rules, 1962, took into account only the value of goods exported as per invoice amounting to Rs. 8,25,668. The assessee-company submitted before the ITO that three further items should be taken into account in calculating the value of the turnover of exports. These items are: (i) Rs. 1,41,402, being drawback of customs duty, (ii) Rs. 86,526, being refund of excise duty, and (iii) Rs. 28,81,308, being value of import entitlements. The ITO refused to take into account these items on the ground that the word "turnover" as used in Rule 2(3) should be construed in its ordinary commercial usage to mean sale price of goods and, therefore, other benefits arising from exports cannot be added to the invoice value of sales for calculating the value of turnover of exports. The view taken by the ITO was affirmed in appeal by the AAC and the Tribunal. The Tribunal also, observed that the items which the assessee wanted to get included in the value of turnover of exports were indirect benefits and that the assessee would be getting double advantage as these indirect benefits have already formed part of the total profits of the company in the assessment of income-tax. 3. On an application made by the assessee, the Tribunal has referred for our answer the following questions of law : "(1) On the facts and in the circumstances of the case, whether the Tribunal was right in rejecting the applicant's claim that for the purpose of computing the tax deduction Under Section 2(5) of the Finance (No. 2) Act, 1962, in accordance with Rule 2(3) of the Income-tax (Determination of Export Profits) Rules, 1962, the direct incentives and benefits to which the applicant-company is entitled on exports, should be added to the invoice prices of the exported goods, to arrive at the ' export turnover ' ? (2) On the facts and in the circumstances of the case, whether the Tribunal in arriving at its conclusion, was right in holding that if the benefits in the form of drawback of customs duty, refund of excise duty and premium gain on value of yarn entitlements to which the applicant-company is entitled are added to the invoice prices of the exported goods, the ussessee would be getting double advantages as these indirect benefits have already formed part of the total profits of the applicant-company and erred in concluding that the applicant-company wanted them to be included again in the turnover of such export ? " 4. Section 2(5)(i) of the Finance (No. 2) Act, 1962, reads as follows : "2. (5)(i) An assessee being an Indian company or any other company which has made the prescribed arrangements for the declaration and payment of dividends within India or an assessee other than a company, whose total income includes any profits and gains derived from the export of any goods or merchandise out of India, shall be entitled to a deduction, from the amount of income-tax and super-tax with which he is chargeable for the assessment year commencing on the 1st day of April, 1962, of an amount equal to the income-tax and super-tax calculated respectively at one-tenth of the average rate of income-tax and of the average rate of supertax on the amount of such profits and gains included in the total income." 5. Rules have been made by the CBR under Section 2(5)(ii) which are known as the Income-tax (Determination of Export Profits) Rules, 1962. Rule 2 of these Rules, in so far as relevant, reads as follows : "2. Computation of qualifying income.--(1) Where an assessee referred to in Clause (i) of Sub-section (5) of Section 2 of the Finance (No. 2) Act, 1962 (XX of 1962), carries on any business of exporting goods or merchandise out of India, the amount of the profits and gains of such business with reference to which deduction of tax is admissible under that Sub-section (hereinafter referred to as the 'qualifying income') shall be computed in accordance with the provisions of Sub-rule (2) or Sub-rule (3) or Sub-rule (4) of this rule, as the case may be... (3) Where in the opinion of the Income-tax Officer the profits and gains on such exports cannot be ascertained, the amount of qualifying income shall be taken as a fraction of the profits and gains of the whole business of which such exports form a part and included in the total income (as reduced by the aggregate of the amount of any portion thereof on which income-tax or super-tax is not payable and the amount in respect of which a deduction of income-tax or super-tax has been granted under any provision of the Act), the fraction being proportional to the value of the turnover of such exports in relation to the total turnover of the business of which such exports form a part....." 6. The entitlement of an assessee-company for a deduction from the amount of income-tax and super-tax tinder Section 2(5) of the Finance (No. 2) Act is of an amount equal to the income-tax and super-tax calculated respectively at one-tenth of the average rate of income-tax and of the rate of super-tax on the amount of "profits and gains derived from the export of any goods or merchandise out of India" which are included in the total income. Rule 2 of the Rules made by the CBR under Section 2(5)(ii) is for computing the amount of profits and gains derived from the export business, which is referred to as the qualifying income in that rule. The rule must, therefore, be construed in the light of this object. If the amount of profits and gains on exports cannot be ascertained in accordance with Rule 2(2), the ITO has to apply Rule 2(3), as has been done in the present case. The amount of qualifying income under Rule 2(3) is computed as a fraction of the profits and gains of the whole business of which such exports form a part and included in the total income, the fraction being proportional to the value of the turnover of such exports in relation to the total turnover of the business of which such exports form a part. The I.T. authorities came to the conclusion that the word " turnover " in Rule 2(3) was restricted to the invoice value of sales and no other item could be added in the calculation of the turnover of exports. We are unable to agree that the word " turnover " which is not defined in the Act or the Rules, can be given such a restricted meaning. In Aris Bainbridge v. Turner Manufacturing Co. Ltd. [1951] 1 KB 563; [1950] 2 All ER 1178 (KB), McNair J., held that the expression " turnover of the company's annual business " did not merely include their net invoice sales but also all sums received and receivable as a result of the company's trading, whether normal or abnormal. On this view, various lump sums received by the company in discharge of war-time contracts from Government departments representing payment by them for articles taken over and for hardship suffered by the company as a result of the termination of the contracts were held to be part of the turnover of the company's annual business. It is not in dispute before us that the amounts received by the assessee-company as drawback of the customs duty and as refund of excise duty have been included in the computation of profits and gains of business of the assessee. It is also not in dispute that these items were received by the company only because of the export business carried on by it. The items are not referable to any other business carried on by the assessee. Once it is held that these items constitute income, they must have their source and as these items could not have been received by the assessee but for the export business carried on by it, a direct relationship between the receipt of these items and the export business is established. There cannot be a neutral source of income or nondescript business : [Rajputana Trading Co. Ltd. v. CIT [1969] 72 ITR 286 (SC), at pp. 288, 290]. As these items are not relatable to any other source, it must be held that they are derived from the export business carried on by the assessee and they must thus form a part of the turnover of the export business of the assessee. These items ought to have been included in the calculation of turnover of exports for purposes of Rule 2(3). 7. Now we come to the item of Rs. 28,81,308. This represents the income arising from import entitlements which were non-transferable. The company was permitted to import yarn which was used by it in the manufacture of textiles. Had the company purchased the yarn in the open market in India, it would have been required to pay much higher price than what it paid on import purchases and the difference resulted in the income of the above amount. The argument of the learned counsel for the assessee is that the assessee got import licences only because it exported goods with a view to compensate it against loss which it may have otherwise incurred in export business and the value of import entitlements must, therefore, be added in the calculation of the value of the turnover of exports. Now import entitlements are of two varieties, transferable and non-transferable. In the case of transferable import licences, the goods imported can be sold in the market by the importer. In the case of non-transferable import licences, the goods have to be utilised by the importer himself. But, on principle, there is hardly any difference. The profits and gains resulting in both the cases would be included in the total income. The question before us is whether the source of such income can be said to be the export business. In other words, whether the income resulting from import entitlements can be said to be profits and gains derived from the export business within the meaning of Section 2(5)(i). Now the word " derived " was construed by the Privy Council in CIT v. Raja Bahadur Kamakhaya Namyan Singh [1948] 16 ITR 325. In that case it was held that interest on rent was not agricultural income as it was not revenue derived from land. In holding so, the Privy Council observed (p. 328): " The word ' derived ' is not a term of Article Its use in the definition (Section 2(1) of the Indian I.T. Act, 1922) indeed demands an enquiry into the genealogy of the product. But the enquiry should stop as soon as the effective source is discovered. In the genealogical tree of the interest, land indeed appears in the second degree, but the immediate and effective source is rent, which has suffered the accident of non-payment. And rent is not land within the meaning of the definition." 8. This decision of the Privy Council was applied by the Supreme Court in Mrs. Bacha F. Guzdar v. CIT [1955] 27 ITR 1, at p. 7. The word "derived" in Section 2(5)(i) of the Finance Act must be similarly construed. Applying the test laid down by the Privy Council, let us examine as to what is the source of the profits resulting from the import entitlements. In the genealogical tree of this income, import comes first and export appears in the second degree. The income arising from import entitlements is directly related to the import activities or the import business of the assessee. It may be that it was because of the export business that the assessee got import licences, yet the connection of the income resulting from import entitlements to the export business is indirect and the direct, source, of this income is the import business. The amount of Rs. 28,81,308, being profits arising from import entitlements cannot, therefore, be included in the value of the turnover of exports under Rule 2(3). It is true that neither Rule 2(1) nor Rule 2(3) uses the word "derived", but the rule has to. be construed, as earlier stated, in the light of the object of Section 2(5)(i). A rule made under Section 2(5)(ii) for a computation of the qualifying income cannot enlarge the tax deduction allowance by widening the scope of the profits and gains of export business. The expressions "profits and gains of such business" and " profits and gains on such exports " as they occur in Rule 2(1) and Rule 2(3) respectively have to be given the same meaning as the expression "profits and gains derived from the export of any goods", which occurs in Section 2(5)(i). So construed, there is no room for including the value of import entitlements in the turnover of exports under Rule 2(3). This conclusion is fully supported by the decision of the Bombay High Court in Hindustan Lever Ltd. v. CIT [1980] 121 ITR 951 and by the decision of the Kerala High Court in Cochin Co. v. CIT [I978] 114 ITR 822. We respectfully agree with the view taken in these cases. Learned counsel for the assessee has relied upon the decision of the Madras High Court in CIT v. Wheel & Rim Co. of India Ltd. [1977] 107 ITR 168, in which a contrary view was taken. The Madras case has been expressly, dissented from by the Bombay High Court in the case referred to above. The Madras High Court has not taken notice of the decision of the Privy Council in Kamakhaya Narayan Singh's case [1948] 16 ITR 325, and we respectfully differ from the view taken in the Madras case. 9. The observations of the Tribunal about double advantage in respect of the items in question are wholly irrelevant and the learned standing counsel has also not supported the said observations. 10. For the reasons given above, we answer the questions as follows : (1) The Tribunal was not right in not including Rs. 1,41,402, being drawback of customs duty, and Rs. 86,526, lining refund of excise duty in calculation of turnover of profits from exports, within Rule 2(3) for computation of qualifying income. The Tribunal was, however, right in excluding the item of Rs. 28,81,308 representing profits from import entitlements in the calculation of turnover of exports under the said rule. (2) The question of double advantage is irrelevant. There will be no order as to costs of this reference.

Author: G Singh

Gwalior Rayon Silk Mfg. (Wvg.) Co. ... vs Commissioner Of Income-Tax on 31 January, 1983

Madhya Pradesh High Court

This Criminal Pefition coming on for admission this day, the court made: the following: V. ORDER Learned counsci for the respogn-zient. during the pendency of this tie Crl.A.No.550/ 2006 came to be ozghi further submitted that the;)etitiqn.n;',;f'i§the order in appeal before thisv In View of this deveiopmenf petition had become 2 petition is hereby rejected. :>KB/- L

Author: H N Das

Smt Susheel Appaji vs Smt Sunanda on 29 May, 2008

Karnataka High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM Crl Rev Pet No. 4577 of 2006() 1. R.RADHAKRISHNAN ... Petitioner Vs 1. STATE OF KERALA ... Respondent For Petitioner :SRI.AJAYA KUMAR. G For Respondent :SRI.V.VENUGOPALAN NAIR The Hon'ble MRS. Justice K.HEMA Dated :21/12/2006 O R D E R K. HEMA, J. ------------------------------------- Crl.R.P. No.4577 of 2006 ------------------------------------ Dated this 21st day of December, 2006. O R D E R In the result, Revision Petitioner is acquitted of offence under section 138 of the Negotiable Instruments Act, as offence is compounded. He is set at liberty forthwith. vgs. K. HEMA, JUDGE.   Revision Petitioner is the accused in C.C.No.209 of 2001 on the file of the Munsiff-Magistrate's Court, Paravur. Second respondent is the complainant therein. Revision petitioner was convicted and sentenced by the Magistrate's Court to undergo simple imprisonment for three months and also directed to pay compensation of Rs.50,000/- to the complainant in default of payment to undergo simple imprisonment for two months under section 138 of Negotiable Instruments Act. In appeal filed by him, the conviction and sentence were confirmed by the Additional District and Sessions Court. This revision arises from the said conviction and sentence. 2. At the time of hearing, both sides submitted that a petition as Crl.M.A.No.13303 of 2006 is filed for compounding the offence. It is also submitted by both sides that the matter is settled out of court amicably between the parties. On hearing both sides and on going through the averments in the petition, I am satisfied that this is a fit case to grant permission to compound the offence. Crl. M.A.No.13303 of 2006 and Revision Petition are allowed.

R.Radhakrishnan vs State Of Kerala on 21 December, 2006

Kerala High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C) No. 1708 of 2008(C) 1. RUBY C.R., AGED 17 YEARS, GROUP LEADER, ... Petitioner Vs 1. THE CHAIRMAN, APPEAL COMMITTEE, ... Respondent 2. THE GENERAL CONVENOR, 3. THE GENERAL CONVENOR, 4. KALAMANDALAM DHANYA, 5. KALAMANDALAM PRASANNA, 6. SUVARNA CHANDROTH, ARUNIMA, KOLLAM P.O 7. VARSHA, GROUP LEADER, 'MARGAMKALI' 8. STATE OF KERALA, 9. THE DIRECTOR OF HIGHER SECONDARY For Petitioner :SRI.M.SASINDRAN For Respondent : No Appearance The Hon'ble MR. Justice ANTONY DOMINIC Dated :15/01/2008 O R D E R ANTONY DOMINIC, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No.1708 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 14th day of January 2008 JUDGMENT The petitioner who had participated in Margom Kali in the District Level Youth Festival secured A-grade and the 7th respondent was given first prize with A-grade. It is stated that unsatisfied with the assessment of performance, petitioner had filed an appeal and that was rejected by Ext.P8. 2. The contention that is raised before me by the learned counsel for the petitioner is regarding the eligibility of the judges who have assessed the performance. It is stated that respondents 4 to 6 were not trained in Margom Kali. It is also contended that Exts.P6 and P7 are the Bio-Datas of respondents 4 and 5. Petitioner would contend that these two persons were qualified from Kalamandalam and that they were not trained in Margom Kali at all. According to him, "among the other qualifications for specialized item" occurring in Exts.P6 and P7, Margom Kali was inserted after the appeal was filed by the petitioner and in order to defraud the students. 2. I have heard the learned Government Pleader, who on instructions, submits that he had personally ascertained from the judges, whether they were trained in Margom Kali. Government  W.P.(C)1708/2008 2 Pleader submits that the 5th respondent and 6th respondent are qualified from Kalamandalam and they got training in Margom Kali also. It is also submitted that the judges were unanimous in the assessment of performance and that the difference of marks between the petitioner and the 7th respondent was 19. 3. From the facts as stated above, I have no reason to think that the judges were unqualified as contended by the petitioner. Learned Government Pleader has already ascertained that the judges had the qualification. That apart in Exts.P6 and P7, the fact that respondents 4 and 5 are trained in Margom Kali is also mentioned. Though the petitioner contends that Margom Kali has been inserted in Exts.P6 and P7 subsequent to the filing of the appeal, I am not persuaded to accept that contention. Learned Government Pleader also submits that the 5th respondent has confirmed that she has got training in Margom Kali. In view of this and also on account of absence of any materials suggesting the contrary, I am not inclined to accept the contention of the writ petitioner. I find no basis in the allegations raised in the writ petition. Writ Petition fails. Dismissed. ANTONY DOMINIC, JUDGE css 

Ruby C.R. vs The Chairman on 15 January, 2008

Kerala High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.14057 of 2008 SANJAY KUMAR @ SANJAY RAI Versus STATE OF BIHAR ----------- U.K. (Sheema Ali Khan,J) 2. 15.7.2008. Heard Mr. Ashok Kumar Choudhary learned counsel for the petitioner and Mr. Praveen Kumar Verma learned counsel appearing on behalf of the actual owner that is Ritu Rai and the State. The petitioner has challenged the order dated 14.3.2008 passed in Sessions Trial No.3075 of 2007 arising out of Dehri P.S. Case No. 116 of 2007 by which the court below has refused to release the truck bearing registration no.UP-64D/0975. The truck was seized for carrying wheat which was not accounted for. Smt. Ritu Rai is the truck owner and this petitioner had filed an application for release of the truck on the ground that he holds the 'Power of Attorney' on behalf of Smt. Ritu Rai, the truck owner. The 'Power of Attorney' is annexured and marked as annexeure-1 to this application. The court while hearing the matter called for a report from the Investigating Officer of the Police Station in question and the report of the Investigating Officer indicates that the police officers does not have any objection if the truck is released. The court below while considering the application for release has rejected the application on the ground that Smt. Ritu Rai has not appeared and the application has not been filed by her rather by a different person. He has also observed that the offence is serious in nature, and as such, has rejected the application for release of the -2- truck. This Court finds that the owner of the truck that is Smt. Ritu Rai has no objection if the truck is released and has accepted the fact that the petitioner holds a valid' Power of Attorney' on her behalf by filing an application for release of the truck. In the circumstances, I find that there is no reason why the truck should not be released in favour of the petitioner subject to the conditions that the court may impose. The truck should be released within a period of one month on receipt of this order. This application is thus allowed to the extent aforesaid.

Sanjay Kumar @ Sanjay Rai vs State Of Bihar on 15 July, 2008

Patna High Court - Orders

Gujarat High Court Case Information System Print TAXAP/2340/2009 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD TAX APPEAL No. 2340 of 2009 ========================================================= DY CIT CIRCLE 4(1) - Appellant(s) Versus SEW EURODRIVE INDIA P LTD - Opponent(s) ========================================================= Appearance : MR KM PARIKH for Appellant(s) : 1, None for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI and HONOURABLE MS JUSTICE SONIA GOKANI Date : 11/05/2011 ORAL ORDER(Per : HONOURABLE MR.JUSTICE AKIL KURESHI) NOTICE returnable on 29/06/2011. (AKIL KURESHI, J.) (SONIA GOKANI, J.) sompura     Top

Author: Akil Kureshi,&Nbsp;Ms Gokani,&Nbsp;

Dy vs Unknown on 11 May, 2011

Gujarat High Court

JUDGMENT S.C. Deb, J. 1. The following questions are involved in this reference under Section 256(2) of the I.T. Act, 1961: "1. Whether, on the facts and in the circumstances of the case, the Tribunal was justified in ordering the imposition of penalty on the assessee under Section 271(1)(c) read with Section 274 of the Income-tax Act, 1961, on the annual income of M/s. Hindusthan Trading Corporation on the return filed by Sm. Bhadra Mitra ? 2. If the answer to question No. 1 is in the affirmative, whether on the facts and in the circumstance of the case, the Tribunal was justified in confirming the quantum of penalty and dismissing the appeal? " 2. The assessee is an individual and the reference relates to the assessment year 1965-66. In the return of income the assessee did not show the income from the business under the name and style of M/s. Hindusthan Trading Corporation and the capital gains from the sale of a land which stood in the name of his wife. 3. The ITO included the income of Hindusthan Trading Corporation and also the capital gains in respect of the aforesaid in the assessment. The AAC dismissed the appeal filed by the assessee who filed a further appeal before the Tribunal. 4. The Tribunal found that the business of Hindusthan Trading Corporation belonged to the assessee. The said finding of the Tribunal was based on an admission made by the assessee in the earlier appeals that the aforesaid business belonged to him. In that view of the matter, the Tribunal upheld the inclusion of income from the said business. 5. The Tribunal, however, remanded the question of inclusion of capital gains in the assessment of the assessee to the AAC for a fresh decision. 6. In the penalty proceedings, the IAC to whom the penalty proceedings were referred, held that the assessee had concealed the particulars of his income and furnished inaccurate particulars thereof both with regard to the income from the business of Hindusthan Trading Corporation and the capital gains. The AAC has rejected the appeal filed by the assessee. The Tribunal has sustained the imposition of penalty. 7. In view of the facts and the circumstance of the case relating to Hindusthan Trading Corporation, we answer question No, 1 in the affirmative and in favour of the revenue. 8. We now reframe question No. 2 as follows : " Whether, on the facts and in the circumstances of the case, the Tribunal was justified in confirming the quantum of penalty ? " 9. As already stated, in the quantum appeal the Tribunal has remanded the question of inclusion of capital gains in the assessment of the assessee. Therefore, in our opinion, the Tribunal was not justified in confirming the quantum of penalty which included the capital gains. 10. In the premises, we answer question No. 2 in the negative and in favour of the assessee. 11. The Tribunal will re-hear both the parties on the issue of inclusion of penalty relating to capital gains after the quantum appeal for the aforesaid assessment year is finally disposed of. 12. There will be no order as to costs. 13. Let a copy of the order of the Tribunal passed in the quantum appeal be kept on the record as desired by the learned counsel for both the parties. R.N. Pyne, J. I agree.

Author: S Deb

Dilip Kumar Mitra vs Commissioner Of Income-Tax on 31 March, 1980

Calcutta High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12106 of 2011 Devi Prasad Mishra & Anr Versus Devendra Prasad Singh ----------- Saurabh ( Mungeshwar Sahoo, J.) 04. 28.07.2011 Four weeks time is granted to the petitioners to remove the defect pointed out in the Stamp Report.

Devi Prasad Mishra & Anr vs Devendra Prasad Singh on 28 July, 2011

Patna High Court - Orders

CENTRAL INFORMATION COMMISSION Club Building, Opposite Ber Sarai Market, Old JNU Campus, New Delhi - 110067. Tel: +91-11-26161796 Decision No.CIC/SG/A/2010/000095/6962 Appeal No. CIC/SG/A/2010/000095 Appellant : Mr. Om Prakash, S/o Sh. Kishori Lal, 52/36, A-2, Gali No. 17 Nai Basi, Anand Parbat, New Delhi-110005 Respondent : 1) Mr. Qamar Alam APIO & Depot Manager Delhi Transport Corporation, Narayna Depot, New Delhi 2) Ms. Renu Popli Public Information Officer & Sr. Manager, Delhi Transport Corporation, BBM Complex, Head Quarters, New Delhi RTI application filed on : 12/08/2010 PIO replied : 07/09/2009 & 08/09/2009 First Appeal filed on : 22/09/2010 First Appellate Authority order : 23/10/2009 Second Appeal Received on : 11/01/2010 Notice of Hearing Sent on : 25/01/2010 Hearing Held on : 25/02/2010 After reply of the PIO, Appellant was unsatisfied with following points (out of 13): Sl. Information Sought Respondent no.2 Respondent no.1 1. Copy of Due & Drawn Photocopy of Due and Drawn 1, 2, 3 ,4, 5-is not statement of his pension be statement are enclosed(Page concerned with this unit. provided. No. 3-7) Related information is 2. Copy of the pension Photocopy of Pension concerned with Pension calculation sheet be Calculation Sheet(page no. 2) Deptt(Head). provided. 3. Why he was paid pension Pension has been paid to the with arrear w.e.f 03/08/2009? Appellant after voluntary Whereas he was entitled for retirement (from 01/05/1993). pension w.e.f. 01/05/1993. 4. The name of officer who In the matter of pension delayed his pension. payment of staff has been received((Receipt no. 6079 dt 28/05/2009) in this office from Page 1 of 4 Depot, Manger, Narayana Depot . acceptation of payment of pension had been taken by the competent official. The pension to retired staff had issued from August, 2009. 5. 05. What action has been It is concerned with Pension taken or will be initiated Deptt. against the officers who delayed his pension? 6. He was terminated from the Appellant had drawn a amount In this context, it is services of DTC in 1988 in of Rs 6409/ on 28/07/1989 informed that in office the strike. He deposited an during dismiss in year 1988. order no. Adml.3(29)/94 amount of Rs. 6409/-towards what amount with interest (Rs. dt. 25/11/1994, in which it Management share. Why the 48896 paise 77, from is shown clearly that an interest on Rs. 6409/- from 28/07/1989 to 30/06/2009) had interest will be calculated 1989 to 03/08/2009 was been deducted from payable on the amount (drawn from calculated to the tune of Rs. amount, after the staff had Future Fund) from the date 48000/ with interest. been paid. The calculation of of drawing amount to Whereas the interest from interest had been done under submitting date. 1989 to 30/04/1993 was to be rule. deducted. 7. Whether DTC earned interest It is question. Information is As sl. No 1. on the amount of his not sought by the Appellant. management share form Therefore, information can not 30/04/1993 to 03/08/2009? be provided. 8. He was paid pension on There is no provision of As Sl. No. 1 03/08/2009. Why he was not interest on pending pension in given interest on it? Whereas CCS Rule. pension would have been stated from 01/05/1993. Detailed be provided. 9. The departmental There is no any official guilt in This question is not proceedings were held the matter of Appellant's concerned with this unit. against him whether any pension because the matter officer was declared at fault. decided finally was received in Name of the officers be the pension cell on 28/052009. intimated. 10. The Number of officers who were responsible for paying interest on the pension. Action taken against him. 11. His Management share of P. The matter concerning pension F was available with Pension was received in the pension Trust. If there was any cell on 28/052009. After departmental proceeding acceptance of competent pending, what was the reason official, a payable amount had for not giving him been paid to staff under rule. provisional pension under rule 69 of CCS Pension Page 2 of 4 Rule? 12. Whether the DTC There is no provision of Management has not earned interest on pending pension in interest own his Management CCS Rule. share of P.F? If yes, whether Pension Trust entitled him for the payment of interest on his pension? 13. Till date how many The list of staffs who had been employees were given paid interest on pending interest on pension by the pension as per order of the Pension Trust or DTC or by Court is enclosed(page no. 1) the Court. List of the employees along with the copy of the court orders WP Writ No. LPA & SLP etc. be provided. PIO's Reply: Information in respect of point no. 1, 2, 3, 4, 5, 10, 11, 12, 13 was pertained to Pension Department(HQ) as the Respondent no.1 mentioned. Grounds for First Appeal: Unsatisfactory reply. Incomplete information. Order of the First Appellate Authority: That the Appellant was satisfied with point No. 01, 02, 09 & 13 of his RTI application dated 12/08/2009. That requested information of the remaining points about which Appellant was not satisfied with the reply already given to him can, be obtained by the Appellant after inspecting records/ file in which his case of disbursement of pension was processed/ settled in the Pension Cell (HQ) as well as in Naraina Depot. Sr. Mangar (Pension)/(Hq./PIO and DM, Naraina Depot/APIO were directed to allow inspection of said original records to the Appellant within 10 days of the issue of appeal order with liberty to take photocopy of such record which he consider as part of the requested information. Grounds for Second Appeal: Point no. 5 &7 had not been provided. Other information was incomplete & incorrect. Relevant Facts emerging during Hearing: The following were present: Appellant: Mr. Om Prakash; Respondent: Ms. Renu Popli, Public Information Officer & Sr. Manager(HQ); Mr. Qamar Alam, APIO & Depot Manager (Narayna Depot); The PIO has given considerable information to the Appellant is now directed to give the following clarification: 1- The PIO states that the strike period was not counted in his qualifying service initially for award of pension and subsequently after a representation this has been considered. Decision: The appeal is partially allowed. The APIO Mr. Qamar Alam (Narayna Depot) is directed to give the information as mentioned above to the Appellant before 05 March 2010. This decision is announced in open chamber. Notice of this decision be given free of cost to the parties. Any information in compliance with this Order will be provided free of cost as per Section 7(6) of RTI Act. Shailesh Gandhi Information Commissioner 25 February 2010 (In any correspondence on this decision, mention the complete decision number.)Rnj Page 4 of 4

Mr. Om Prakash vs Delhi Transport Corporation on 25 February, 2010

Central Information Commission

IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No.880 of 2011 In (CIVIL WRIT JURISDICTION CASE 6281/2011) 1. Sudha Kumari Sinha D/O Chandeshwar Prasad W/O Satyendra Kumar R/O Village - Bakaur, P.O. - Paithana, P.S. - Islampur, Distt. - Nalanda ......Appellant Versus 1. The State Of Bihar through the Principle Secretary, Department of Social Welfare, Govt. Of Bihar, Patna 2. The District Magistrate, Nalanda at Biharsharif 3. The District Programme Officer, Nalanda at Biharsharif 4. Child Development Project Officer, Islampur, Nalanda ..Respondents ---------------------------------- 6 08-11-2011 Heard the parties. The appellant preferred a writ petition bearing CWJC no. 6281/ 2011 on 6-4-2011 to raise a grievance that although she had filed her application form for selection and recruitment to the post of Lady Supervisor under Nalanda district, on-line through computer on 18-7-2010 and had already sent a copy of the application form through registered post on 19-7-2010, she had wrongly not been considered for the said appointment as was apparent from a select list (annexure-3 to the writ petition) dated 7-3-2011. The writ court dismissed the writ petition summarily on 8-4-2011 on the ground of delay and laches. That order is under appeal. Learned counsel for the appellant has rightly submitted that the writ court failed to notice that cause of action arose for the writ petitioner/ appellant only when she came to know in March, 2011 that her name was left out of consideration and not included in the select list. The writ court was guided only by return of the copy of application form sent through registered post, to the writ petitioner on 28-07-2010 without disclosing any reason. We have been shown a merit list for Lady Supervisors which is dated 23-9-2011,only to highlight that the selection process is still going on and, hence, the writ petition should not be dismissed only on the ground of delay. In the facts and circumstances of the case, we find merit in the submission advanced on behalf of the appellant that the writ petition should not have been dismissed on the ground of delay and laches. Instead of sending the matter back to the writ court, we have applied our mind to the facts brought on record through counter affidavit and supplementary 3 counter affidavit. There is no dispute that application form sent on behalf of the appellant on-line through computer had been received by the concerned authority well before last date, that is, 21-7-2010. In fact it was admittedly received on 18-7-2010. The only issue to be decided is whether as per terms of the advertisement contained in annexure-1 to the writ petition, the last date, that is, 21-7-2010, was prescribed for receipt of application form on-line or it applied also for receipt of copy of the application form by registered post. A bare perusal of Clause 1 of the advertisement read with Clause 1 of the procedure for appointment which is mentioned in the advertisement (annexure-1), it is apparent that application form was required to be submitted on-line only. The further stipulation was only in respect of copy of the application form which was required to be sent to a particular officer by registered post. Clause 2 of the advertisement prescribed 21-7-2010 as last date for receipt of application form. No last date was prescribed for receipt of copy of application form by registered post. 4 In such a situation, benefit of doubt, if any, had to be given to the writ petitioner, the appellant. In view of aforesaid discussion, the appeal as well as the writ petition is allowed. The order under appeal is set aside and the concerned respondents are directed to consider the case of appellant/ writ petitioner for selection along with cases of other similar persons in accordance with law. It is once again made clear that the case of appellant/ writ petitioner shall be considered on merits by treating her application form to have been received within time. It is clarified that an interim order was passed in favour of the appellant on 10-8-2011 directing the respondents to either keep one vacancy unfilled or else all the appointments will be subject to result of this appeal. In that view of the matter, the respondents shall have no difficulty in considering the case of the appellant on merits. (Shiva Kirti Singh, J.) (Shivaji Pandey, J.) BKS/-

Sudha Kumari Sinha vs The State Of Bihar & Ors on 8 November, 2011

Patna High Court - Orders

Court No. - 18 Case :- WRIT - A No. - 71859 of 2009 Petitioner :- C/M Ram Devi Ram Dayal Girls Inter College Respondent :- State Of U.P. & Others Petitioner Counsel :- K.K. Tripathi Respondent Counsel :- C.S.C. Hon'ble Sudhir Agarwal,J. Heard Sri K.K. Tripathi, learned counsel for the petitioner. In my view, this is a frivolous petition at the instance of petitioner, Committee of Management Ram Devi Ram Dayal Girls Inter College (hereinafter referred to as "the College"), Acharya Nagar, Kanpur. It is not disputed that a requisition was sent to the Secondary Education Service Commission in 2007 for making direct recruitment on two sanctioned posts of teachers in the College pursuant whereto respondents no. 4 and 5 have been selected and allotted to petitioner's institution for appointment but despite several letters sent by the District Inspector of Schools, the petitioner not only avoided appointment of these two teachers but has filed this petition in order to justify its action. The counsel for the petitioner could not dispute that requisition sent in 2007 was never challenged by the petitioner. Besides, no steps were taken by the petitioner for surrendering any post of teacher. However, it is alleged that the number of sanctioned posts in the institution concerned is much more than the required one due to reduction of strength of the students. Once requisition has been sent and selection made by the Commission under the provisions of U.P. Secondary Education Services Selection Board Act, 1982 (hereinafter referred to as "the Act"), the management is bound to make appointment of the candidates recommended by the Commission otherwise it is open to the educational authorities to take appropriate steps under Section 17 of the said Act. The petitioner in my view, having not approached this Court with clean hands and not only is disentitled to any relief but the petition deserves to be dismissed with costs. The petition is accordingly dismissed with costs of Rs. Ten Thousand. Order Date :- 5.1.2010 Akn

C/M Ram Devi Ram Dayal Girls Inter ... vs State Of U.P. & Others on 5 January, 2010

Allahabad High Court

JUDGMENT 1. On a perusal of paragraphs 8 and 9 of the plaint (the plaintiff referring in paragraph 9 to a petition which he gave to the Deputy Tahsildar, a Revenue Officer whose duty is to look after public paths running through Porambokes) and of the judgment of the lower Appellate Court, we have no doubt that the path in question is a public path. 2. It is clear law that an individual member of the public has no cause of action to bring a separate suit in respect of an obstruction to a public way without both alleging and proving special damage of a substantial character. The allegation of damage in the plaint is very vague and indefinite and is wholly insufficient to sustain a separate suit. See Khaji Sayyad Hussain Sahib v. Ediga Narasimhappa 16 Ind. Cas. 962 : 12 M.L.T. 491 : (1913) M.W.N. 991 : 23 M.L.J. 539 and Kandasawmy Kovundan v. Karupanna Kovundan 21 Ind. Cas. 601 : (1913) M.W.N. 1001 : 14 M.L.T. 509 . 3. The second appeal is dismissed with costs

Siva Sankara Reddy vs Muthusami Konan And Anr. on 8 September, 1914

Madras High Court

JUDGMENT Sabyasachi Mukharji, J. 1. This is an application by tabular statement dated 22nd February 1968 for execution of a decree by sale of certain shares. On 18th of January, 1948 the Punjab National Bank Ltd, herein referred to as the plaintiff, instituted a suit in this High Court against the Hind Textile Ltd., Nanda Kishore Jhajharia and Seth Ramdhondas Jhajharia, inter alia, for a decree for Rupees 3,64.913-8-7, for a declaration that the securities mentioned in para, 11 of the plaint are charged with the repayment with the dues of the plaintiff. On the 16th of February, 1949 a decree was passed by this High Court whereby it was decreed that the defendant. Hind Textile Ltd. and Nanda Kishore Jhajharia should pay to the plaintiff a sum of Rs. 3,64,913-8-9 with an interest therein at the rate of 6 per cent per annum from the date of the decree until realisation and it was further ordered and decreed that the securities mentioned in paragraph 11 of the plaint should be charged with the repayment of the amount payable to the plaintiff. No relief was claimed against the defendant Seth Ramdhondas Jhajharia except that the claim for declaration that the securities mentioned in paragraph 11 of the plaint are charged with the repayment of the amount payable to the plaintiff by the defendant in the said decree. 2. Thereafter it appears that on the 2nd of December, 1950 an application was made for execution of the said decree by arrest and detention of Shri Jhajharia. The said application was, however, abandoned. On the 28th September, 1951 a second application for execution of the decree by attachment of shares of Shri Jhajharia in Messrs. Hall and Anderson was made and a writ of attachment of such shares was Issued. The said writ, however, could not be executed for want of particulars. On the 29th of April, 1334 the third application for execution of the decree by arrest and detention of Shri Jhajharia was made. No order was made on the application except as to costs. Shri Jhajharia gave an undertaking to pay the decretal amount. This Court gave liberty to the decree-holder to make further application, if necessary. On the 2nd of August, 1956 the fourth application for execution was made by the decree-holder for arrest and detention of Shri Jhajharia. The said application was, however, ultimately abandoned. On the 20th of January. 1961 the fifth application was made by the decree-holder under Order 21, Rule 41 of the Civil P. C. for examination of Shri Jhajharia as to his properties and assets. On 20th of July, 1962 payment of a sum of Rs. 20,000 was made. The circumstances under which this payment was made are matters of considerable Importance in this case. It will further be considered in detail later on. On 27th of August. 1962 examination of Shri Jhajharia as a judgment-debtor took, place. This Court directed Shri Jhajharia to give the decree-holder a statement in writing containing detailed particulars of the share-holdings in different companies and also statement showing the particulars of any decree that might have been passed by any Court of law in favour of Shri Jhajharia against any party with the detailed particulars as to the amounts involved. On the 27th of September, 1962 another application was made by the decree-holder for attachment of the shareholdings of Shri Jhajharia and certain decrees obtained by him. 3. On the 14th of March, 1963 an order was made by this Court attaching shares standing in the name of Shri Jhajharia mentioned in the said Tabular Statement and also the said decrees, Shri Jhajharia preferred an appeal from the said order. On the 12th of January, 1965 the decree-holder made an application for sale of the said attached shares. On the 3rd of August, 1965 the said appeal of Shri Jhajharia against the order of this Court dated the 14th March, 1963 was disposed of by the following order;-- "The decree-holder will put to sale the shares mentioned in the decree in the first instance and only when these shares are found unsaleable or inadequate, the decree-holder will proceed to sell the other shares details whereof are set out in the Schedule to the order of attachment dated 14th March, 1963 and take steps for realisation of the decretal amount in the decree mentioned in page 25 of the Paper Book. The attachment will continue. Liberty to apply. The decree-holder will add costs of this appeal to its claim. The appeal is disposed of accordingly". 4. On the 17th of August, 1965 the said application of the decree-holder for sale of the attached shares came up for hearing before A.N. Ray J., and the following order was passed:-- "Having regard to the Court of Appeal's order dated 3rd August, 1965, the petitioner does hot wish to proceed with the application. No order is made on this application except that the petitioner will pay the respondents the costs of this application. Certified for Counsel. This order is without prejudice to the rights and contentions of the parties including that of the question of limitation". 5. On the 22nd February, 1968, as mentioned hereinbefore, this application was moved by a Tabular Statement for execution of a decree in terms of the liberty given by the Court of Appeal on the 3rd of August. 1965, as mentioned hereinbefore. 6. Mr. A. K. Basu, learned counsel for the applicant decree-holder contends that his client is entitled to an order as prayed. He urges that in view of the payment made on the 20th of July, 1962, and in view of the provisions of Section 19 and Section 20 of the Limitation Act, 1908, his client's claim is within the period of limitation and his client is entitled to an order. Mr. Basu relies on the provisions of Arts. 182 and 183 of the Limitation Act, 1908. The learned counsel argues that in view of the Bench decision of this Court in Subodh Chandra Mitra v. Kanailal Mukherjee, , the provisions of the Limitation Act of 1963 would not stand in his way. Mr. Basu urges that against both the defendants, Mr. Jhajharia and Hind Textile Ltd., his client is entitled to the benefit of the payment made on the 20th July, 1962 and Mr. Basu has relied on the decision of Tugan Mull v. Ladhulal, AIR 1931 Pat 218; Arjee Prabappa Chetti v. K. Deshikchari, AIR 1925 Mad 1131 and the Bench decision in the case of Zeenutinessa Begum v. Nawab Syed Waris AH Mirza Saheb Bahadur, . 7. Mr. G. P. Kar, learned counsel for Shri Jhajharia, contends that the present application is barred by limitation. He argues that twelve years from the last payment expired in January, 1965. According to him, Article 183 read with Section 20 of the Limitation Act, 1908 saved the decree till January, 1965 and the said decree cannot be executed after January, 1965. He urges secondly that the Limitation Act, 1908 has been repealed by the Limitation Act, 1963. Article 136 of the Limitation Act of 1963 provides that the decree must be executed within twelve years from the passing of the said decree and part payment under the new Limitation Act does not save the decree for the purpose of limitation. He argues that the circumstances under which the payment was made on the 20th July, 1962 clearly established that it was an involuntary payment made pursuant to an order of this Court. Mr. Kar urges that payment of this type would not save limitation. He relies on the decision of Ramdas v. Kanshiram (1912) 14 Ind Cas 335 at p. 339 (Lah). 8. Mr. Sachindra Kumar Ray, learned counsel for the Hind Textile Ltd. adopts the argument of Mr. Kar. He further argues that whatever view the Court might take about the payment of Rupees 20,000 by Nanda Kishore Jhajharia on the 20th of July, 1962 that payment does not in any event save limitation as against Hind Textile Ltd. He relies on the decisions ; . 9. Before the rival contentions of the respective parties are considered, it is necessary to examine the circumstances under which payment was made on the 20th July, 1962 as mentioned hereinbefore. On the 20th of January, 1961 an application was made by the decree-holder under Order 21, Rule 41 of the Code of Civil Procedure for examination of Shri Jhajharia. It appears that Shri Jhajharia wanted time. Time was granted to him by A, N. Ray, J., upon certain conditions. His Lordship made the following order : "Upon the judgment-debtor's undertaking to Court through his counsel to pay to Mr. Basu's client, the sum of Rupees 20,000 by 4 p. m. today, the matter is adjourned till 17th August .1962. In default of payment as aforesaid within the time aforesaid, liberty to mention on 21st July, 1962 at my residence on previous appointment being obtained through the Court Officer. If the payment is made by cheque and the cheque is dishonoured, the same liberty to mention." 10. It appears that after that on 20th of July, 1962 Shri Nanda Kishore Jhajharia made payment of Rs. 20,000 to the plaintiff decree-holder. 11. The question that arises for consideration in this case is whether the payment made on the 20th of July, 1962, under the circumstances mentioned hereinbefore amounts to a payment which would save limitation in this case, 12. It appears from the order A. N. Ray. J., that the judgment-debtor gave an undertaking to the Court to pay Rs. 20,000. Pursuant to that undertaking the sum of Rs. 20,000 was paid. It has been urged that to be a payment under Article 183 of the Limitation Act 1908 it has to be a voluntary payment. It has further been argued that a payment made pursuant to an order of the Court is not such a payment as contemplated under Article 183 of the Limitation Act of 1908. I am unable to find such a restriction in the language of the Statute. It has to be a payment no doubt. It must not be so involuntary as to cease to be a payment and become "an exaction" to use the expression of White, J. In (1880) ILR 6 Cal 504 at p. 506. But beyond this there is no further requirement. In this connection it is important to bear in mind the difference in language between Section 20 and Article 183 of the Limitation Act of 1908. 13. In the decision in the case of AIR 1925 Mad 1131 (supra) the Division Bench of the Madras High Court has held that under Article 183 payment is not required to be made either by a debtor or some other person acting on his behalf for the purpose of saving limitation. Payment for judgment-debtor or to hie account is sufficient. Their Lordships of the Madras High Court considered the difference in language between Section 20- and Article 183 of the Limitation Act, 1908. In the case of AIR 1931 Pat 218 (supra) the Division Bench of the Patna High Court has held that provision of Article 183 regarding acknowledgments as well as payments are self-contained and must be read Independently of Ss. 19 and 20 of the Limitation Act. Their Lordships of the Patna High Court were of the opinion that the word payment" has been used in Article 183 in a wider sense than in Section 20. The expression "payment" in Article 183 is not qualified in any way as to the mode in which payment is to be made. Their Lordships further held that payment by one judgment-debtor would save limitation against other judgment-debtor. In the decision of R. C. Mitra, J., was considering Section 20 of the Limitation Act, 1908. His Lordship was not concerned with Article 183. Under Section 20, His Lordship held that payment by one debtor would not save the limitation against the other debtor unless the person making payment was authorised by the other debtor. The Division Bench of the Allahabad High Court in the case of Ram Kumar Pandey v. Hira Lal. was considering the provisions of Article 182 read with Section 20 of the Limitation Act of 1908. Their Lordships were of the opinion that the payment made by one judgment-debtor independently of the other judgment-debtor does not interrupt the running of the period of limitation as against the other nor can it operate to save limitation as against the other judgment-debtor. In the decision in the case of 1965 Cal 473 (supra), the Division Bench of this Court was not actually concerned with the issues involved in the present application. 14. Mr. Kar strongly relied on the decision in (1912) 14 Ind Cas 335 (Lah) (supra). There is an observation of Rattigan, J., that payment made in obedience to an order of the Court would not be a part payment for the purpose of Section 20. The decision however, had no occasion to consider the difference in the language between Article 183 and Section 20 of the Limitation Act of 1908. 15. In view of the language of Article 183 of the Limitation Act in contradistinction to the language of Section 20 I am of the opinion that a payment made even in pursuance to an order of the Court in the facts and circumstances of this case would save limitation. I am further of the opinion that payment for, or on account of the one of the joint-debtors would save limitation against other under Article 183 of the Limitation Act, 1908. In that view of the matter I am of the opinion that the payment made in this case on 20th of July, 1962 is a payment covered by Article 183 of the Limitation Act. 16. I am further of the opinion that the circumstances under which the payment was made in this case indicate that it was a voluntary payment. The Court did not direct a payment. It was only to get an adjournment of the examination of judgment-debtor that Shri Jhajharia undertook to make payment. He was quite free not to give that undertaking. Sree Jhajharia knew that payment made would go towards liquidation of the decretal dues. In these circumstances I am of the opinion that the payment of 20th July. 1962 was a voluntary payment. 17. The next point that requires consideration in this case is whether in view of the coming into operation of the new Limitation Act of 1963 the claim of the applicant has become barred. That point would have required serious consideration and in view of the language of Sections 30, 31. 32 and Article 136 of the Limitation Act of 1963 it is a matter of some doubt whether the applicant's claim has not become barred. But the principle which would guide a situation like this has been laid down in the Bench decision of this Court in the case of (supra) by which I am bound. On the authority of that decision I hold that the claim is not barred even after coming into operation of the new Limitation Act. 18. Further matter that requires consideration is whether the applicant is entitled to execute the decree against Nanda Kishore Jhajharia as well as the Hind Textile Ltd. I am of the opinion that in view of language of Article 183 the claim has not become barred as against Hind Textile Ltd. This is precisely the point which has been decided in the case of AIR 1931 Pat 218 (supra) and I respectfully agree with the principles laid down in the said decision. 19. Apart from the question of limitation no other point was urged before me in this application. In the premises there will be an order as prayed for in Column 10 of the Tabular Statement. The applicant is entitled to add the cost of this application to its claim. Certified for Counsel.

Author: S Mukharji

Punjab National Bank Ltd. vs Hind Textile Ltd. And Ors. on 16 September, 1968

Calcutta High Court

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 20.04.2010 CORAM: THE HON'BLE MR.JUSTICE B.RAJENDRAN W.P.No.37441 of 2006 K.Narayanaswamy ... Petitioner Versus 1. The Government of Tamil Nadu, Rep. by its Secretary, Agriculture (AA (II) Department), Fort St. George, Chennai  9. 2. The Director of Agriculture, Chepauk, Chennai  5. 3. The Director of Horty Culture & Plantation Crops, Chennai  2. ... Respondents PRAYER: This Writ Petition came to be numbered under Article 226 of the Constitution of India by way of transfer of O.A.No.9333 of 1998 from the file of Tamil Nadu Administrative Tribunal with a prayer to call for the records relating to the 1st respondent herein in G.O.(D) No.79, dated 29.07.1994 and quash the removal order and the consequential order passed in review in G.O.3(D) No.149 dated 19.11.1996 and re-instate the petitioner into service with all attendant and consequential benefits with due regards to his seniority. For Petitioner : Mr.R.S.Anand for M/s. Anand and Suriya For Respondents : Mrs. Lita Srinivasan Government Advocate O R D E R The Original Application has been filed by the petitioner seeking to call for the records relating to the 1st respondent herein in G.O.(D) No.79, dated 29.07.1994 and quash the removal order and the consequential order passed in review in G.O.3(D) No.149 dated 19.11.1996 and re-instate him into service with all attendant and consequential benefits with due regards to his seniority. On the abolition of the Tamil Nadu Administrative Tribunal, the Original Application stood transferred and renumbered as W.P.No.37441 of 2006. 2. The petitioner was originally appointed in the Agricultural Department. Subsequently, he was deputed to the Horticulture Department on deputation. While he was working in the Horticulture Department, certain allegation of misappropriation was alleged against the petitioner and consequently he was served with a Departmental Enquiry notice dated 27.02.1986 followed by a charge memo dated 05.06.1990 under Rule 17(b) of the CCA rules was issued by the 3rd respondent herein . The petitioner submitted his explanation denying the charges. Therefore, an enquiry officer was appointed, who, after conducting enquiry, held that the charges against the petitioner are proved. Based on the same, the Government passed an order of removal dated 29.06.1994. The petitioner has also filed an appeal on 28.09.1994 to the Government and the same was also dismissed on 19.11.1996. Challenging the aforesaid orders, the petitioner has filed the Original Application before the Tribunal on two grounds. The first ground was that the Commissioner of Tribunal for Disciplinary Proceedings held that the charge against the petitioner are proved and consequently, the Government by letter dated 12.11.1992 issued a show cause notice as to why the punishment of removal from service should not be imposed on the petitioner, even before communicating the report of the enquiry officer and it is against the amendment to Rule 10 of the Tribunal for disciplinary proceedings rules. Secondly, as per Rule 10, the final order has to be passed only by the Head of the Department. But the impugned order has been passed by the Government. Furthermore, he would specifically plead that even if the charge is proved, the charge relates to alleged misappropriation of fund amount of Rs.10/-, 20/- and thus total maximum amount of Rs.600/- for which without considering the past service of more than 21 years of service put in by the petitioner, the punishment of removal from service has been imposed which is shockingly disproportionate to the alleged charges. Therefore also, the punishment is liable to be reduced, taking into considering the long tenure of 21 years of service of unblemished record of service by the petitioner.. 3. The respondents have not filed any counter. The learned Government Advocate specifically pleaded that all fair opportunities were granted to the petitioner and the petitioner has participated in the enquiry and the report was duly submitted to the disciplinary authority. Furthermore, the petitioner was given copy of the report and then his further representation was sought. Ultimately the order was passed by the Government removing the petitioner from service. There is no impediment in the appointing authority passing the order based on the report after getting further explanation. Even though, the petitioner's contention that the appeal provision is last, already he filed the review application. Therefore, on that ground, it cannot be said that the entire proceedings are vitiated. Furthermore, the principles of natural justice have been followed in letter and spirit. As far as the punishment is concerned even though there was misappropriation of funds in the range of Rs.10/- totalling to the tune of Rs.660/-, yet the punishment is justified and prayed for dismissal of the writ petition. 4. Heard both parties. The only ground of attack was that the petitioner has put in more than 21 years and above service, therefore, the allegation of misappropriation of funds to the tune of Rs.10/-, 20/- totaling for a sum of Rs.600/- in respect of a Government function, even if it is found to be true, it does not warrant the punishment of removal from service. In this case, the charge against the petitioner was that he collected money from various departments towards the caution deposits and hire charges for lending potted plants etc., such as cost of G.I. Pipes, Flag, Flag posts and sale of Grass. According to the petitioner, there was a delay in remitting the amount in to the treasury and the delay has been construed as a wilful misappropriation of funds. Therefore, the petitioner would only plead that considering his long number of years of service, the appointing authority should have imposed punishment of compulsory retirement or other lesser punishment so that the petitioner would be entitled to get retirement benefits . Therefore, according to the petitioner, the punishment of removal from service for the alleged lapses is shockingly disproportionate and liable to be interfered with. 5. In this background, it will be useful to refer to the decision of the Honourable Supreme Court reported in (Union of India v. K.G. Soni) (2006) 6 SCC 794 it was held in Para Nos. 14 and 15 as follows:- 14. The common thread running through in all these decisions is that the court should not interfere with the administrators decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the court, in the sense that it was in defiance of logic or moral standards. In view of what has been stated in Wednesbury case the court would not go into the correctness of the choice made by the administrator open to him and the court should not substitute its decision to that of the administrator. The scope of judicial review is limited to the deficiency in the decision-making process and not the decision. 15. To put it differently, unless the punishment imposed by the disciplinary authority or the Appellate Authority shocks the conscience of the court/tribunal, there is no scope for interference. Further, to shorten litigations it may, in exceptional and rare cases, impose appropriate punishment by recording cogent reasons in support thereof. In the normal course if the punishment imposed is shockingly disproportionate, it would be appropriate to direct the disciplinary authority or the Appellate Authority to reconsider the penalty imposed. 6. In the above decision, it was categorically held by the Honourable Supreme Court that unless the punishment imposed is shocking to the conscience of the Courts, the Courts should not interfere with the punishment imposed by the administrators. In this case, the charges levelled against the petitoner relates to his failure to deposit the amount to the tune of Rs.660/- collected from various departments in time. The petitioner has rendered 21 years of service with the respondents department and by virtue of the impugned order of removal from service, he could not get any monetary benefits arising out of the 21 years of service rendered by him. Moreover, the charges levelled against the petitioner and the punishment imposed therefor are certainly shocking the conscience of this Court and therefore, I am inclined to reduce the punishment. As mentioned above, the charges leveled against the petitioner are in the nature of temporary non payment or non deposit of meager amount of Rs.10/- and 20/- collected over a period of 1 = years which has been explained by the petitioner in detail. Of course, the enquiry officer has given a finding that the charges are proved. Furthermore, the Government, instead of passing an order through Head of the department has passed the order of punishment by itself by which the petitioner has lost an appeal remedy. In any event, the punishment of removal from service is shockingly disproproportionate to the charges against the petitioner. Therefore, taking into consideration that the petitioner was aged about 51 years at the time of removal from service and he has already reached the age of superannuation, the punishment of removal from service is modified into one of compulsory retirement. 7. With the above modification in punishment, the writ petition is allowed. No costs. ogy/rsh To 1. The Secretary, Agriculture (AA (II) Department), Fort St. George, Chennai  9. 2. The Director of Agriculture, Chepauk, Chennai  5. 3. The Director of Horty Culture & Plantation Crops, Chennai 2

K.Narayanaswamy vs The Government Of Tamil Nadu on 20 April, 2010

Madras High Court

JUDGMENT P.K. Deb, J. (Chairperson) 1. This appeal has been preferred against the order dated 24th May, 2005 passed by the learned Presiding Officer, DRT, Jabalpur in O. A. No. 47/2002, whereby and whereunder the application made by the defendant-appellants on 25th April, 2005 seeking permission for cross-examination of the Bank witnesses has been rejected. 2. The respondent-Bank had filed the original application before the DRT. Jabalpur for recovery of Rs. 12,04,5567- against the defendant-appellants. On receipt of notice by the appellants they filed reply to the memo of appeal and raised various questions on limitation, legality of the mortgage and towards maintainability of the original application. They had also filed an application for considering the maintainability which was once decided in favour of the appellants but on appeal the said dismissal order of the original application was set aside by this Appellate Tribunal. Then the appellants filed the application for cross-examination of the witnesses of the Bank on the ground enumerated in their application itself. The first ground was that the loans granted to the appellants have been recalled by the Bank on 19th November, 1998 and the original application was filed in the month of February, 2002 and hence the original application is barred by limitation as not being filed within three years. According to the Bank there was acknowledgement of the dues by the appellant on later date, which have been denied by the appellants. The second point raised is that the defendant No. 2 had no capacity to give in mortgage of the property in favour of the Bank and as such there was no legal mortgage in favour of the Bank and to clarify those points cross-examination was very much necessary as alleged in the petition itself. The said application of the appellants has been vehemently objected to from the side of the respondent-Dena Bank, then the matter was heard in presence of both the parties and then by the impugned order the prayer of cross-examination has been rejected. 3. Before this Court Mr. V.D. Chauhan appearing for and on behalf of the appellants has argued strenuously that to clarify the points involved as raised from the side of the appellants, cross-examination is a must. He has also raised a point that after recalling of the loan account on 19th November, 1998 the account became NPA and as such it cannot carry agreed rate of interest henceforth. 4. Mr. R.L. Arora, appearing for and on behalf of the respondent-Bank submitted that the questions raised are legal questions and no question of fact, which requires cross-examination and as such rejection by the learned Tribunal is proper and justified. 5. In the light of the submissions made by the learned Counsel for both the parties and also on the principle of cross-examination as observed by the Apex Court in the Delhi Bar Association case, I find from the records that the questions involved as raised from the side of the appellant were pure questions of law. If after 19th November, 1998 no other acknowledgement is there and the O.A. was filed beyond the period of three years, then there might be bar coming under the Limitation Act (Article 36) regarding personal liability of the defendants, but the O.A. has been filed involving mortgage decree also. In that way, the period is 12 years. These are all questions of law and nothing is there to be clarified by cross-examination. So on this count rejection of prayer of cross-examination is proper and justified. 6. Regarding validity of the mortgage and capacity of the defendant No. 2 as raised from the side of the appellant is also a question of law. Whether the order of the District Judge is binding on defendant No. 2 regarding his capacitance/authority is purely a question of law and not a mixed question of fact and law. In that way also, rejection of prayer of cross-examination in this count is proper and justified. I do not find that the learned Tribunal has committed any error in rejecting the prayer of cross-examination rather the same is proper, legal and justified in the circumstances of the present case, 7. In the result, the appeal is rejected having no force. The stay order passed on 17.8.2005 is hereby recalled.

C.N. Enterprise vs Dena Bank on 18 January, 2006

Debt Recovery Appellate Tribunal - Allahabad

IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.6431 of 2010 UDGAR PASWAN S/o Late Ajo Paswan resident of village Mahabba Kalyanpur P.S. S. Kamal Dist. Begusarai Petitioner Versus STATE OF BIHAR Opp. Party ----------- shahid (Dinesh Kumar Singh,J)) 03/ 25.06.2010 Heard learned counsel for the petitioner and the State. The petitioner is languishing in jail since 3.6.2009 in a case registered under sections 302, 364, 120B and other allied sections of the Indian Penal Code as well as ¾ of the Anti Witch Craft Act. It is alleged in the FIR that altogether 16 persons came in the house of the informant and were making allegation against the mother of the informant of killing one Mukesh Paswan by witch craft and under that misconception 16 persons assaulted the mother of the informant It is submitted by learned counsel for the petitioner that similarly situated co-accused Jitendra Paswan has been granted bail vide Cr. Misc. no. 50367 of 2008 on 12.10.2009 as contained in annexure 2 and other similarly situated co-accused persons have also been granted bail. Learned counsel for the State submits that the petitioner is named in the first information report. Considering the omnibus and general allegation against 16 to 18 persons and grant of bail to similarly situated co-accused persons, let the petitioner be released on bail in connection with Sahebpur Kamal P.S. Case no. 70 of 2008 on furnishing bail bond of Rs 10,000-/ with two sureties of the like amount each to the satisfaction of the Sub divisional Judicial Magistrate, Begusarai.

Udgar Paswan vs State Of Bihar on 25 June, 2010

Patna High Court - Orders

IN THE HIGH COURT OF KERALA AT ERNAKULAM Con.Case(C).No. 737 of 2009(S) 1. K.RAGHAVAN, SORTING ASSISTANT (RETIRED), ... Petitioner Vs 1. SMT.SHOBHA KOSHY, ... Respondent For Petitioner :SRI.K.T.SHYAMKUMAR For Respondent :SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR The Hon'ble the Chief Justice MR.S.R.BANNURMATH The Hon'ble MR. Justice A.K.BASHEER Dated :26/08/2009 O R D E R S.R. Bannurmath, C.J. & A.K. Basheer, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Contempt Case (Civil) No. 737 OF 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 26th day of August, 2009 JUDGMENT Basheer, J. Learned counsel for the petitioner submits that since respondents have complied with the directions contained in the interim orders, the petitioner does not intend to pursue the matter any further. Hence the Contempt Case is closed. S.R. Bannurmath, Chief Justice. A.K. Basheer, Judge. ttb  WA No. -:2:-

K.Raghavan vs Smt.Shobha Koshy on 26 August, 2009

Kerala High Court

Gujarat High Court Case Information System Print CR.MA/358120/2008 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 3581 of 2008 In CRIMINAL APPEAL No. 1753 of 2004 ========================================== MAHESHBHAI VITTHALBHAI KAMBLI PATEL - Applicant(s) Versus STATE OF GUJARAT & 1 - Respondent(s) ==========================================Appearance : MS JAYSHREE C BHATT for the Applicant MR MG NANAVATI, ADDL PUBLIC PROSECUTOR for the Respondents ========================================== CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE BANKIM.N.MEHTA Date : 11/11/2008 ORAL ORDER(Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) The learned counsel for the applicant seeks permission to withdraw the application. Permission is granted. The application is disposed of as withdrawn. (BHAGWATI PRASAD, J.) (BANKIM N. MEHTA, J.) omkar     Top

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

Maheshbhai vs State on 11 November, 2008

Gujarat High Court

JUDGMENT Jagannadha Rao, J. 1. This writ appeal is preferred against the judgment in Writ Petition No. 7293 of 1982 in which the learned Judge allowed the writ petition. The respondent in the writ petition has therefore come up in appeal. 2. The writ petitioner, respondent before us, was selected and appointed as a Medical Officer by the appellant on 18th September, 1980. According to the terms of the order of appointment the respondent was to be on probation for a period of one year and during that period his services were terminable by one month's notice on either side. If he was confirmed he would be required to enter into an agreement to serve the appellant company for a period of five years from the date of such confirmation and the company reserved its right to terminate the contract by giving a notice of three months or three months pay in lieu of notice without assigning any reasons. On 30th October, 1981, the Personal Officer of the appellant company addressed a letter of the Superintendent, Area Hospital, Bellampalli where the respondent was actually working. In that letter the Personal Officer proposed the confirmation of the respondent and also required the respondent to make the necessary arrangements for entering into the agreement contemplated by the order of appointment. The respondent had stated in his affidavit filed in this Court that he had purchased the necessary stamp papers and submitted the same to the authorities on 15th November, 1981, and that nothing more was required to be done on the spot. The respondent then received the impugned order dated 4th October, 1982, terminating his service. The order reads as follows : "It is regretted that your services are no longer required by the Company. Your services stand terminated on and from 8th October, 1982. 2. You will be relieved of your post on 8th October, 1982 by paying you three months salary in lieu of notice, as required under para 4 of your appointment order No. C/1998, dated 18th September, 1980. 3. Controller of Accounts (F & A), B.P.A. is being advised to settle your accounts with the Company. Sd/-          For Chairman and  Managing Director." The respondent filed the writ petition on 11th October, 1982, for the issue of a writ of certiorari quashing the order of termination, dated 4th October, 1982. 4. In the writ petition the respondent contended that his services were terminated by way of punishment without giving him a reasonable opportunity and that therefore the impugned order was violative of principals of natural justice and also of rule 11 of the Conduct and Disciplinary Rules of the Company which provided for an opportunity to be given to the employee. 5. The appellant filed a counter-affidavit and supported the order of termination, dated 4th October, 1982. It stated that the respondent had not become a permanent employee of the appellant Company in as much as the agreement stipulated in the order of appointment was not executed between the parties. It was also stated that the conduct of the respondent during his service was not satisfactory, that he became a drug addict and had been indulging in activities which were common in drug addicts, that he used to take pethidrine injections and other sedatives, that on 29th June, 1982 he attempted to commit suicide and was therefore admitted into Bellampalli Hospital at 10-45 p.m. as an in-patient, that a case was also registered in the hospital as MLC 374 and that he was treated as an inpatient. It was further averred - "In view of the above behaviour it was found that continuance of the petitioner in service is absolutely not desirable and was felt to prove dangerous to the patients attending the hospital and thus unfit to continue as Doctor and therefore his services were terminated on 4th October, 1982. It was by way of abundant caution, three months salary was paid in lieu of notice even though that was not required." The appellant also took out a plea that the appellant was a Company and was not amenable to the writ jurisdiction of this Court but the said plea was not pressed before out learned brother. 6. The writ petition was allowed on two grounds. The first was that the order of termination was in the nature of a punishment inasmuch as the allegations mentioned in the counter-affidavit were the foundation and not the motive for termination of the services of the respondent. For that purpose the learned Judge placed reliance on the averments made in the counter-affidavit, which according to him, clearly show that the order was in the nature of punishment for which a disciplinary enquiry should have been made in accordance with the rules by following principles of natural justice. The second ground on which the writ petition was allowed was that the three months salary stipulated in the terms of appointment should have been paid to the respondent simultaneously with the service of the order of termination on 4th October, 1982 but that such a course was not adopted by the appellant who had only stated that three months salary would be paid in lieu of notice. According to the learned judge the non-payment of the three months salary along with the order of termination was an illegality resulting in the termination order becoming ineffective in the eye of law. 7. In this appeal the learned Counsel for the appellant Company Sri N. Ramamohana Rao has canvassed the correctness of the conclusion of the learned Judge on both the grounds. It is firstly contended that the order dated 4th October, 1982 was an order of termination simpliciter which did not cast any stigma on the respondent and that it was not permissible for the Court to go into the circumstances under which the order was issued. It was further contended that the facts mentioned in the counter-affidavit might be the motive for termination but it was not the foundation for it. At any rate it was not permissible to relay on the allegations made in the counter-affidavit, according to the appellant. On the second ground it was contended that paragraph 4 of the order of appointment permitted termination by issuing the three months notice or by paying three months salary in lieu of notice and that the language of the clause gave the option to the employer to follow either of these courses and that on a proper construction of the clause the three months salary was not payable simultaneously with the service of the order of termination. 8. In this appeal therefore the first question that arises for consideration would be : whether the order of termination amounted to a punishment thereby resulting in breach of principles of natural justice or of rule 11 of the Rules relating to conduct of disciplinary proceedings. 9. Our learned brothers has, on a consideration of the facts and attendant circumstances of the case, come to the conclusion that the order of termination is in the nature of punishment and that the respondent ought to have been given a reasonable opportunity in respect of the allegations which were set out in the counter-affidavit and which were the foundation for the impugned orders. After examining the entire circumstances and facts leading upto the order of termination, we are of the opinion that the learned Judge has come to the correct conclusion. Paragraph 8 of the counter-affidavit which has been filed in the case on behalf of the appellant sets out in detail that the appellant received reports that the respondent was a drug addict and sets out various allegations relating to his drug addition. It then states that in view of the said behaviour it was found that the continuance of the respondent in service was absolutely undesirable and that therefore his services were terminated on 4th October, 1982. 10. It is now well-settled that there is no rigid formula that one has only to look to the order of termination. The form of the order is not conclusive of its true nature. The order might merely be a cloak or commonflag for an order founded on misconduct. It may be that an order is innocuous on its face or does not contain any impugnation of misconduct. But the entirety of the circumstances proceeding or attended on the impugned order must be examined and the over-riding test will be whether the misconduct is a mere motive or is the very foundation of the order. (See State of Bihar v. Shiva Bhikshuk Mishra [1970-II L.L.J. 440]. 11. It is however contended for the appellant that their Lordships of the Supreme Court have held different in State of U.P. v. Ram Chandra Trivedi [1977-I L.L.J. 200]. In the last mentioned case the officer was a temporary clerk and it was alleged that when a typewriting test was conducted, the officer allowed another person to impersonate for him. The explanations of both the officers were called for and were not satisfactory. Thereafter orders of termination were issued to both the officers. The respondent before their Lordships was one of them and he filed a writ suit challenging the order of termination. The trial Court and the first appellate Court found that the order was not by way of punishment but the High Court interfered with the concurrent findings of fact and decreed the suit. While holding that the High Court ought not to have interfered, in second appeal, with the concurrent finding of fact, their Lordships referred to the case in State of Bihar v. Shiv Bhikshuk Misra (supra) in para. 15 and the principles laid down therein were stated. Further in paragraph 9 it was observed by His Lordship Jaswant Singh, J. [1977-I L.L.J. 200] at 205 : "But the mere fact that the servant has no title to the post or the rank and the Government has, by contract, express or implied, or under the rules, the right to reduce him to a lower post, does not mean that an order of reduction of a Government Servant to a lower Post or rant cannot in any circumstances be a punishment." At Page 2554-2555 the learned Judge referred to the judgment of the seven Judges of the Supreme Court in Shamsher Singh v. State of Punjab [1974-II L.L.J. 465] and considered the statement of law made by Ray, C.J., in that case included the following passenger : "An order terminating the service of a temporary servant or probationer under the rules of employment and without anything more will not attract Art. 311. Where a department enquiry is contemplated and if an enquiry is not in fact proceeded with Art. 311 will not be attracted unless it can bee shown that the order though unexceptionable inform is made following a report based on misconduct." We may point out that at the end of the above passage Ray, C.J., has in fact categorically referred to the judgment in State of Bihar v. Shiva Bhikshuk Mishra (supra). Further in the immediately preceding paragraph 66 at page 480 in Shamsher Singh's case (supra), Ray, C.J., made another observations as follows :- "If the fact and circumstances of the case indicate that the substance of the order is that the termination is by way of punishment then a probationers is entitled to attract Art. 311. The substance of the order and not the form would be decisive. (See K. H. Phadnis v. State of Maharashtra (A.I.R. 1917 S.C. 998)." and again at para. 80 at page 483, Ray, C.J., observed as follows in Shamsher Singh's case : "The form of the order is not decisive as to whether the order is by way of punishment. Even an innocuously worded order terminating the service may in the facts and circumstances of the case establish that an enquiry into allegations of serious and grave character of misconduct involving stigma has been made in infraction of the provisions of Art. 311. In such a case the simplicity of the form of the order will not give any sanctity. That is exactly what has happened in the case of Ishwar Chand Agarwal. The order of termination is illegal and must be set aside." and again in para 86 at page 484 : "In the facts and circumstances of this case it is clear that the order of termination of the appellant Samsher Singh was one of punishment." 12. The above extract by Jaswant Singh, J., to the passage in Shamsher Singh's case (supra), and the other passage which we have now referred to would clearly show that the judgment of seven Judges in Shamsher Singh's case (supra) clearly held that the form of the order was not decisive. 13. The decisions in State of Bihar v. Shiv Bhikshuk Mishra (supra) and in State of U.P. v. Ram Chandra Trivedi (supra) were both considered in State of U.P. v. Bhoop Singh . In the last mentioned case, the facts were that after the allegations into misconduct of the respondent therein with Smt. Phoolmati were made, he was allowed increments, but later his services were terminated. The Bench consisted of their Lordships Jaswant Singh, R. S. Pathak and A. P. Sen, JJ. Speaking for the Court, Pathak, J., observed : "The case law on the point has been considered elaborately by one of us (Jaswant Singh, J.) in State of U.P. v. Ram Chandra Trivedi (supra). In this connection what has been stated by this Court in State of Bihar v. Shiva Bhikshuk Mishra (supra), appears relevant. That it was not intended to take punitive action against the respondent for his misbehaviour with Smt. Phoolmati is evident from the circumstances that thereafter the respondent was allowed an increment to his salary and was regarded as in service for all purposes. The High Court, it seems to us, did not have regard to all the circumstances of the case." The case in State of Uttar Pradesh v. Ram Chandra Trivedi (supra), was again referred to by their Lordships in the recent case in State of Maharashtra v. Saboji AIR 1980 SC 42, and Pathak, J. stated in paras 18, 19 : "There may still be another kind of case where although the termination of services is intended by way of punishment, the order is framed as a termination simpliciter. In a given case, the Government servant may succeed in making out a prima facie case that the order was by way of punishment. It is in such a case generally that the official records may be called for by the Court. .... What I say here in no way detracts from what this Court has laid down in State of Uttar Pradesh v. Ram Chandra Trivedi .... I am unable to spell out from the judgment any absolute rule enunciated by this Court that where terminating the services of a temporary or a probationed Government servant is ex facie an order of termination simpliciter, the Government servant is barred from establishing that it is in fact an order by way of punishment ......" Therefore, we are unable to hold that there has been any absolute rule enunciated in the case in State of Uttar Pradesh v. Ram Chandra (supra), which has to be construed as laying down anything contrary to what was laid down in State of Bihar v. Shiva Bhikshuk Mishra (supra). There being no absolute rule, one way or the other, the matter ultimately turns upon the facts and circumstances attendant and proceedings the action in each case. 14. In fact after the judgment in State of Uttar Pradesh v. Ram Chandra Trivedi (supra), of Jaswant Singh, J., the Supreme Court in The Manager, Government Branch Press v. Belliappa [1979-I L.L.J. 156], and in Nepal Singh v. State of Uttar Pradesh , reiterated the principle enuciated in State of Bihar v. Shiva Bhikshuk Mishra (supra), that the form of the order is not decisive. 15. For all the above reasons we are unable to agree with the contention of the learned Counsel for the appellant that the decision in State of Bihar v. Shiva Bhikshuk Mishra (supra), must be deemed to have been disapproved in State of Uttar Pradesh v. Ram Chandra Trivedi (supra). 16. As already observed, the counter-affidavit in this case makes it more than clear that the satisfaction of the authority as to the conduct of the officer was the cause for the impugned order. Considering the attendant circumstances, it is clear that the impugned order was in the nature of punishment and that without observing principles of natural justice, it should not have been passed. 17. It is then contended for the appellant that the conduct of the respondent was the motive for the impugned order and cannot be treated as the foundation. 18. The question whether misconduct of an officer is the motive for an order of termination or the foundation has been considered by the Supreme Court. 19. In Shamsher Singh's case (supra), Ray, C.J., pointed out (at page 479 para 62), that if the misconduct is the motive, it would merely adhere in the mind of the employer but will not be discernible. On the other hand, if the termination is founded on misconduct it is objective and is manifest. The above observations were further explained by a Division Bench of our High Court in Vice-Chancellor, Andhra University v. Venkata Ratnam (1976) 2 An. W.R. 231, consisting of Sambasiva Rao, J. (as he then was) and Jayachandra Reddi, J. It was observed that motive is something subjective and is not discernible. But where it is the basis or foundation, it is objective and discernible and therefore, manifest. Motive, it was stated, would become the foundation when it leaves the mental attitude of its author and gets an objective existence. The motive is a motive so long as it remains dormant in the mental abode of its author but assumes the form of a foundation when it is spelt out in an objective shape or physical form either as part of an order or a note in a Government file. 20. The distinction between a motive and a foundation came up for consideration before the Supreme Court again in Gujarat Tubes Limited v. Its Mazdoor Sabha [1980-I L.L.J. 137]. At page 54 & 55 of the report, Krishna Iyer, J., held that when the master is 'satisfied' of the misconduct and of the consequent desirability of terminating the service of the delinquent servant, it is a dismissal, even if the order is innocuous. On the contrary, when the employer only suspects the misconduct but does not make an effort to go into his guilt but only feels like not keeping a man with whom he is not happy, and with respect to whom he does not like to make an inquiry, there is only a motive - a subjective feeling in the mind. All that he thinks is that he should not continue a dubious servant. In that case it is not a dismissal but termination simpliciter. 21. Applying the above principles to the facts of this case, it is seen that, in the present case, the employer's conclusion was not a mere subjective attitude of mind. The termination order was issued after being satisfied about the respondent's misconduct. The appellant clearly stated that it was 'satisfied' that the respondent 'become' a drug addict and that the various even showed that the respondent 'was addicted' to pethidrine. It was also noted by the employer that the respondent was heavily indebted and that his 'act of serious misconduct' was not conductive to his working as a medical officer. On top of this, it was stated in the counter-affidavit, that assuming that the disciplinary and conduct rules applied, the respondent had an effective and alternative remedy by way of appeal. 22. On these facts stated in the counter-affidavit which are based on the record of the case, we have no doubt in our minds, that the impugned order was not passed by keeping the respondent's conduct in mind as a mere motive. We are of the opinion that the authorities passed the impugned order not by mere subjective opinion in their mind but by an objective assessment of the facts and after being satisfied that the respondent was guilty of misconduct. The satisfaction is vitiated on account of its having been arrived at without giving an opportunity to the respondent by following the discipline and conduct regulations. 23. But it is contended for the appellant that the learned Judge was not, for that purpose, justified in relying upon the counter-affidavit filed by the appellant. 24. We are of the opinion that this contention of the appellant cannot be accepted. In Debesh Chandra v. Union of India , their Lordships of the Supreme Court observed : "If any doubt remained, it is cleared by the affidavit which is now filed." Similarly, in N. Yellaiah Swamy v. Director of Industries and Commerce (1971) 2 An. W.R. 183, a Division Bench of this Court consisting of Gopal Rao Ekbote, J. (as he then was) and Ramachandra Raju, J., pointed out : "The subject indicated in this impugned order and the counter filed by the respondent themselves point to the same conclusion." We, therefor, do no consider that our learned brother should have ignored the statement made on behalf of the appellant on oath. The appellant cannot deny that the counter-affidavit is not based on the record. Nor is it its case that the same was based on mistake. If the record could, in a given case, be relied upon, there can be no absolute rule that the counter-affidavit should as a rule be ignored. 25. The judgment of the Bombay High Court in Vitalrao Ramachandra Ghorpade v. State of Maharashtra (1973) 1 Serv. L.R. 255, relied upon by the appellant of the proposition that the counter-affidavit cannot be relied upon has, in our opinion, no relevance. That case related to a case of compulsory retirement where, it was incumbent upon the competent authority, to show that there was material or record to which the authority applied its mind for deciding whether the officer could be compulsorily retired. In fact, if in such cases, there was no material for passing an order of compulsory retirement, the order would be vulnerable on that ground alone. Further judgment in para 8 does not contain any such proposition as it stated in the head-note. We do not consider this case as an authority for the proposition contended for. 26. We, therefore, agree with the reasoning of the learned Judge that the order in the present case was in substance one in the nature of punishment and that the learned Judge was right in allowing the writ petition. 27. This above point was sufficient to allow the writ petition. But the learned Judge has held that the petition was liable to be allowed on another ground also. He opined that the salary of three months payable to the respondent in lieu of notice should have been paid simultaneously with the service of the order. We are of the view that for the purpose of this case it is not necessary for us to go into this question. 28. The appellant relies on the judgment of the Supreme Court in State of Uttar Pradesh v. Dinanath Rai (1969) 2 S.C.W.R. 92, to say that the salary need not be paid simultaneously with the service of the order. The respondent relies on Senior Superintendent v. K. V. Gopinath , where the above ruling was distinguished. It is further submitted for the respondent that Gopinath's case, was followed in Rajkumar v. Union of India . The learned single Judge followed the last two case and also the judgment of Punnayya, J., in J. N. Sarkary v. Zonal Manager (1978) 1 Serv. L.R. 471 (A.P.). 29. We are of the view that it is not necessary in this case to consider these ruling or to go into the question whether the payment of salary is to be simultaneous with the service of the order of termination. As we are against the appellant on the first point, we refrain from expressing our opinion on this question. 30. In the result the appeal fails and is dismissed both in the circumstances of the case without costs.

Author: J Rao

Singareni Collieries Co. Ltd. vs Raghuram on 6 September, 1983

Andhra High Court

CENTRAL INFORMATION COMMISSION Club Building, Opposite Ber Sarai Market, Old JNU Campus, New Delhi - 110067. Tel: +91-11-26161796 Decision No.CIC/SG/A/2009/001589/4456 Appeal No. CIC/SG/A/2009/001589 Appellant : Mr. Peeyush Jain WZ/596 & WZ603B, Palam Vilage, New Delhi-110045. Respondent : Public Information Officer Office of the Joint Director (R) S/SW, Delhi Jal Board, Govt. of NCT of Delhi, Jal Sadan, Lajpat Nagar, New Delhi. RTI application filed on : 26/02/2009 PIO replied : 23/03/2009 First Appeal filed on : 20/04/2009 First Appellate Authority order : Not mentioned Second Appeal Received on : 30/06/2009 Information sought: S.No Information Sought PIO's Reply i. If there are two connections in the Water connection against which payment name of a consumer in the same is not being made by the consumer may premises but as the bill of water be disconnected by the Delhi Jal Board charges goes on increasing day by after following the prescribed procedure. day due to non payment of the bill out pays the bill of other connection which is smaller amount but does not pay the bill of other connection then what shall DJB do in respect of the non paid connection? ii. What shall DJB do in respect of the Water connection against which payment paid connection? Shall it disconnect is being made regularly by the consumer non paid connection or both? is not liable to be disconnected by the Delhi Jal Board. iii. If a consumer is using a connection If water bill is not paid by the consumer but does not make the payment then during any billing cycle irrespective of on how much amount of bill which.. billing amount involved then DJB is free DJB connection? What is its to disconnect the water connection after procedure? the last date for receipt of payment. Warning in this regard is also printed on the water bill issued to the consumer. iv. If a consumer dies bit oat DJB Bill Demand notice will be issued to the then what is the process to recover consumer for recovering the outstanding that bill amount? dues. If a person liable to pay any dues to the Board does not, within 30 days from the service of the notice demand, pay the amount due, such sum together with all costs and the penalty under Section 82 of Delhi Jal Board Act shall be recoverable under a warrant, issued in the prescribed form, by distress an sale of the movable property, or the attachment and sale of the immovable property. v. Has DJB been adopting this DJB is free to adopt the above procedure procedure in all cases? in all comparable cases. There has been no such case in Najafgarh Zone so far. vi. In case of above when the charges Unpaid water connection will be bill of only one connection out of disconnected. the two in paid & other not will DJB disconnect only one connection or both the connections as per rules of DJB? vii. What is a duplicate ...? How is it Duplicate demand is a double demand is raised? As you call it duplicate, who a double demand for the same WC which is it removed? may be raised erroneously while making entries in the computer system. It can be rectified by sending necessary communication to computer cell of DJB. 8. (a) If someone has got a water Yes. connection in his name then (a)Requisite mutation request for the in order to get a new water connection P-169 has not been connection in his name in acceded to by the higher authorities. the same premises whether Communication in this regard has he will have give all the already been sent to the applicant on property documents again to 09/03/2009 by the ZRO (SW)I prove his ownership as in case of getting a new connection for the first time? (b) How many times that file of b to k: -Application may please inspect mutation has come to the file in question to get the reply of all Najafgarh zone? How many queries put forth vide para b) to k) in this times it has been sent to application in the PIO office after fixing different officials & on the prior appointment on his telephone which dates from one officer No. 011-29819668 to the other. please reply in the following format : From To other when back Najafgarh Officer to Zone with with Najafgarh date date with date (c) For how many days it remained with all above officer? (d) What action did each officer take on it? (e) What are the comments of each officer? (f) For what purpose the fill has been sent to different officers? (g) Where is Appellant's file at present? (h) As per your reply dated 31/10/2008 and also as per rules maintain is to be done in 15 days but in Appellant's case how much time has passed? Why so delay? (i) You stated in reply in I. D. 3278 that Appellant's file will be got inspected by Appellant or shown to Appellant for whether file has not been received from law office by you at all? (j) I file received by you from law office then why Appellant was not intimated for inspection and also copies to be delivered? (k) Was it not your duty? Grounds for First Appeal: Till date reply had not been received by the Appellant. Order of the First Appellate Authority: Not mentioned Grounds for Second Appeal: 1. Incomplete reply was given by PIO. 2. No reply of FAA 3. Appellant alleged that reply of question no.8 had not been given till date. Relevant Facts emerging during Hearing: The following were present Appellant: Mr. RC Jain, authorized representative (father of Appellant) Respondent: Mr. VP Tanwar, then PIO The PIO has given the information to the Appellant though a lot of queries are not seeking information as defined under Section 2(f) of the RTI Act. The Appellant appears to be wanting a certain mutation to be done for which the public authority has refused permission and records regarding this have been given to the Appellant. The Appellant feels that the public authority is unjustifiably denying the mutation but for this he would have to go to some other forum. Decision: The appeal is dismissed. The information has been given to the Appellant. This decision is announced in open chamber. Notice of this decision be given free of cost to the parties. Any information in compliance with this Order will be provided free of cost as per Section 7(6) of RTI Act. Shailesh Gandhi Information Commissioner 17 August 2009 (In any correspondence on this decision, mention the complete decision number.)Rnj

Mr. Peeyush Jain vs Delhi Jal Board on 17 August, 2009

Central Information Commission

Court No. - 10 Case :- CONTEMPT APPLICATION (CIVIL) No. - 177 of 2010 Petitioner :- Radha Ballabh Sharma Respondent :- Sri Arun Kumar Sinha, Principal Secy. Dept. Of Rev. & Anr Petitioner Counsel :- P.S. Verma Hon'ble Vikram Nath,J. It is alleged that the order dated 28.11.2008 passed by this court has been violated. From a perusal of the petition, a prima facie case is made out. Issue notice to opposite parties fixing 4.3.2010. The opposite parties need not appear at this stage. The counter affidavit may be filed within the aforesaid period or else charges may be framed after summoning the noticee. However, one more opportunity is granted to the opposite parties to comply with the order within a month. The office may send a copy of this order along with the notice. Order Date :- 18.1.2010 RPS

Radha Ballabh Sharma vs Sri Arun Kumar Sinha, Principal ... on 18 January, 2010

Allahabad High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C) No. 3097 of 2008(R) 1. RAYIFA, KUNNUMPURATH VEEDU, ... Petitioner Vs 1. MANAGER, UNION BANK OF INDIA, ... Respondent 2. AUTHORISED OFFICER, For Petitioner :SRI.M.R.SASITH For Respondent : No Appearance The Hon'ble MR. Justice ANTONY DOMINIC Dated :25/01/2008 O R D E R ANTONY DOMINIC, J. ------------------------------------ W.P.(C) 3097 of 2008 ------------------------------------- Dated: January 25, 2008 JUDGMENT The challenge is against the securitization proceedings initiated against the petitioner. The proceedings have reached the stage of sale. The last date now indicated for receipt of tender is 31.1.2008 and the tenders are scheduled to be opened on 1.2.2008. Petitioner offers to clear the entire amount in default along with interest and costs of securitization proceedings by 30.1.2008 and requests that she be permitted to pay off the balance loan in instalments as originally scheduled. 2. The standing counsel for the bank also has been heard and the bank does not have objection in this course suggested by the petitioner. 3. Therefore this writ petition is disposed of directing that if the petitioner remits the entire amount now in default along with interest and costs on or before 30.1.2008, the tenders received in response to Ext.P2 notice will not be opened by the bank. If the  WP(C) 3097/08 Page numbers petitioner makes payment as above, the bank will also permit the petitioner to continue payment as originally scheduled. It is made clear that in case the petitioner commits default in paying the amount in default as above or the future instalments, the bank will be free to continue the action which was initiated without any further notice. ANTONY DOMINIC, JUDGE mt/-

Rayifa vs Manager on 25 January, 2008

Kerala High Court

[Complete Act]

Central Government Act

IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.35308 of 2010 Md.Anwar Versus State Of Bihar ----------- AI ( Mandhata Singh, J.) 7 24.8.2011 Husband is not present. Wife is present. Advocates appearing on their behalf are present. As jointly prayed for, list this case on 12.9.2011 in Chamber at 4.15 PM, on which date both husband and wife shall be physically present. Meanwhile interim protection granted to the petitioner by order dated 16.11.2010 shall continue.

Md.Anwar vs State Of Bihar on 24 August, 2011

Patna High Court - Orders

JUDGMENT S.N. Phukan, J. 1. An application under Section 13 of the Hindu Marriage Act, for short the Act, was filed by the husband Khanindra Chandra Das against his wife Smt. Kusum Das before the learned District Judge, Kamrup at Guwahati. By the impugned judgment and other the petition was dismissed and hence this appeal. 2. Both the parties are Hindu by religion and were married on 24-2-1974 according to Hindu rites and they lived together till 2-3-1983. Out of their lawful wedlock one daughter and one son were born on 29-10-76 and 17-11-80 respectively. According to petitioner both of them were maintaining good relationship including with other members of the family. The wife was attending Knitting classes in the afternoon and on 2-3-1983 she went to attend the said school, but did not return home. The husband made attempts to locate his wife. She was not found at the residence of her father which is situated within Guwahati city. All of them got worried and both the fathers of the husband and the wife lodged a missing report before the Officer-in-charge of Chandmari Police Station on 9-3-83. During this period of absence of the wife the son was taken seriously ill and he was admitted to the Gauhati Medical College Hospital and subsequently taken to Delhi for better treatment. Petitioner alleged that after about 9/10 months from 2-3-1983 he came to know that his wife was residing at the house of her parents. He made attempts to bring her home through friend and well wishers, but she refused to come. Hence, the petition was filed for decree for divorce on the ground of desertion. 3. Petition has been resisted by the wife and she has pleaded cruelty, ill-treatement, both mental and physical. According to her she continued to bear oppression and ill-treatment for the sake of her minor children. But on 2-3-1983 her husband and his parents inflicted untold mental torture by scolding her and driving her out from the house keeping the minorchildren with them. Thereafter, she went to reside with her uncle Haladhar Das who was examined as D.W. 1 and who was residing at Dumani Bazar in Barpeta District. According to her she did not go to her father's house as she thought that this would give unbearable shock to him who was suffering from high-blood pressure. She has denied desertion as alleged by her husband. 4. The learned trial Court on the basis of pleadings framed the following issues : (1) Whether the divorce petition is maintainable? (2) Whether there is cause of action for the divorce petition? (3) Whether the respondent has permanently deserted the petitioner for a continuous period of not less than 2 years. (4) Whether petitioner is entitled to get a decree for divorce? (5) To what other reliefs petitioner is entitled to? 5. The learned trial Court tried to make a settlement between the parties, but it failed. The Court also granted interim maintenance @ Rs. 200/- per month and Rs. 750/- towards cost of the suit under the provisions of Section 24 of the Act. 6. As this is a matrimonial dispute this Court by order dated 31-3-89 directed that the matter may be placed before the Hon'ble Chairman, High Court Legal Aid Committee for amicable settlement. From the note dated 23-5-89 it appears that although attempts were made, husband did not agree to withdraw his petition, though the wife expressed her eagerness to go back. Before the Hon'ble Chairman, she also prayed for custody of her two children. 7. On 12-4-1989, before this Court the husband filed an application for modification of the order of granting interim maintenance allowance @ Rs.200/- per month on the ground that his wife is working as Junior Account Assistant at Dispur Treasury from 2-1-1989 in the pay-scale of Rs. 500/- to Rs. 875/- and her present total emolument is Rs. 1295/-, whereas the husband is drawing Rs. 1400/- per month after necessary deductions. I shall dispose of this petition by this judgment and order. 8. A marriage may be dissolved on the ground stated in Section 13 of the Act and desertion may be a ground for such divorce as provided in Clause (ib) of Sub-section (1) of Section 13 of the Act which runs as follows : "(ib) has deserted the petitioner for a continuous period of not less than 2 years immediately preceding the presentation of the petition; or" In the explanation to Section 13, which was inserted by Hindu Marrige (Amendment) Act, 1964 the word "desertion" has been defined and it runs as follows: "Explanation-- In this sub-Section, the expression "desertion" means desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly." 9. In support of the petition, petitioner has examined himself as P.W. 1, his friend one Dhirendra Kumar Hazarika as P.W. 2, one neighbour viz. Pranab Kumar Boara, P.W. 3, his father Ram Pada Das, P.W. 4 and police officer, P.W. 5 who has deposed only to prove the missing entry in the General Diary recorded on 9-3-83. The respondent viz. the opposite party has examined herself as D.W. 2, her uncle Haldhar's Das to whose house she went from the house of her husband as D.W. 1 and her father Damodar Das, D.W. 3. 10. The main issue for the purpose of present dispute is issue No. 3 i.e. whether there is dese.rtion on the part of respondent. The learned trial Court considered the law and also decisions of various High Courts regarding essential conditions of desertion. The learned trial Court took into consideration the allegation and counter-allegation of alleged desertion and alleged mental torture and ill-treatment of the respondent and laid emphasis on the question of reason behind leaving the matrimonial home suddenly ater long 9 years by the respondent. According to the learned trial Court the husband could not explain the reason. Regarding ill-treatment the leraned trial Court also took into consideration the evidence adduced on behalf of respondent. There is no dispute that there was no physical torture on the respondent and the only allegation was that in-laws of the respondent used abusive language such as "go and die in the river Brahmaputra; tie yourself by tying your neck with a hanging rope; we do not like a mad girl like you; we shall marry another girl for the boy". After scrutinising the evidence on record, the learned trial Court was of the view that merely from the missing entry recorded in the General Diary it would not establish desertion by the wife and that the evidence did not disclose such desertion. The learned trial Court recorded that the evidence shows that there has been some misunderstanding and ill-feeling between the in-laws and respondent for quite some time. Exs. 1 and 2 are two letters written by the respondent. The learend trial Court held that these two letters did not prove the intention of the respondent for leaving the matrimonial home permanently. P.W. 2 is a friend of both the parties and he deposed that respondent informed him that she was not willing to go back to the house of her husband. But this piece of evidence was rejected by the learned trial Court. According to learned trial Court simply because the respondent left the house of the petitioner it would not constitute the offence of desertion. 11. I have heard Mr. K. Sarma, learned counsel for the appellant and Mr. C. K. S. Baruah, learned counsel for the respondent. 12. Mr. Baruah, learned counsel for the respondent has urged that desertion means the intentional permanent forsaking and abandoning of one's spouse by the other without that other's consent and without reasonable cause. In support Mr. Baruah has placed before me Halsbury's Laws of England, 3rd Edition, Vol. 12 page 214. On the other hand Mr. Sarma, learned counsel for the appellant has urged that in view of the explanation to Sub-section (1) of Section 13 of the Act which was inserted by the Hindu Marriage (Amendment) Act, 1964 and which came into force on 20-12-1964, this Court need not travel beyond the said explanation to find out the meaning of 'desertion'. The said explanation has been quoted in para 8. 13. The legal position for getting a divorce on the ground of desertion as provided in Sub-section (1) of Section 13 of the Act may be stated as follows : (a) the petitioner has to prove that the other party has deserted him for a continuous period of not less than 2 years immediately preceding the presentation of the petition for divorce; and (b) petitioner has further to prove that the other party without reasonable cause and without the consent or against the wish of the petitioner has deserted him and it includes also willful neglect of the petitioner. 14. In the case in hand I need not consider the question of willful neglect of the petitioner as there is no such allegation. The fact that the respondent left the house of her husband on 2-3-1983 against the wish of the petitioner is not disputed. So, I have to consider whether the respondent left the matrimonial home without reasonable cause and without the consent of the petitioner. 15. Regarding reasonable cause the respondent has alleged that she was ill-treated by her in-laws by using abusive and filthy language. The respondent in her deposition before the trial Court stated that on a particular day her husband assaulted her, but she was saved by the brother-in-law of the petitioner. Except this statement of the respondent there is no other allegation of physical assault or torture of the respondent. But her statement is not supported by other witnesses. So, this part of the statement I find it difficult to believe. In fact, her father D.W. 2 also did not state before the Court that the petitioner assaulted the respondent. There is no statement in the written statement that ill-treatment of the petitioner was due to insufficient dowry. But in course of evidence the respondent and her witnesses tried to make out a new case that use of abusive language was also due to insufficient dowry. I find it difficult to believe and in my opinion, this is only an afterthough. 16. Respondent has cited 3 or 4 instances regarding mental torture. On occasion she was abused when she lost one gold ring given to her by her in-laws for going to attend a marriage ceremony. If a gold ring is lost it is quite natural to use harsh words. On another occasion, she broke a plate and she was ill-treated by her in-laws and on another occasion she failed to light the lamp in the place of worship of the house for which she was rebuked. She was further stated that when her father visited her house he was ill-treated by her in-laws. But this is not supported by her father. On the other hand, I find that she was allowed to continue her studies at the expense of her husband and in-laws and she also appeared in examination. She was also allowed to join the Knitting School. Thus from the instances given by the respondent I am not at all inclined to accept the fact that her mental torture was to such an extent that she had to leave the house. 17. According to the petitioner, on 2-3-1983 as usual, the respondent went to attend the knitting school. But as she did not return they all got upset, went to the house of the father of the respondent and tried to locate the respondent. According to respondent, on the above date she was driven out from her house. From the conduct of the petitioner and his parents I find it difficult to accept the story that the respondent was driven out from her house, otherwise the petitioner or his father would not have gone to the house of the father of the respondent. Respondent has stated that after she was driven out, instead of going to the house of her parents she went to her uncle's house which is away from Guwahati. In cross-examination she has stated that after marriage she never visited the house of her uncle D.W. 1. She has tried to explain for not going to the house of her father as he was suffering from high blood pressure. On the other hand when this fact was reported to her father he took part to find out whereabout of the respondent. So, the explanation of the respondent for not going to the house of her father is not at all acceptable. 18. It is on record that her son was ill and admitted to the Gauhati Medical College Hospital and her parents also visited the hospital, but the respondent did not go. She is trying to explain that she was not present on that date and next date when she went there she came to know that the son was shifted to Delhi. This behaviour of the respondent is very peculiar, more particularly when her son was seriously ill. 19. The respondent has stated that her father went to the house of the petitioner for negotiation so that respondent could be taken back. But her father has stated that he went to the house along-with the respondent, but the petitioner and her parents refused to accept the respondent. This vital contradiction leads me to believe that neither the respondent nor her father went to the house of the petitioner for negotiation and this part of the story has been subsequently added. P. W. 2 is a friend of the petitioner. He has stated that as per instruction of the petitioner he went to the house of the respondent and asked her whether she was agreeable to resume her conjugal life by going to petitioner's house. But from her conversation it was found that she was not agreeable and this fact was reported to the petitioner. He again met the respondent on the road and she expressed again that she did not want to go to the house of the petitioner. That this witness went to the house of the respondent is admitted by the respondent and her father. But they have stated that they requested him to persuade the petitioner to accept the respondent. An attempt has been made to show that this witness has deposed falsely, inasmuch as, he is working in the same office of the petitioner. This in my opinion is not a ground to discard his evidence, more so, the respondent and her father also requested this witness to try for a settlement. 20. Exs. 1 and 2 are two letters written by the respondent. Reading these two letters closely, I am constrained hold that the respondent made up her mind to leave the house of the petitioner permanently. 21. Situated thus, I am of the opinion that petitioner has been able to prove that the respondent without any reasonable cause and without the consent or against the wish of the petitioner deserted the petitioner continuously from 2-3-1983. Thus, petitioner has been able to make out a case for divorce under Section 13 of the Act. 22. Regarding the prayer of the petitioner to modify the interim maintenance allowance @ Rs. 200/- per month I am of the opinion that this requires further examination regarding the present income of the parties. For this purpose the learned District Judge is the appropriate authority and petitioner is at liberty to file a petition before the said Court for modification of the interim maintenance allowance. 23. Learned counsel for the respondent has urged that in the event decree for divorce is passed by this Court, appropriate orders may be passed regarding custody of the children in favour of the respondent, I find that when she went to meet her daughter in the school she was not allowed to do so by the school authority on the instruction from the petitioner. This matter also has to be decided by the learned trial Court and if necessary by examining the children in camera. However, as an interim measure I direct that the petitioner shall allow respondent to meet the children and spent some time at least once in a month for the present until orders are passed by the learned District Judge. For this purpose the respondent may file a proper petition before the learned District Judge, Gauhati. 24. In the result, appeal is allowed by setting aside the impugned judgment and decree. Decree for divorce as prayed for by the petitioner is hereby granted. Parties to bear their own costs.

Author: S Phukan

Khanindra Chandra Das vs Smt. Kusum Das on 21 May, 1990

Gauhati High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.13697 of 2005 B.K.SINGHAL Versus STATE OF BIHAR & ANR ----------- BKS/ (M. Saran,J.) 6 4-7-2008 Heard learned counsel for the petitioner, learned counsel for the State and learned counsel for O. P. no.2. This application has been filed for quashing the FIR of Sasaram Town PS case no. 467/2004 dated 7.10.2004 u/ss 406, 420 and 120B of the Penal Code registered against the petitioner on the basis of a copy of complaint petition of complaint case no. 775/2004 sent by the court. Counter affidavit has filed today on behalf of O. P. no.2 in which it has been mentioned that police after investigation has submitted final report in the case holding the dispute between the parties to be of civil in nature. It has further been mentioned that O. P. no.2 has filed a protest petition before the Chief Judicial Magistrate which is pending for consideration. In the aforesaid facts and circumstances, now there is no merit in the application and the same is, accordingly, dismissed. However, petitioner will be entitled to challenge any order which is passed against him.

B.K.Singhal vs State Of Bihar &Amp; Anr on 4 July, 2008

Patna High Court - Orders

ORDER 1. Two questions arise in this Notice of Motion - firstly, whether in view of S. 8(I)(c) of the Textile Undertakings (Taking Over of Management) Act , 1983, hereinafter referred to as "the Act ", where a textile company owns more than one textile undertaking, out of which the management of one of the undertakings vests in the Central Government, while the other undertaking/undertakings are not so vested, a receiver can be appointed in a suit filed by a creditor, in respect of the undertaking/undertakings not so vested? Secondly, whether in a suit for enforcement of an equitable mortgage, receiver cannot be appointed on the ground that the mortgagee has no right to possession of the property so mortgaged? 2. Now, to the first question; S.(*) (I) and (2) of the Act , which are relevant, are as follows. "8.(I) So long as the management of the textile undertaking of a textile company remains vested in the Central Government under This Act notwithstanding anything contained in the Companies Act , 1956 or in the memorandum or articles of association of such company- (a) it shall not be lawful for the shareholders of the textile company or nay other person to nominate or appoint any person to be Director of such textile company in relation to such undertaking; (b) no resolution affecting (whether directly or indirectly) such undertaking which is passed at any meeting of the shareholders of the textile company on or after the appointed day shall be given effect to unless approved by the Central Government. (c) No proceeding for the winding up of the textile company or for the appointment of a liquidator or receiver in respect thereof shall lie in any court except with the consent of the Central Government. (2) Subject to the provisions contained in sub-sec, (I),and to the other provisions contained in this Act and subject to such other exceptions, restrictions and limitation if any, as the Central Government may by notification, specify in this behalf, the companies Act , 1956, shall continue to apply to the textile companies in the same manner as it applied thereto before the appointed day". We are mainly concerned with S. 8(I)(c) of the Act . 3. It is an admitted position that the 1st defendant company owns tow undertakings - one in Bombay and the other at Jaipur. As regards the undertaking in Bombay in concerned, the same vests in the Central Government owns an undertaking at Jaipur too, which is not vested in the Central Government. The plaintiff's application for appointment of a receiver relates to this undertaking at Jaipur. 4. Undoubtedly, the Act makes a distinction between a textile company and a textile undertaking. There is no dispute about this dichotomy. Section 8(I) of the Act itself indicates the distinction between the two. Similarly, the plain words of the said provision do not suggest any restraint on appointment of a receiver in respect of an which is not vested in the Central Government. It is also logical to think that the Central Government's consent is respect of an undertaking which is taken over by the Government. A reasonable interpretation of S. 8(I) of the Act is that so long as the management of a textile company remains vested in the Central Government, the following three things shall not be done; (a) No Director shall be appointed in relation to such an undertaking by the shareholders or by any other person; (b) no effect to any resolution affecting such undertaking shall be given unless approved by the Central Government; (c) no winding up of the company shall be proceeded with excepting with the sanction o the Central Government. Therefore, there cannot be any appointment of a liquidator or a receiver in any such proceedings. 5. Mr. Aspy Chinoi appearing for the 1st defendant submits that the Act contemplates, continuance of the company, while the management of its undertaking might vest in the Government. He further submits that the Act , in fact, gives protection to the Company, notwithstanding anything contained in the companies Act and the articles of association. He interprets the words "receiver in respect thereof" appearing in s. 8(I)(c) of the Act to mean, receiver in respect of the Company and/or its assets, and he says that no receiver shall be appointed in any proceedings, except with the consent of the Central Government. His argument is that since the Company as a whole cannot be wound up, appointment of a receiver in respect of a part of the assets, as in the present case, the Jaipur undertaking, together with the undertakings taken over by the Government is as good as winding up of the Company itself, which is contrary to the Act . he further contended that the use of the word "receiver" indicates proceedings other than winding up, as under the company law, there is no mention of "receiver" at all. 6. The last of his submissions cannot stand scrutiny at all, as the Court in any proceedings for winding up has got powers to pass such interim orders as it thinks fit. (S.443of the Companies Act , 1956). This must necessarily include appointment of a receiver. Even otherwise, under S. 448 of the Companies Act , there is an express mention of "official receiver" attached to a District Court for insolvency purposes, who shall be the Official Liquidator attached to that Court. What is prohibited under S. 8(I)(c) of the Act is the proceedings for the winding up of the Company, which would naturally include the appointment of a Liquidator or Receiver in respect thereof. The words "in respect thereof" must necessarily mean "proceedings for winding up". Assuming that I am wrong in this, it should necessarily mean appointment of a receiver of the assets of a Company in the proceedings for the winding up of the Company. Certainly the words do not convey that a receiver cannot be appointed in respect of any assets of a Company in the proceedings for the winding up of the Company. Certainly the words do not convey that a receiver cannot be appointed in respect of any asset of the company, in any proceedings other than that of the winding up of a Company. This is made clear when one refers to sub. S (2) of S. 8 of the Act , which expressly says that subject to the restrictions as contained in sub-s. (I) of S. 8 of the Act , the provisions of the Companies Act . 1956 shall continue to be applicable. That circumscribes the ambit of S. 8(I) of the Act as such. 7. Significantly the Act nowhere provides for liquidation or diminution of the liabilities of the Textile Company. Similarly there are no constrains as against a creditor to file a suit or to obtain a decree or even to execute a decree as against the Textile Company and any of its assets. The Act confers no general moratorium against erring companies. It is a temporary measure, brought in, in the wake of a prolonged strike in the textile industry in Bombay in the year 1982. The object was to reorganise and rehabilitate the undertakings, and "thereby to protect the interests of the workmen employed therein and to augment the production and idstribution at fair prices of different varieties of cloth and yarn so as to subserve the interests of the general public". This shows that the object of the law is to see that the Central Government would invest large sums of money, take over the management of such undertakings and finally rehabilitate the undertakings. The object is not to liquidate the Textile companies. The fetters are as against the liquidation of the Companies. Therefore, when a receiver is appointed in respect of Jaipur undertaking, it cannot follow that thereby the company would be wound up. The management of the Bombay undertaking is taken over not for the purpose of winding, up, but for the purpose of reviving and injecting life into them. 8. This takes me to the second question. Relying on O.40, R.1, sub-r.(2) of the Civil P.C., Mr. Chinoi submitted that that this being a case of an equitable mortgage and since the mortgagee has not right to be in possession, no receiver can be appointed in this suit. He also submitted that in any event, there are no allegations of waste and, therefore, in equity no relief or receiver can be given to the plaintiffs. He further submitted that he has no objection if the Court gives any direction for the purpose of taking inventory and even for inspection of the same from time to time. He has also no objection if the Court grants an injunction retraining the defendants from disposing of the property. He further pointed out the Court, in fact, had passed an order for the purpose of making an inventory on 6-2-1987 and the Court Receiver took an inventory after nearly about six months of the order. He therefore, submitted that since the matter is being pursued with no due diligence on the part of the plaintiffs, no relief of receiver should be granted. 9. Mr Chinoi drew my attention, particularly, to a case of Sri Raja Papamma Rao v. Sri Vira Pratapa H. V. Ramachandra Razu, reported in (1896) ILR 19 Mad 249 (PC). He submitted that a simple mortgage gives to the mortgagee a right, not to possess but to a judicial sale, which he must work out in execution. In that case, the District Judge while passing a money decree stipulated that if the decretal amount was not paid within three months, the plaintiff, the mortgagee would be put in possession of the property. This, of course, was not proper. The Privy Council observed that the legal effect was that thereupon the mortgagee became mortgagee in possession and it was open to the mortgagor to redeem the property. This case, in my view, does not deal with the question whether a receiver could be appointed or not during the pendency of he suit, either for foreclosure or for redemption. Mr. Chnoi also drew my attention to one or two other cases for the purpose of contending that O. 40, R. 1, sub-r. (2) of the Civil P.C., would apply to all the parties to the suit, and, it the plaintiff has to present right to possession a receiver cannot be appointed. This contention has been expressly negatived in a Division Bench's case of the Bombay High Court, which is cited by Mr. Diwan. That is the case of Damodar v. Radhabai, reported in AIR 1989 Bombay 1939 Bom 54, and the relevant portion is as follows; 10. "It seems to me that the meaning and effect of this sub-rule is perfectly plain. It is an enactment for the benefit of third parties and means that the wide words of sub-r.(I) are not to be construed to justify the Court in removing from possession or custody of property a third party who has got a good title to such possession or custody as against the parties to the suit. The words "whom any party to the suit has not a present right so to remove" merely mean whom no party to the suit has a right so to remove. The provision seems to be ex abundanti cautela because it could hardly be suggested that is would be just to remove from possession of property a person who has a good right to such possession as against the parties before the Court". in fact, my attention has been drawn to an observation of a Division Bench (Coram; Desai and Parekh, JJ). In Appeal NO. 860 of 1986 IN Notice of Motion NO. 759 of 1985 In Suit No. 1806 of 1984, M/s Gupta Engineering Co. (India) v. State Bank of India , decided on January 6, 1987, to the effect that the Court Receiver is the usual order in a mortgage suit. 11. Therefore, neither on authority nor on principle, can it be said that the Court ahs no powers to appoint receiver under O. 40, R.1 of the Civil P.C. in a pending mortgage suit, if the other requirements of the law viz, that it should be just and convenient to appoint a receiver, having regard to the facts and circumstances of each case, are satisfied. 12. In the present case, my attention has been drawn to the fact that the Jaipur undertaking has not been functioning since long and even after the Bombay undertaking was taken over the plaintiffs sanctioned further loans to the 1st defendants and the defendants have not been able to come out of their financial crisis. It has also been pointed out that the machinery is getting deteriorated everyday and, therefore, in a sense there is a jeopardy as regards the security is concerned. Mr. Diwan, also pointed out that as far as moveables are concerned, every deed of hypothecation, being Exhibits W. 28, W-34, W-38, W-39 and also W-23, contain provisions to the effect that if the loan is not repaid, the Bank has the right to take possession of the articles hypothecated. 13. In these circumstances, there is no reason as to why I should not appoint Court Receiver as receiver of the Jaipur undertaking. 14. I, therefore, pass the following order; ORDER 15. Motion made absolute in terms of prayer (a) of the Notice of Motion. As regards the machinery, fittings, fixtures, including the immoveable property, in the Jaipur undertaking is concerned liberty to the Court Receiver to appoint the 1st defendants as the agents of the Court Receiver on such terms and conditions as the Court Receiver thinks proper. However, if the 1st defendants are not willing and/or are not in a position to accept the terms and conditions for being appointed as agents of the Court receiver, Court Receiver will then have the liberty to have the said machines and moveables sold and the net sale proceeds so realised be kept with the Court Receiver until further orders. 16. There will also be an order of injunction in terms of prayer (b) of the Notice of Motion. Costs of the motion to be costs in the cause. 17. At this stage, Mr. Chinoi applies that the operation of the above order may be stayed for a period of four weeks from today. Mr. Thakkar opposes the application. 18. P.C. order stayed for a period of three weeks form today. 19. Mr. Thakkar for the plaintiffs pointed out that an Advocate from Jaipur could be appointed as a receiver. Mr. Chinoi has objected to the same. I am not inclined to accept this request of the learned Advocate for the plaintiffs. 20. Order accordingly.

State Bank Of India vs The Podar Mills Ltd. And Ors. on 7 March, 1988

Bombay High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 32733 of 2010(N) 1. P.R.BALAKRISHNAN, AGED 60 YEARS, ... Petitioner 2. B.SANKAR, Vs 1. STATE OF KERALA, ... Respondent 2. THE DEPUTY SECRETARY (L.S.G.), 3. CORPORATION OF COCHIN, 4. SENIOR TOWN PLANNER, 5. P.R.JAGADEESH, For Petitioner :SRI.G.S.REGHUNATH For Respondent :SRI.M.NARENDRA KUMAR The Hon'ble MR. Justice ANTONY DOMINIC Dated :26/11/2010 O R D E R ANTONY DOMINIC, J. ``````````````````````````````````````````````````````` W.P.(C) No. 32733 of 2010 N ``````````````````````````````````````````````````````` Dated this the 26th day of November, 2010 J U D G M E N T Petitioners challenge Ext.P9, an order passed by the first respondent rejecting an application made for regularisation of an unauthorised construction. 2. The application was in relation to a building, a portion of which belongs to the fifth respondent. A reading of Ext.P9 order shows that the main reason for rejecting the application was that it was made in the name of Sri.P.N.Ramakrishna Rao, the father of the first petitioner and the fifth respondent. It is stated that, long prior to the application, Sri. P.N.Ramakrishna Rao had expired on 16-07- 1997 and on that ground, it has been held that the application is a fraudulent one. 3. Although the petitioners do have several justifications for making the application in the name of their deceased father, still fact remains that the father had expired  W.P.(C) No.32733/2010 : 2 : prior to the submission of the application. If that be so, the rejection of the application as per Ext.P9 cannot be faulted. 4. Be that as it may, in law, if a person is eligible to make an application for regularisation of an unauthorised construction, now the petitioners are also co-owners of the building, they are also eligible to make a fresh application. 5. Therefore, leaving it open to the petitioners or any of them to make a fresh application seeking regularisation of the construction, and directing that, if such an application is made in compliance with the statutory requirements, the same shall be considered on merits, this writ petition is disposed of. It is made clear that this Court have not expressed anything on the merits of the contentions either of the petitioners or that of the fifth respondent. Sd/- (ANTONY DOMINIC, JUDGE) aks // True Copy // P.A. To Judge 

P.R.Balakrishnan vs State Of Kerala on 26 November, 2010

Kerala High Court

Gujarat High Court Case Information System Print FA/582/1993 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 582 of 1993 With FIRST APPEAL No. 583 of 1993 ========================================================= STATE OF GUJARAT - Appellant(s) Versus KODERBHAI NADHABHAI PATEL & 4 - Defendant(s) ========================================================= Appearance : MR NEERAJ SONI, ASST. GOVERNMENT PLEADER for Appellant(s) : 1, NOTICE SERVED for Defendant(s) : 1 - 2. ========================================================= CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 23/11/2010 ORAL ORDER The amount in question in these appeals is less than Rs.25,000/-. It has been the consistent practice of this Court not to enter into the merits of those appeals wherein the claim in appeal is less than Rs.25,000/-. Hence, these appeals are dismissed on the ground that it represents petty claim. No order as to costs. (K.S. Jhaveri, J.) Caroline     Top

Author: Ks Jhaveri,&Nbsp;

State vs Koderbhai on 23 November, 2010

Gujarat High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 16384 of 2008(A) 1. JILLA CHUMAATTU THOZHILALI CONGRESS ... Petitioner 2. R.FRANCIS,UNIT CONVENER, JILLA CHUMAATTU Vs 1. DISTRICT LABOUR OFFICER, ... Respondent 2. ASSISTANT LABOUR OFFICER, NEYYATTINKARA. 3. RAJU, CONVENER (CITU), PONKIL MELE UNIT, 4. SUKUMARAN NAIR, CONVENER (CITU), PONKIL 5. PAUL RAJU, CONVENOR (BMS), PONKIL MELE For Petitioner :SRI.BLAZE K.JOSE For Respondent : No Appearance The Hon'ble MR. Justice S.SIRI JAGAN Dated :03/06/2008 O R D E R S.SIRI JAGAN, J = = = = = = = = = = = = = = = = W.P.(C).No. 16384 OF 2008 = = = = = = = = = = = = = Dated this the 3rd day of June, 2008. J U D G M E N T The petitioner is aggrieved by Ext.P4 order of the Assistant Labour Officer issued under Section 21 of the Kerala Head Load Workers Act. Petitioner has already filed Ext.P5 appeal before the Appellate Authority. The petitioner seeks expeditious disposal of the same. 2. I have heard the learned Government Pleader also. 3. In the facts and circumstances of the case, I dispose of this writ petition with a direction to the 1st respondent to consider and pass orders on Ext.P5 as expeditiously as possible at any rate within two months from the date of receipt of a copy of this judgment, after affording an opportunity of being heard to all concerned including the petitioner. The petitioner shall forward a certified copy of this judgment along with copy of the writ petition to the 1st respondent for compliance. S.SIRI JAGAN, JUDGE bkn/-

Jilla Chumaattu Thozhilali ... vs District Labour Officer on 3 June, 2008

Kerala High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 35050 of 2008(S) 1. SHAMNAD, AGED 33 YEARS, ... Petitioner Vs 1. HAZEENA, AGED 29 YEARS, ... Respondent For Petitioner :SRI.S.GOPAKUMARAN NAIR (SR.) For Respondent :SRI.RAM MOHAN.G. The Hon'ble MR. Justice P.R.RAMAN The Hon'ble MR. Justice P.S.GOPINATHAN Dated :02/03/2009 O R D E R P.R.Raman & P.S.Gopinathan, JJ. ================================== WP(C)No.35050 of 2008 ================================== Dated this the 2nd day of March, 2009. JUDGMENT sl. P.S.Gopinathan, Judge.  Raman, J. This is a matter where an interim order was passed by the Family Court directing the petitioner to pay maintenance at the rate of Rs.800/- per month. Though the petitioner has got a contention that the respondent has got sufficient means and he is employed, that is yet to be proved by him. However, having due regard to the nature of the order passed, we do not find any reason to interfere with the proceedings now pending before the Family Court. It is to be noted that the petition filed by the respondent herein under the Protection of Women from Domestic Violence Act, 2005 itself was disposed of directing the petitioner herein to pay at the rate of Rs.800/- per month. In the circumstances, we do not think  WPC35050/08 -:2:- it appropriate to interfere with the quantum fixed by way of interim measure as per the order passed by the Family Court. We direct that maintenance by way of interim arrangement will be paid by the petitioner at the rate of Rs.800/- in all per month. Writ petition, subject to the direction as aforesaid, is dismissed. Since the main O.P. is pending before the Family Court regarding maintenance, it shall be disposed of expeditiously giving due credit to the order passed under the Domestic Violence Act. P.R.Raman, Judge.

Shamnad vs Hazeena on 2 March, 2009

Kerala High Court

MCRC No.4096/2010 11.08.2010 Shri Raman Patel, Advocate for the applicant. Smt. Sushila Paliwal, Public Prosecutor for the respondent/State. Heard both the parties. Case diary of Crime No.27/2010 registered at Police Station Bhesabad District Damoh for the offence punishable under Sections 294, 506, 329, 323 of IPC is perused. The applicant is apprehending his arrest in the aforesaid crime. Learned counsel for the applicant submits that the applicant is a reputed citizen of the locality, who has no criminal past. The applicant and the complainant are known to each other and there is no possibility of demanding any money for consuming liquor. The overt-act as alleged against the present applicant at the most comes under the category of Section 325 of IPC, which is bailable. The police with the connivance of the complainant has made grave case alleging the ingredients of Section 329 of IPC, whereas there is no such allegation against the applicant, therefore, he prays for anticipatory bail. Learned Public Prosecutor for the State opposes the application. Keeping in view the submissions made by learned counsel for the parties and the facts and circumstances of the case, I am of the view that this is a fit case for grant anticipatory bail to the applicant. Consequently, this application under Section 438, Cr.P.C. is hereby allowed. It is directed that in the event of arrest, applicant Jaggi Sikhaiya Kurmi shall be released on bail on furnishing a personal bond in the sum of Rs.25,000/- (Rupees twenty five thousand) with a solvent surety in the like amount to the satisfaction of the Arresting Authority. The applicant shall further abide by the conditions enumerated in sub-Section (2) of Section 438 of Cr.P.C. This order shall remain in force for a period of 30 days and in the meanwhile, if the applicant so desires, may move an application for regular bail before the competent Court. C.C. as per rules. (N.K.Gupta) Judge Ansari.

Jaggi Sikhaiya Kurmi vs The State Of Madhya Pradesh on 11 August, 2010

Madhya Pradesh High Court

JUDGMENT K. Ramaswamy, J. 1. Leave granted. 2. This bunch of 22 appeals and one writ petition raise the traditional tangle of inter-se seniority between the India Police Service Direct Recruits and U.P. State Police Service, Special Grade Deputy Superintendents of Police for short 'Promotees'. It is not necessary to detail myriad facts in all the appeals but shortly stated the facts in Civil Appeal No. 823 of 1989 are sufficient to decide the controversy by a common judgment. The appellants were direct recruits of the years 1970 and 1973 into Indian Police Service and were allotted to U.P. cadre. The respondents Nos. 3 to 9, Trivedi Kumar Joshi & Others were appointed as Deputy Superintendents of Police between July 12, 1961 to July 7, 1963 in substantive capacity in State Service and were promoted between October 4, 1973 to June 2, 1975 to perform the duties of the cadre posts of Superintendents of Police, continued to occupy the said posts till they were included in the select list (Respondent No. 3 in 1977, Respondents Nos. 4 to 9 in 1978) and were latter appointed and confirmed in the Indian Police Service w.e.f. various dates between July 29, 1978 to December 6, 1980. 3. When the inter-se seniority list was prepared and published on April 24, 1977 showing the respondents as juniors to the appellants, they represented to the Govt. of India that since they had continuously officiated on the cadre posts without break from the respective dates of promotion, their entire continuous officiating period should be counted towards seniority in Indian Police Service. They requested to redetermine their seniority giving them years of allotment from the respective dates of continuous officiation dating back to 1968, 1969 and 1970 to respondents Nos. 3, 4, 5, 6 and 7 to 9 respectively. The State Govt. rejected their claim in 1980. Preceding thereto some of their senior promotees filed writ petition Nos. 4490-4499/80 and 5128-29/80 in this Court questioning the validity of Rule 3 (3)(b) and 2(g) of I.P.S. (Regulation of Seniority Rules, 1954) for short 'Seniority Rules' and Regulation 5 of I.P.S. (Appointment by Promotion) Regulation 1955 for short the 'Promotion Regulations' claiming the same relief. A Bench of three Judges of this Court directed the Central Govt. to determine the year of allotment of each of the respondents in accordance with Rule 3(1) of the Seniority Rules and also the question as to whether they were entitled to the benefit of continuous officiation of the posts of Superintendent of Police under Rule 3(3)(b) of the Seniority Rules in the light of the decisions in Union of India v. G.N. Tiwari [1985] Suppl. 3 SCR 747, Narendra Chadha and Ors. v. Union of India and Ors. and other decisions interpreting the analogous provisions of the All India Services Act, 1951 and the relevant rules and regulations framed thereunder. After giving sufficient opportunity to the promotees and the direct recruits and considering the material, the Central. Govt. by Order dated July 1, 1986 fixed the seniority and had given them 1968, 1970 and 1972 as years of allotment respectively the details thereof do not bear relevance for disposal of the appeals. Challenging the correctness thereof Bhupinder Singh and Others filed O.A. No. 583/86 in the Central Administrative Tribunal at Allahabad. When it came up before a bench of two members, the judicial member held that by operation of Explanation 1 to Rule 3(3)(b) of the Seniority Rules, the promotees are entitled to get seniority from the date of inclusion of their names in the select list. The officiation period has to be counted only from that date. The year of allotment under Rule 3(1) read with Rule 3(3)(b) of the Seniority Rules should be drawn accordingly bringing on notional list for 1971, 1975 and 1976. The administrative member held that by conduct, the Central Govt. must be deemed to have relaxed the requirement of Explanation 1 to Rule 3(3)(b) of the Seniority Rules as the State Govt. did not prepare the select list for the years 1971, 1975 and 1976 and by non action the rule regulating seniority had been broken down and accordingly directed to prepare the seniority list, counting their continuous officiation from the date of their initial promotions. On reference, the Vice-Chairman agreed with the administrative member and accordingly directed the Govt. of India to prepare the seniority list afresh. This is the subject matter in C.A. No. 1382/87 and Union of India filed C.A.No. 1383/87. The Central Govt., however, considered afresh and fixed seniority again on April 24, 1987 showing them as juniors to the appellants, which was impugned in O.A. No. 676/87 and was allowed. Civil Appeal No. 823/89 arises against it. Union of India filed C.A.No. 1801/89. Following that order in the main judgment dated December 12, 1988 in O.A. No. 583 of 1986, the C.A.T. at Allahabad practically reiterated the same view and directed the Central Govt. in all other cases to prepare the seniority list afresh whether they officiated either in the cadre posts or ex-cadre posts. Thus all the appeals are before us by special leave. 4. The admitted facts are that the promotees held their substantive posts as Deputy Superintendents of Police of the U.P. Police Service. They were not included in the select list. Though the State Govt. initially appointed them as Superintendents of Police, obviously for a period of 3 months, they continued to officiate in cadre posts uninterruptedly. Though the direct recruits contended that the posting of the promotees to the cadre posts was the result of the manipulation at the behest of the State level officers, assuming, without deciding for the purpose of this case, that the promotees were posted to discharge the duties of the cadre posts when the direct recruits went on deputation in excess of the quota and that there existed dearth of the direct recruits or the suitable officers from the select list to hold the cadre posts. Their promotion to officiate in the cadre posts was by local or ad-hoc arrangement. The record does not bear out that the State Govt. had sent any reports to the Central Govt. from time to time with reasons therefor, nor obtained prior concurrence from Central Govt. to promote the non-select list officers to officiate on the cadre posts. Admittedly the Union Public Service Commission was not consulted when the promotees continued to officiate in the cadre posts for one year and more. There is no express order passed by the Central Govt. under Rule 3 of the Residuary Rules relaxing Rule 3(3)(b) of Seniority Rules and Regulation 5 of Promotion Regulations. 5. These facts and diverse contentions of the counsel on either side would give rise to the following questions : (i) whether the promotees have been appointed to I.P.S. according to Rules? (ii) whether their continuous officiation in cadre posts would enure to their seniority entitling to the year of allotment from the dates of their initial promotions; (iii) whether their inclusion in the select list and the computation of seniority from that date are conditions of service; and (iv) whether the facts would justify to draw the presumption of deemed relaxation of relevant rules by Rule 3 of the Residuary Rules? 6. The recruitment rules provide the method of recruitment to the Indian Police Service. Rule 2(aa) defines 'direct recruitment' means a person appointed to the service after recruitment under Clause (a) of Sub-rule (1) of Rule 4; Rule 2(d) defines 'service' means the Indian Police Service; Rule 2(g) defines 'State Police Service' means - in all other cases, the principal police service of a State, a member of which normally holds charge of a sub-division of a district for purposes of police administration etc....Similar definitions were given in all the rules and it is not necessary to repeat them once over. Rule 3 provides Constitution of the I.P. Service; Rule 3(1)(a) and 3(1)(b) are not necessary, hence omitted; Rule 3(1)(c) provides that persons recruited to the Service in accordance with the provisions of these rules are members of the service. Rule 4(1) postulates that recruitment to the service, after the commencement of these rules, shall be by the following methods, namely, (a) by competitive examination; the details are not relevant and (b) by promotion of substantive members of a State Police Service. Sub-rules 2, 3 and 4 are not relevant, hence omitted. Rule 5 prescribes the disqualification for appointment which is not material for the purpose of this case, hence omitted. Rule 6(1) posits that 'all appointments to the service', after the commencement of these rules 'shall be made by the Central Govt.' and 'no such appointment should be made except after recruitment by one of the methods specified in Rule 4'. Rest of the sub-rules are not necessary hence omitted. Rule 7 provides recruitment by competitive examination, the material details thereof are not germane. Rule 9 which is material for the purpose of this case provides thus:- Recruitment by promotion : 9(1) 'The Central Govt. may', on the recommendation of the State Govt. concerned and 'in consultation with the U.P.S.C, 'recruit to the Service' persons by promotion from amongst the (substantive)members of a State Police Service in accordance with such regulations as the Central Govt. may, after consultation with the State Govt. and the Union Public Service Service Commission, from time to time, made. Sub-rule (2) provides the number of persons recruited under Sub-rule (1) in any State or group of State shall not at any time, exceed 33-1/3 per cent of the number of those posts as are shown against items 1 and 2 of the cadre in relation to that state or to the group of states in the schedule to the I.P.S. (Fixation of Cadre Strength) Regulation, 1955. Sub-rule (3) etc. are not necessary hence omitted. Sub-rule (5) provides that notwithstanding anything contained in Sub-rule (2), the Central Govt. may promote substantive members of a State Police Service in excess of the normal promotion quota in accordance with such regulations as the Central Govt. may, after consultation with the State Govt. and the Commission, from time to time, made. 7. A reading of these provisions do indicate that to become a member of the Indian Police Service, by promotion, one must belong to the State Police Service and must hold substantive post in that Service. The appointment to the service should be made by the Central Govt. No such appointment should be made except after 'recruitment' by one of the methods specified in Rule 4 i.e. direct recruitment and by promotion. The recruitment by promotion under Rule 9(1) should be made by the Central Govt. on the recommendation of the State Govt. concerned and the consultation of the U.P.S.C. is mandatory. A person thus recruited by promotion or direct recruitment alone should become a member of the Indian Police Service. The ratio of recruitment of 33-1/3 per cent between the appellants and the respondents has been limited to initial recruitment only. 8. Regulation 3 of the Promotion Regulations enjoins the State Govt. to constitute the Committee to select the promotees, consisting of the Chairman of the U.P.S.C. or its Member; the Chief Secretary. Secretary Home Department; Director General of Police, in his absence Inspector General of Police; a member of the Service not below the rank of Deputy Inspector General of Police; and a nominee of the Govt. of India not below the rank of Joint Secretary, who shall prepare, under Rule 5, a list of suitable officers. Under Rule 5(1) each committee may 'ordinarily meet at intervals not exceeding one year' and prepare a list of such members of the State Police Service, as are found 'to be suitable for promotion to the Service'. The number of members of the State Police Service to be included in the list shall be calculated as the number of substantive vacancies anticipated in the course of the period of 12 months, commencing from the date of preparation of the list, "in the posts available for them under Rule 9 of the Recruitment Rules" plus twenty per cent of such number "or two whichever is greater" (emphasis supplied). Under Sub-rule (2) of Rule 5 the Committee shall consider for inclusion in the said list, the cases of members of the State Police Service in the order of seniority in that service of such number which is equal to "three times the number" referred to in sub regulation (1). The provisos are not relevant, hence omitted. The member of the State Police Service eligible for inclusion must possess the following qualifications i.e. (i) he is a substantive member in the State Police Service, (ii) he has completed not less than 8 years of continuous service whether officiating or substantive in the post of Deputy Superintendent of Police or in any other post or posts declared equivalent thereto by the State Govt., and (iii) he has not attained the age of 52 years (on the first day, earlier January and now as amended April of the year in which the Committee meets. It has been amended to 54 years as per the latest amendment dated April 5, 1979). If the committee does not meet in the interregnum the age barred officer also may be considered in the committee's next meeting. Sub-rule (3) issues a mandate that the committee shall not consider the member who has attained the age of 52 (54) years as on date. The mechanism for selection and the number of officers to be included are not material for the purpose of the case. Hence it has not been adverted to. The committee shall classify the eligible officers as 'Outstanding', 'Very Good', 'Good' or 'Unfit', as the case may be, "on an overall relative assessment of their service record", vide Regulation 5(4). The list shall be prepared by including the required number of names in the order specified in Sub-regulation 5(4) in the order of merit inter-se within each category, i.e. "outstanding etc. shall be in the order of their seniority in the State Police Service. Under Regulation 5(6) the list so prepared "shall be reviewed and revised every year". Regulation 6 mandates the State Govt. to forward the select list to the U.P.S.C. for approval, along with the records and remarks of the members, a copy thereof "shall also be forwarded to the Central Govt." who "shall send their observations" on the recommendation of the Committee to the U.P.S.C. Under Regulation 7 "after considering the service records" and observations of the Central Govt, State and the Committee, if the U.P.S.C. considers necessary, it has been empowered to change the order in the list and shall inform the State Govt. of the proposed changes. Thus the U.P.S.C. "may approve the list finally with such modification, if any, as may in the opinion of the U.P.S.C. be just and proper". Under Regulation 3 thereof the "list finally approved by the commission shall form the select list of the promotee officers". Regulation 9 provides the appointment of the promotees to the Indian Police Service thus - 9(1) Appointment of members of the State Police Service to the Service (I.P.S.) "shall be made by the Central Govt. on the recommendation of the State Govt. in the order in which the names of members of the State Police Service appear in the Select List" (emphasis supplied) for the time being in force. The provisos thereto are not necessary and hence omitted. In Union of India v. Mohan Lal Capoor and Ors. the Select List Officers I.P.S. and I.A.S. continued in the select list from the year 1961-62 and also continued to officiate on the cadre posts from an anterior period. They were dropped from the select list of the year 1968 and were reverted to their substantive posts which was questioned in the High Court and was allowed. On appeal, this Court held that under Regulation 5(3) of the Promotion Regulations the Selection Committee has an unrestricted choice of selection of the best available talent from amongst the eligible candidates determined by reference to merit and suitability. Seniority would be considered only where merit and ability are nearly equal. The process of selection may involve supersession, which may mean supersession by a junior or even exclusion from the selection. There is "no vested right to promotion or to remain in the seniority list". The word 'promotion' in Rule 9 of the Recruitment Rules would not indicate that promotion should be on the basis of seniority subject to fitness. Inclusion of a person named in the select list in a year does not give that person a vested right to have his name in the select list in the succeeding years. The select list shall be prepared every year and be reviewed and the revision effected so as to include the most talented, meritorious and suitable officers though junior to the persons already in the select list. 9. It would, thus, be clear that the selection committee shall consider the eligibility and suitability of the members of the State Police Service on the basis of merit, ability and suitability. Seniority will be considered only where merit, ability and suitability are approximately equal and it should prepare the select list of such suitable officers in the order of merit in each category such as "outstanding", etc. and send the select list in order of seniority to the State Govt. who with its comments would forward the same to the U.P.S.C. for approval. The U.P.S.C. again would review the list, if necessary, with prior notice to the State Govt. and revise the order of names (seniority) in the list which should be final and operative for a period of 12 months. The list should consist of such number plus 20% or two officers whichever is more and of three times the anticipated substantive vacancies in the cadre posts. The appointment to the cadre posts should be made by the Central Govt. in the order in the list on the recommendation of the State Govt. The word "may" in Regulation 5 indicates that the Committee ordinarily meets at intervals not exceeding one year. Though the word "may" indicates that it is not mandatory to meet at regular intervals, since preparation of the select list is the foundation for promotion and its omission impinges the legitimate expectation of promotee officers for consideration of their claim for promotion as IPS officers, the preparation of the select list must be construed to be mandatory. The committee should, therefore, meet every year and prepare the select list and be reviewed and revised from time to time as exigencies demand. No officer whose name has been entered in the list has a vested right to remain in the list till date of appointment. The list would be liable to shuffle and the name may be excluded from the list on the comparative assessment of merit, ability and suitability based on the anticipated or expected availability of the vacancies within quota etc. The junior may supersede the senior and may be ranked top. 10. Every person recruited to the service either by direct recruitment or by promotion under Promotion Regulation shall be appointed on probation under Rule 3(1) of the I.P.S. (Probation) Rules 1954 for short 'Probation Rules' for a period of two years unless the Central Govt. grants exemption. Under Sub-rule 2 thereof, the probation may be extended for a period of one year and in no case would it exceed three years. During the period of probation, he/she must undergo the prescribed course of training and pass the tests. At the end of the probation period, on its satisfactory completion, the Central Govt. should confirm the probationer into the service. 11. Rule 8 of Promotion Regulations provides that temporary appointments from the select list to the posts borne on the State Cadre or the Joint Cadre of a group of States, as the case may be, shall be made by the State Govt. in accordance with Rule 9 of the Cadre Rules. In making such appointments, the State Govt. shall follow the order in which the names of such officers appeared in the Select List. Rule 8(2) declares that, notwithstanding anything contained in Sub-regulation (1), where administrative exigencies so require, a member of the State Police Service whose name was not included in the Select List, or who was not next in the order in that Select List, may subject to the Cadre Rules, be appointed to the cadre post, if the State Govt. is satisfied that (i) the vacancy is not likely to last for more than three months; or (ii) that no suitable cadre officer is available for filling the vacancy : provided that where any such appointment is made in a State, the State Govt. shall forthwith report to the Central Govt. together with the reasons for making the appointment. Provided further that where administrative exigencies so require, such appointments may be continued in a cadre post beyond a period of three months with 'prior concurrence of the Central Govt'. Provided further that where administrative exigencies so require, a member of the State Police Service who is not next in the order in that Select List may, subject to Rule 9 of the cadre Rules, be appointed to a Cadre post if the State Govt. is satisfied - (i) that the vacancy is not likely to last for more than three months; or (ii) that no suitable Cadre officer is available to fill the vacancy. 12. Regulation 8 thus empowers the State Govt., on ad hoc basis or local arrangement, to appoint temporarily, due to administrative exigencies, either the persons in the select list in the order of merit or dehors the list even non-select list officer to fill in the short term vacancy which does not likely to last for more than three months. This would be subject to the pre-conditions that no suitable cadre officer was available to occupy the cadre post and followed by a report with reasons thereof sent forthwith to the Central Govt. In other words, the State Govt. should post cadre officers to cadre posts and only in case of non-availability of cadre officers the select list officers be posted in the order in the select list. This is the rule. Where neither category officers are available, resort can be had to appoint non-select list officers to man the cadre posts. Regulation 8 does not empower the State Govt. either to tamper with Regulation 9 or to cut down its operation to favour undue weightage either to the select list or nonselect list promotee officers. The fine distinction, made out by the counsel for promotees of senior post or cadre post is superfluous. Take for instance even where a cadre officer or select list officer was available for posting, yet if the vacancy does not last more than three months, instead of disturbing the cadre or select list officer, a nearby non-select list officer may be posted to officiate in the cadre post, even may be in excess of the quota prescribed in the promotion Regulation and recruitment Rules, as the existence of a post within quota is not relevant. Such appointment is, therefore, on ad-hoc basis or by local arrangement. In its guise the State Govt. has no power to make any substantive appointment of the promotees to the cadre posts. The appointment under Regulation 9 and Regulation 8 are, therefore, distinct and different. Under Regulation 9 read with Rule 9 of recruitment rules the Central Govt. is empowered to appoint promotee officer to the substantive vacancies strictly in conformity with the select list. The appointment has reference to the quota and existence of substantive vacancy within the quota are necessary conditions, though some times quota may be exceeded but it is liable to adjustment. The observance of quota rule is only for initial appointment. An officer so appointed starts officiating in the cadre post and gets his/her seniority from the date of inclusion in the select list or appointment whichever is later. Whereas the appointment under Regulation 8 is only fortuitous due to administrative exigencies and such an appointee cannot claim any seniority from the date of initial appointment. The existence of the select list as on that date under Rule 8 has relevance as a source to fall back upon to fill in the vacancies and non-availability of cadre officer/select list officer for being posted. The date of appointment under Rule 8 bears no relevance to the non-select list officers for seniority. 13. Rule 3 of cadre rules adumbrates Constitution of the cadre and under Rule 3(2) the cadre so constituted shall be 'State cadre' or joint cadre, as the case may be. Rule 4 prescribes the strength of the cadre, the details whereof are not material. Rule 5 empowers the Central Govt., in consultation with the State Govt. concerned, to allocate the cadre officers. Rule 7 provides the method of posting the officers to fill in the cadre posts. All appointments to cadre posts shall be made (a) in the case of a State Cadre, by the State Govt.; and (b) in the case of a Joint Cadre, by the State Govt. concerned. Rule 8 provides that, save as otherwise provided in these rules, "every cadre post shall be filled by a cadre officer". Marginal note of Rule 9 open up its vistas to 'temporary appointment of non-cadre officer to cadre post' and thereby forebode the field of operation of Regulation 8 of promotion regulations. Regulation 9 is material for the purpose of this case which reads thus : A cadre post in a State may be filled by a person who is not a cadre officer, if the State Govt. or any of its Heads of Department to whom the State Govt. may delegate its powers of making appointment to cadre posts, is satisfied - (a) that the vacancy is not likely to last for more than three months; and (b) that no suitable cadre officer is available for filling the vacancy, provided that where cadre post is filled by a non-select list officer, or a select list officer who is not next in order in the select list, the State Govt. shall forthwith report the fact to the Central Govt. together with the reasons therefor. (2) Where in any state a person other than a cadre officer is appointed to a cadre post for a period exceeding three months, the State Govt. shall forthwith report the fact to the Central Govt. together with the reasons for making the appointment. Provided that a non-select list officer or a select list officer who is not next in order in the select list, shall be appointed to a cadre post only with the prior concurrence of the Central Govt. (3) On receipt of the report under Sub-rule (2) or "otherwise", the Central Govt. may direct that the State Govt. shall terminate the appointment of such person and appoint thereto a cadre officer, and where any direction was so issued, the State Govt. shall accordingly give effect thereto. Under Sub-rule (4) where a cadre post is likely to be filled by a person who is not a cadre officer for a period exceeding six months, the Central Govt. shall report the full facts to the U.P.S.C. with the reasons for holding that no suitable cadre officer is available for filling the post and may in the light of the advice given by the U.P.S.C. give suitable direction to the State Govt. concerned. 14. Cadre Rules, thus, enjoins the State Govt. that only a cadre officer should be appointed to a cadre post. Where the cadre officer is not available then, temporary appointments, by operation of Regulation 8 of the Promotion Regulation read with Rule 9 of cadre rules, could be resorted to and appointments are made by the State Govt. or its delegates to cope up with the administrative exigencies, of the select list officers in the order or even among the select list officers dehors the order. When both cadre officers or select list officers are not available, then only non-select list officers could be temporarily appointed. However, it is mandatory that the State Govt. should report forthwith to the Central Govt. together with the reasons to make such appointments. The condition precedent is that the post shall not last for more than three months; if it exceeds three months then the 'prior concurrence' of the Central Govt. 'is mandatory'. If it lasts more than six months it should be with the consultation of the U.P.S.C, and the Central Govt. should post the UPSC with those facts and should implement the advice so tendered by the UPSC. The State Govt. should act according to the directions of the Central Govt. The compliance of these steps are mandatory to make temporary appointment legitimate and transitory arrangement a legal one. For violation thereof, the Central Govt. is entitled to give directions to the State Govt. to terminate the service of such temporary officer and the State Govt. should abide by such direction and give effect to it. The leeway and liberty given to the State Govt. under Regulation 8 of Promotion Regulations read with Rule 9 of cadre rules is only to cope up with administrative exigencies but it became a breeding ground to distort the operation of the Rules which should scrupulously be eschewed and avoided. Any appointment made otherwise than in accordance with Regulation 9 of Promotion Regulations read with Rule 9 of recruitment Rules is thus not a valid regular appointment in the eye of law. Such temporary appointments would be transient and would be apparent when we glean through Seniority Rules as well. 15. Rule 3(1) of Seniority Rules adumbrates that every officer shall be assigned the year of allotment in accordance with Seniority Rules. Rule 3(3), which is relevant to this case, declares that the year of allotment of an officer appointed to the Service after the seniority rules came into force, shall be as follows:- (i) the year of allotment of a direct recruit officer shall be the year following the year in which competitive examination was held; (proviso omitted) (ii) officer appointed to the Indian Police Service by promotion in accordance with Rule 9 of the Recruitment Rules, the year of allotment of the junior-most among the officers recruited to the Service in accordance with Rule 7 of these Rules (direct recruit) who officiated continuously in a senior post from a date earlier than the date of the commencement of such officiation by the former. Provided that the year of allotment of an officer appointed to the Service in accordance with Rule 9 of the Recruitment Rules who started officiating continuously in a senior post from a date earlier than the date on which any of the officers recruited to the Service, in accordance with Rule 7 of those Rules, so started officiating shall be determined ad-hoc by the Central Govt. in consultation with the State Govt. concerned. (Now these rules were amended in 1987 and 1988). Explanation 1 posits that in respect of an officer appointed to the Service by promotion in accordance with Sub-rule (1) of Rule 9 of the Recruitment Rules, the period of his continuous officiation in a senior post shall, for the purpose of determination of his seniority count only from the date of the inclusion of his name in the Select List or from the date of his officiating appointment to such senior post whichever is latter (proviso is omitted). The second explanation says that an officer shall be deemed to have officiated continuously in a senior post from a certain date "if during the period from that date to the date of his confirmation in the senior grade he continues to hold, without any break or reversion, a senior post, otherwise than as a purely temporary or local arrangement". In other words, the officiating period of ad hoc promotion would not count towards seniority. The rest of the provisos are not relevant for the purpose of this case. Hence omitted. Rule 4 determines the inter-se seniority of officers of Indian Police Service. The seniority of officers inter-se should be determined in accordance with the provisions contained in these rules ad-hoc by the Central Govt. 16. It could, thus, be seen that an officer appointed to the Indian Police Service by promotion from State Services to the Central Services in accordance with Rule 9 of the Recruitment Rules read with Promotion Regulation No. 9, his year of allotment is that of the junior most among the direct recruit officers who officiated continuously in a senior post from a date earlier than the date of the commencement of such officiation by the former. The continuous officiation of the promotee officers appointed under Rule 9 of the recruitment rules earlier than the date on which the direct recruit officers started officiation, should be determined ad hoc by the Central Govt. By operation of Explanation 1 the period of continuous officiation of the promotee officer in the senior post for the purpose of determining his seniority should count only from the date of his inclusion in the Select List or from the date of his continuous officiation in such senior post whichever is latter. As a consequence, though the promotee officer continues to officiate earlier to his being brought into the select list, he gets his seniority on his appointment to the senior post from the date on which he was brought into select list, only from the date of appointment, or continuous officiation without break whichever is latter. The entire preceding officiating period earlier than his being brought on the select list should be treated to be fortuitous. By operation of Exp. 2 he counts his continuous officiation in the senior post towards his seniority from the date of his appointment provided he holds the senior post without any break or reversion otherwise than as a purely temporary or local arrangement. 17. In D.R. Nim, I.P.S. v. Union of India , the appellant was officiating as Superintendent of Police from June, 1947, namely, from the date earlier than the date of any officer recruited by competitive examination. After the Seniority Rules came into force, he was appointed to the Indian Police Service by promotion in 1955. His name was included in the Select List in 1956. The Central Govt. passed an order that the officer promoted earlier to the rules came into force should be allowed the benefit of their continuous officiation only with effect from May, 1951. It was challenged in a writ petition and requested to fix his seniority from June, 1947 counting seniority upto May, 1951, contending that the fixation of the date i.e. May, 1951 was artificial and arbitrary and had no nexus. While considering that contention the Constitution Bench held that the Central Govt. must consider the question of approval of the officiation period and come to an ad hoc decision after considering all the relevant circumstances in consultation with the Union Public Service Commission and the State Govt. concerned and fix the year of allotment. Fixing an artificial date without any reference to the relevant facts was held arbitrary. When the appellant started officiating continuously in a senior post from a date earlier than the date of any direct recruit officer, his allotment has to be determined ad hoc by the Central Govt. The first proviso applied to those facts and not the second proviso to Rule 3(3)(b) of the Seniority Rules. His seniority was fixed from 1947. In State of Orissa and Anr. v. B.K. Mohapatra , the respondent was appointed as a Deputy Superintendent of Police in the appellant's state in 1947. He was confirmed in 1950 and had continuously officiated in a senior post from 1951 to 1957. His name was included in the select list considering him to be suitable as "fit for trial list" which was approved by the U.P.S.C. on September 6, 1951 for the year 1952 and 1954. On November 10, 1955, the Selection Committee selected and recommended him for officiating appointment as Superintendent of Police. The list was approved on February 10, 1956. On December 1, 1956 the Central Govt. consulted the U.P.S.C. as to whether this list of November 10, 1955 could be treated as the select list under second proviso to Rule 3(3)(b) of Seniority Rules which was negatived by the U.P.S.C. Again on February 15, 1957 the Selection Committee prepared select list for substantive posts in the I.P.S. and included the respondent's name therein. The Central Govt. decided that the continuous officiation in the senior post on the basis of 'fit for trial' list could not be counted for the purpose of determining his seniority. On July 10, 1957 the respondent was appointed to the I.P.S. and on July 22, 1958, the Central Govt. wrote to the State Govt. that the continuous officiation of the respondent was not approved prior to February 10, 1956, namely, the date on which he was included in 'fit for trial' list and on that basis the year of allotment of 1951 was not given to the respondent under Rule 3(3)(b) of seniority rules. The respondent filed the writ petition in the High Court contending that since he was included in the select list of the year 1952-54 as approved by the U.P.S.C, the year of allotment should be 1948 which was the year of allotment of a junior most direct recruit and the choice of February 10, 1956 was discriminatory between him and the other officers. This was found favour with the High Court which allowed the writ petition. On appeal, this Court by a bench of three Judges allowed the appeal and held that the object of the second proviso to Rule 3(3)(b) was to cut down the period of officiation which could be taken into consideration under Rule 3(3)(b). The lists of 1951, 1952 and 1954 were not select lists for the purpose of substantive appointment but only for the purpose of officiation. Therefore, 'fit for trial' list could not be deemed to be select list. The officiation was not continuous officiation of the officers in the select list. Only from February 15, 1957, the date on which he was brought on the select list could be deemed to be in the select list. The Central Govt. and U.P.S.C. must approve the officiating period. While considering the effect of Explanation 1 this Court held that 'Explanation 1 really explain the expression "officiating continuously" occurring in Rule 3(3)(b) but it does not mean that where Explanation 1 applies the second proviso does not apply. The object of Explanation 1 is to deal with the problem arising in the case of officer holding appointment as a purely temporary' or local arrangement. (emphasis supplied) "If the second proviso applies as we hold, it was for the Central Govt. to approve or not to approve the period of officiation prior to the date of inclusion of the petitioner in the select list". Accordingly it was held that the respondent was entitled to his continuous officiation only from the date when he was put in the select list, though he had continuous officiation in the senior post for a long period. 18. In Anil Kumar Choudhary v. State of Assam and Ors. , the petitioner while holding substantive post in Assam Civil Service, Class I, he was included in the select list in the year 1961 and was functioning in the senior post from the year 1960 till he was included in the select list with a gap of one week in 1966. He claimed seniority from 1960 to 1967. Those posts were not declared equivalent to the cadre posts. Even some of the posts held by the petitioner were superior to the cadre posts. When he was denied continuous officiation, he filed in this Court a writ petition under Article 32. A Bench of two judges held that, though the petitioner held responsible positions vis-a-vis cadre posts, "the formal requirements of Rule 3(3)(b) are basic to his claim for pre-dating his entry into the IAS." It is a condition precedent that the officiation must be in a post declared as cadre post by the State Govt. with the approval of the Central Govt. The deemed relaxation was negatived holding that the 'Governments speak and act formally and in solemn writing and not informally'. The approval of the Central Govt. was also held mandatory. It was further held at p. 884 that "Another impediment confronting the unfortunate petitioner is that the proviso to Rule 3(3)(b) requires not merely the State Government's decision regarding the posts being equal to cadre post but such officiation must be with the approval of the Central Govt.; none such is forthcoming. And, indeed, the absence of such approval is the stand of the Central Govt.". Accordingly the writ petition was dismissed. In R.P. Khanna and Ors. v. S.A.F. Abbas and Ors. etc. , the appellants were direct recruits and the respondents were promotees. The direct recruits were appointed to the IAS in the year 1949-50. The promotees were initially promoted to the IAS in the year 1955-56. In fixing their inter se seniority in terms of seniority rules, the Govt. of India allotted 1948 to the promotees as the year of allotment and placed them below the junior most among the direct recruits of the year 1948. On the representation of the direct recruits that the State Govt. had no power to create cadre post retrospectively and the year of allotment to the promotee was wrong, in September 20, 1967, the Central Govt. tentatively revised the year of allotment and allotted 1950 to some and 1952 to others as year of allotment. That was challenged in the High Court by the promotees and succeeded. On appeal, a 3 Judge Bench of this Court held that as per Rule 3(3)(b) of IAS. Regulation of Seniority Rules, 1954, the year of allotment of an officer who was appointed to the service by promotion shall be the year of allotment of the junior most among the officer who entered the service by direct recruitment and who officiated continuously in a senior post from a date earlier than the date of commencement of such officiation by the promotee. The second proviso to the rule laid down that the promotee shall be deemed to have officiated continuously in the senior post prior to the date of inclusion of his name in the select list. 19. The select list for the promotion of the respondents was finally approved by the U.P.S.C. on December 26, 1955. Rule 3(3)(b) of the Seniority Rules, 1954 speaks of approval by the Central Govt. in consultation with the U.P.S.C. of the period of the officiating prior to the date of the inclusion of the names of the promotees in the select list. This approval as contemplated in Rule 3(3)(b) is a specific approval and is directed to the particular matter mentioned therein as to whether there is approval of the period of officiation prior to the inclusion of the names in the select list. The Central Govt. did not give any approval in consultation with the U.P.S.C. under Rule 3(3)(b). (emphasis supplied). Therefore, the benefit of the period of officiation prior to the date of the inclusion of their names in the select list was not available. This court further held that "the harmonious construction of the definition of senior post occurring in the 1954 Cadre Rules along with Rule 3(3)(b) of the Regulation of Seniority Rules is that promotee will by a legal fiction, obtain advantage of the period of officiation first by the declaration and second by the approval of the Central Govt. in consultation with the U.P.S.C. It is not the declaration but the approval which introduced the legal fiction". Construing the Explanation 1, this Court held that 'the explanation states that in respect of a promotee the period of continuous officiation in a senior post shall, for the purpose of determination of his seniority, is only from the date of the inclusion of his name in the select list, or from the date of his officiating appointment to such senior post whichever is latter." In Amrik Singh and Ors. v. Union of India and Ors. . Sri Ahluwalia, 4th respondent therein became a Deputy Superintendent of Police by the end of 1956. In 1962 the Central Govt. constituted a common police service for the Union Territory of Delhi and Himachal Pradesh and in 1964 he was absorbed into that service on a regular basis. In the absence of any direct recruit Sri Ahluwalia was promoted as Superintendent of Police. In 1965 the select list was prepared and he was appointed in October 1965 as Superintendent of Police and he continued to officiate till January, 1971 and he was appointed substantively on January 30, 1971 as Superintendent of Police and was confirmed. He was given 1965 as the year of allotment on the ground that one Mr. Sahney another promotee officer who was senior to him in the select list was posted to an ex-cadre post, Mr. Ahluwalia contended that he is entitled to 1961 as the year of allotment. The High Court accepted the contention and allowed the writ petition. While dismissing the appeal this Court held that the effect of Rule 9 of the Indian Police Service (Cadre) Rules, 1954 is that, when the cadre post was vacant and no cadre officer was available, a non-cadre officer may fill the vacancy for a period beyond three months if the State Govt. reports to the Central Govt. the reasons therefor and if it was not ordered to be terminated, the Central Govt may permit a non-cadre officer to fill a cadre post for a period exceeding six months provided that it reports the full facts to the U.P.S.C. and acts responsibly in the light of the advice of the Commission. If no such report by the State Govt. to the Central Govt. was sent and no consultation by the Central Govt. with the Commission was done, by-passing the Public Service Commission be speaks prima facie impropriety. In that case there was an express order passed under Rule 3 of the Residuary Rules giving the benefit of 1961 year of allotment to Ahluwalia with the consultation of the U.P.S.C. It was an individual case between two promotees. The ratio reiterates the mandatory duty to comply with the Seniority Rules. 20. In Union of India, etc. v. G.N. Tiwari, K.L. Jain and Ors. [1985] Suppl. 3 SCR 744, relied on by the Tribunals and by the respondents, the respondent was temporarily appointed to the cadre post (post of Collector) and had continuously officiated from November 10, 1975 till the Central Govt. accorded its approval on October 1, 1976. The promotion was according to the rules and within the quota and no one either direct recruit or promotee officer had been effected. He was appointed to the Indian Administrative Service on Dec. 7, 1976 and was informed that his year of allotment was 1972. He challenged it and contended that his year of allotment should be 1971 and claimed to fix his seniority accordingly. The High Court allowed the writ petition. This court while allowing the appeal held that where a cadre post was likely to be filled by a person who was not a cadre officer for a period exceeding six months, the Central Govt. was required to report the full facts to the U.P.S.C. with the reasons for holding that no suitable officer was available to man the post and may, and in the light of the advice given by the U.P.S.C, give suitable directions to the State Govt concerned in that behalf. At p. 755 this Court held that "where a person other than a cadre officer was appointed to the Service by promotion in accordance with Sub-rule (1) of Rule 8 of the Recruitment Rules, the year of allotment of the junior-most amongst the officers recruited to the Service in accordance with Rule 7 of the Rules who officiated continuously in a senior post from a date earlier than the commencement of such officiation by the promotee, is the determinative factor in the allocation of the year of allotment under Rule 3(3)(b) of the Seniority Rules." At p. 756 this Court further held that Explanation 1 to Rule 3(3)(b) interdicts that in respect of an officer appointed to the Service by promotion in accordance with Sub-rule (1) of Rule 8 of the Recruitment Rules, the period of his continuous officiating in a senior post shall, for purposes of determination of his seniority, count only from the date of his inclusion in the select list or from the date of his officiating appointment to such senior post, whichever is later. The second explanation provided that an officer shall be deemed to have officiated continuously in a senior post from a certain date if during the period from the date of his appointment till the date of his confirmation in the senior post he continued to hold without any break or reversion from the senior post otherwise than as a purely temporary or local arrangement. In that case since no one was effected by the continuous officiation by the non-cadre officer, this Court drew fiction of the deemed approval by the Central Govt. For from helping the promotees the ratio does assist the appellants. 21. Thus it is settled law that a promotee Officer appointed temporarily under Regulation 8 of Promotion Regulation and Rule 9 of cadre Rules to a cadre post does not gets his/her continuous officiation towards seniority. Seniority would be counted only from the date on which he/she was brought into the select list by the selection committee in accordance with Recruitment Rules, Promotions, Regulations and seniority Rules and was approved by the UPSC, appointed under Rule 9 of Recruitment Rules and Regulation 9 of Promotion Regulations and Rules has continuously officiated without break. Seniority would be entitled from the date of select list or continuous officiation whichever is later. He/she is entitled to appointment by the Central Govt. to substantive vacancy under Regulation 9 of Promotion Regulations from that date. The Central Govt. and the U.P.S.C. should approve temporary appointment by an order in writing and also of such officiation. In that event seniority would be counted only from the date, either of his/her inclusion in the select list or from the date of officiating appointment to the cadre post whichever is latter. By operation of Explanation 1 to Rule 3(3)(b) of the Seniority Rules his seniority will be counted only from either of the latter dates and the necessary effect is that the entire previous period of officiation should be rendered fortuitous and the appointment as ad-hoc appointment or by local arrangement. 22. The question then emerges as to when the promotees stood appointed to the cadre/Senior posts? The learned Counsel Sri Jain contends that due to inaction in preparing the select lists for the years 1971, 1974 and 1975 and later 1979 & 1980 the promotees lost their right to inclusion in the select list and that, therefore, rules 5 and 9 of the Recruitment Rules read with Rule 3(3)(h) of the Seniority Rules have been broken down and the Central Govt. must be deemed to have relaxed the above rules by deemed exercise of its power under Rule 3 of the Residuary Rules. In this context he argues that the seniority, being a condition of the service, could be relaxed. 23. Preparation of the select list as per promotion Regulations is a pre-condition for recruitment by promotion. The State Govt. is enjoined to send the select list to the UPSC, which after considering the objections, if any, of the Central Govt. and the State Govt. and the views of the Committee, would approve the list with such modifications as it may be deemed just and proper. The Central Govt. makes appointment of the promotee officer to the I.P. service in strict conformity with Rule 9 of Recruitment Rules and Regulation 9 of Promotion Regulations in the order of merit and in no case the quota of 33-1/3 per cent to the promotees should be exceeded. The year of allotment under Rule 3 of Seniority Rules to every officer of the I.P.S. is mandatory. In order to get into the select list, the promotee officer has to fulfil the conditions of the rules of recruitment and Promotion Regulations i.e. he must be brought into the select list satisfying the conditions specified therein and the Seniority Rules. As per Recruitment Rules, merit, ability and suitability are the criteria and seniority will be considered only where merit and suitability are approximately equal. Integrity, ability and record of service would furnish the ground to assess the merit of the promotee officer to assign the ranking inter-se in the list and appointment by Central Govt. should be in the order as approved by the UPSC and recommended by the State Govt. Bringing the name on the list does not confer any right to automatic appointment. The appointment should be made to a substantive vacancy within the quota in the order in the select list unless the predecessor promotee officer in the list opts to forgo the same. Seniority rules thus provide the source or foundation upon which the whole edifice of Indian Police Service has been built upon to assign the year of allotment. The scheme of the Rules and Regulations is an integral and continuous whole and any snap in the link would lead to distortion and land up in imbalance in the ratio and upset the smooth working of the scheme frustrating the national integration, the object of the All India Service Act. Moreover, the recruitment by selection would give only right to be considered according to rule and creates no right to appointment. The order of appointment by the Central Govt. under Rule 9 of Recruitment rules crystallizes the right of a promotee officer into the service. Seniority would be counted only from date of select list or the date of continuous officiation after appointment whichever is later. 24. Rule 3(1) & 3(3)(b) of Seniority Rules, lays down the criteria for assigning the year of allotment that where an Officer has been appointed to the service by promotion under Rule 9 of the Recruitment Rules, his seniority would be determined in the light of Explanations 1 and 2 thereof. The year of allotment is that of the junior most among the direct recruit officers to the Service in accordance with Rule 7 of the Recruitment Rules who has officiated continuously in a senior post from a date earlier than the date of commencement of the officiation by the promotee officer. The concomitant result is that the determination of the seniority has been inter linked with the recruitment of the promotee officer to the Indian Police Service. To satisfactorily solve the problem the Recruitment Rules, Promotion Regulations and Seniority Rules vis-a-vis the Cadre Rules should be read together. 25. Due to exigencies of the service, the State Govt. has been empowered under Regulation 8 of Promotion Regulations read with Rule 9 of cadre rules to appoint select list or non-select officers to man temporary vacancies in cadre posts. So long as cadre officer is available, he/she alone is to be posted to a senior cadre post. In his/her absence the select list officer awaiting promotion, must be appointed in the order found in the list. It must be the rule and deviation must be for exceptional reasons and circumstances. Where either the cadre officers or select list officers are not available, then only non-select list officers may be promoted to temporary vacancies which should not be likely to last for more than three months and the State Govt. must strictly comply with the conditions specified in the provisos to Regulation 8(2) of Promotion Regulations and Rule 9 of cadre rules. In other words, where the vacancy/vacancies continue for more than three months, the prior concurrence of the Central Government is mandatory. If it continues for more than six months prior approval of the Union Public Service Commission is also mandatory. Any appointment in violation thereof is not an appointment in accordance with the law. These appointments are mere ad-hoc or local arrangement or fortuitous. 26. The question at once arises whether persons appointed under Regulation 8 of promotion Regulation read with Rule 9 of cadre rules would be entitled to count the entire officiating period in the cadre post and if so from what period and to what extent. In Direct Recruit Class II Engineering Officers' Association and Ors. v. State of Maharashtra and Ors. , the Constitution Bench held in proposition 'A' that once any one is appointed to a post according to rules his seniority has to be counted from the date of his appointment and not according to the date of confirmation. A corollary of the above rule is that where initial appointment is ad-hoc and not according to rules and made as stop-gap arrangement, the officiation in such post cannot be taken into account for considering seniority. Proposition 'B' lays down that if the initial appointment was not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till regularisation of his service the period of officiating service will be counted towards seniority. The contention raised by the promotees in that case was that since they were appointed according to rules and had been uninterruptedly officiating in the posts till regularisation they were entitled to count their temporary service towards seniority. On those facts, the Constitution Bench held that the initial appointments were according to rules, and the promotees were entitled to seniority from the date of initial promotion. The propositions should be understood and applied in the light of the facts in each case. Propositions 'A' and 'B' must be read together in the light of the discussion in Paragraph 13 of the judgment. 27. In K.C. Joshi v. Union of India [1992] Suppl. 1 SCC 272, it was held that the Forest Range Officers were not appointed as Asstt. Conservators of Forest as per the Rules and that, therefore, the entire continuous officiating period was not counted towards seniority. The same view was reiterated in A.N. Sehgal and Ors. v. Raje Ram Sheoran and Ors. [1992] Suppl. 1 SCC 304. In that case also contrary to and in excess of the quota rule, the promotions were made and the services of some officers were also regularised. This court held that the appointment to the post according to rules and within the quota was mandatory. The continuous officiation or confirmation would not enure to the benefit of the promotee officers appointed in excess of the quota. In Masood Akhtar Khan and Ors. v. State of Madhya Pradesh and Ors. it was held that if the initial appointment is not according to rules, the benefit of continuous officiation will not be given. 28. We find force in the contention of Sri P.P. Rao that unless the promotees were recruited to the Indian Police Service in accordance with the regulations and rules they did not form a class with the direct recruits and unequals cannot be treated as equals. Recruitment to the service is from more than two sources, primarily from direct recruitment and promotion. Unless the promotee officer is appointed to the service in accordance with the rules, he does not become a member of the service. On appointment under Rule 9 of the Recruitment rules to a substantive vacancy from the select list by the Central Govt. the promotee officer becomes a member of the service. But whereas appointment under Regulation 8 of promotion regulation is in disregard of the rules to cope up with the administrative expediency, be it to a temporary or substantive vacancy, an appointee under Regulation 8 read with Rule 9 of cadre rules is an unequal to a direct recruit or one under Regulation 9 of Promotion Regulation read with Rule 9 of Recruitment Rules. So unequals cannot be treated as equals offending Article 14 and 16(1) of the Constitution. Mere production of inequality by operation of the rule is not sufficient to treat an appointee under Regulation 8 of Promotion Regulation at par with one under Direct Recruitment or one under Rule 9 of Recruitment Rule and Regulation 9 of Promotion Regulations. Getting qualified earlier in point of time or passing the prescribed tests does not by itself clothe with a right to promotion or entitle to seniority. It would arise only after the select list was prepared on comparative evaluation of the record and assessment of merit, ability and suitability and fixation of inter se seniority was made and approved by the UPSC followed by or preceded with an order of appointment under Regulation 9 of Promotion Regulations and Rule 9 of Recruitment Rules. Persons similarly circumstanced alone are entitled to equal treatment. The rule making authority or the legislature take into consideration diverse factors to integrate into common cadre the incumbents drawn from different sources. They have better knowledge to adjust those appointees to integrate them into common cadre. Until the officers are appointed to the Indian Police Service in accordance with the recruitment rules and Promotion Regulations, they remain a separate source and a distinct class. Only on due appointment after their fusion into common stream or cadre, there cannot be any invidious discrimination thereafter between the promotees and the direct recruits. The direct recruits and promotes/officers constitute, thus, different classes. Conditions of recruitment should strictly be complied with in making recruitment by promotion of the Dy. S.P. from a State Police Service holding substantive posts into the Indian Police Service. Any appointment in contravention thereof would negate the scheme of the rules and regulations. 29. Fulfilling the conditions of eligibility for consideration for promotion to the Indian Police Service from State Service are conditions of recruitment. Once a promotee has duly been recruited by promotion the conditions thereafter like pay, pension etc. are conditions of service. The compliance of conditions of recruitment are mandatory for appointment by promotion. In Keshav Chandra Joshi's case (Supra), the writ petitioners were Forest Range Officers in U.P. State Forest Subordinate Service. Due to paucity of direct recruit Asstt. Conservators of Forest by the U.P.S.C. the Forest Range officers were temporarily promoted and they continued to officiate as Asstt. Conservators of Forest for a period ranging between 5 to 12 years. They filed a writ petition under Article 32 contending that they became senior to the direct recruits who were recruited later on and that their continuous officiation should be counted towards their seniority. This Court, while repelling the contention, held that appointment to the post in accordance with the rules is a pre-condition and the conditions of rules of recruitment cannot be relaxed and that the promotees get their seniority only from the date of the regular promotion in accordance with the rules and within quota. The entire officiating period was held to be fortuitous. It must, therefore, be held that recruitment by promotion in accordance with the Regulation and Rules are conditions of Recruitment and are mandatory and should be complied with. 30. The next question is whether the seniority is a condition of service or a part of rules of recruitment? In State of M.P. and Ors. v. Shardul Singh, this Court held that conditions of service means all those conditions which regulate the holding of a post by a person right from the time of his appointment (emphasis Supplied) to his retirement and even beyond, in matters like pensions etc. In I.N. Subba Reddy v. Andhra University and Ors. , the same view was reiterated. In Mohd. Shujat Ali and Ors. etc. v. Union of India and Ors. etc. , Constitution Bench held that the rule which confers a right to actual promotion or a right to be considered for promotion is a rule prescribing a condition of the service. In Mohd. Bhakar v. Krishna Reddy 1970 S.L.R. 768, another Constitution Bench held that any rule which affects the promotion of a person relates to his condition of service. In State of Mysore v. G.B. Purohit C.A. No. 2281 of 1965 dt. 25.1.1967, this Court held that a rule which merely effects chances of promotion cannot be regarded as varying a condition of service. Chances of promotion are not conditions of service. The same view was reiterated in another Constitution Bench judgment in Ramchandra Shankar Deodhar and Ors. v. The State of Maharashtra W.P. No. 299 of 1969 dt. Nov. 12, 1973. No doubt conditions of service may be classified as salary, confirmation, promotion, seniority, tenure or termination of service etc. as held in State of Punjab v. Kailash Nath , by a bench of two Judges. But it must be noted the context in which the law therein was laid. The question therein was whether non-prosecution for a grave offence after expiry of four years is a condition of service? While negativing the contention that non-prosecution after expiry of 4 years is not a condition of service, this Court elaborated the subject and the above view was taken. The ratio therein does not have any bearing on the point in issue. Perhaps the question may bear relevance, if an employee was initially recruited into the service according to the Rules and Promotion was regulated in the same rules to higher echelons of service. In that arena promotion may be considered to be a condition of service. In A.K. Bhatnagar v. Union of India , this Court held that seniority in an incidence of service and where the service rules prescribe the method of its computation it is squarely governed by such rules. In their absence ordinarily the length of service is taken into account. In that case the direct recruits were made senior to the recruits by regularisation although the appellants were appointed earlier in point of time and uninterruptedly remained in service as temporary appointees alongwith the appellant but later on when recruited by direct recruitment they were held senior to the promotees. 31. No employee has a right to promotion but he has only right to be considered for promotion according to rules. Chances of promotion are not conditions of service and are defeasible. Take an illustration that the Promotion Regulations envisage maintaining integrity and good record by Dy. S.P. of State Police Service as eligibility condition for inclusion in the select list for recruitment by promotion to Indian Police Service. Inclusion and approval of the name in the select list by the U.P.S.C, after considering the objections if any by the Central Govt. is also a condition precedent. Suppose if 'B', is far junior to 'A' in State Services and 'B' was found more meritorious and suitable and was put in a select list of 1980 and accordingly 'B' was appointed to the Indian Police Service after following the procedure. 'A' was thereby superseded by 'B'. Two years later 'A' was found fit and suitable in 1984 and was accordingly appointed according to rules. Can 'A' thereafter say that 'B' being far junior to him in State Service, 'A' should become senior to 'B' in the Indian Police Service. The answer is obviously no because 'B' had stolen a march over 'A' and became senior to 'A'. Here maintaining integrity and good record are conditions of recruitment and seniority is an incidence of service. Take another illustration that the State Service provides rule of reservation to the Scheduled Castes and Scheduled Tribes. 'A' is a general candidate holding No. 1 rank according to the roster as he was most meritorious in the State service among general candidates. 'B', Scheduled Castes candidate holds No. 3 point in the roster and 'C', Scheduled Tribe holds No. 5 in the roster. Suppose Indian Police Service Recruitment Rules also provides reservation to the Scheduled Castes and Scheduled Tribes as well. By operation of the equality of opportunity by Articles 14, 16(1), 16(4) and 335 'B' & 'C' were recruited by promotion from State Services to Central Services and were appointed earlier to 'A' in 1980. 'A', thereafter in the next year was found suitable as a general candidate and was appointed to the Indian Police Service. Candidate thereafter contend that since 'B' & 'C' were appointed by virtue of the reservation, though were less meritorious and juniors to him in the State service and gradation list would not become seniors to him in the cadre as IPS Officer. Undoubtedly 'B' & 'C by rule of reservation, had stolen a march over 'A' from the State Service. By operation of rule of reservation 'B' and 'C' became Seniors and 'A' became junior in the Central Services. Reservation and roster were conditions of recruitment and seniority was only an incidence of service. The eligibility for recruitment to the Indian Police Service, thus, is a condition of the recruitment and not a condition of service. Accordingly we hold that seniority, though, normally an incidence to service, Seniority Rules, Recruitment Rules and Promotion Regulations form part of the conditions of recruitment to the Indian Police Service by promotion, which should be strictly complied with before becoming eligible for consideration for promotion and are not relaxable. 32. The next question is whether Rule 3(3)(b) of the seniority rules and Regulation 5 of Promotion Regulation had collapsed. In support thereof strong reliance was placed by the counsel for promotees on the ratio in Narender Chadha and Ors. v. Union of India and Ors. , The facts therein were that for the Indian Economics and Statistics Service there are two modes of recruitment, namely, direct recruitment and promotion from feeder source. The petitioners therein were promotees from Grade IV service and for well over 15 to 20 years there was no direct recruitment. The promotees continued in the promoted posts, though on ad-hoc basis, without reversion. When the later direct recruits claimed seniority over them, this Court in Contempt proceedings to relieve the iniquitous results, held that since the recruitment rules given power to the Central Govt. to relax the condition of service, the rule must be deemed to have been relaxed and promotees deemed to have been appointed to the post in accordance with the rules. 33. Rule 3 of the Residuary Rules provides the power to relax rules and regulations in certain cases - Where the Central Govt. is satisfied that the operation of - (i) any rule made or deemed to have been made under the Act, or (ii) any regulation made under any such rule, regulating the conditions of service of persons appointed to an All India Service "causes undue hardship in any particular case", it may, by order, dispense with or relax the requirements of that rule or regulation, as the case may be, to such an extent and subject to such exceptions and conditions as it may consider necessary for dealing with the case in a "just and equitable manner". Rule 3 empowers the Central Govt. to relieve undue hardship occurred due to unforeseen or unmerited circumstances. The Central Govt. must be satisfied that the operation of the rule or regulation brought about undue hardship to an officer. The condition precedent, therefore, is that there should be an appointment to the service in accordance with rules and by operation of the rule, undue hardship has been caused, that too in an individual case, the Central Govt. on its satisfaction of those conditions, have been empowered to relieve such undue hardship by exercising the power to relax the condition. It is already held that conditions of recruitment and conditions of service are distinct and the latter is preceded by an appointment according to Rules. The former cannot be relaxed. The latter too must be in writing that too with the consultation of U.P.S.C. In Mahapatra and Khanna cases this Court held that approval by the Central Govt. and U.P.S.C. are mandatory. In A.K. Cnaudhary's case it was held that requirement of Rule 3(3)(b) of Seniority Rules is mandatory. In Amrik Singh's case an express order in writing under Rule 3 of Residuary rule is mandatory. In this case neither any representation to relax the rules was made nor any order in writing in this behalf was expressly passed by the Central Govt. The fiction of deeming relaxation would emasculate the operation of the Rules and Regulations and be fraught with grave imbalances and chain reaction. It is, therefore, difficult to accept the contention that there would be deemed relaxation of the Rules and Regulations. 34. It is next contended that by non-preparation of the select list, the promotees had lost their chances of promotion to get into super time scales of pay and so on. Preparation of the annual seniority list is, therefore, mandatory and that by its non-preparation the rules have been collapsed. The argument ex-fade is alluring but lost validity on close scrutiny. The contention bears two facets: firstly preparation of the seniority list and secondly the consequences that flow from the omission to prepare the seniority list. It is already held that the committee shall prepare the seniority list every year and be reviewed and revised from time to time taking into account the expected or anticipated vacancies during the year plus 20 per cent or two vacancies whichever is more. It is already held that wide distinction exists between appointment by direct recruitment and one under Regulation 9 of Promotion regulation and Rule 9 of Recruitment Rules on the one hand and under Regulation 8 thereof read with Rule 9 of cadre rules on the other hand. Their consequences are also distinct and operate in different areas. Prior approval of the Union Public Service Commission and prior concurrence of the Central Govt. are mandatory for continuance of temporary appointment under Regulation 8 beyond six months and three months respectively together with prompt report sent by the State Govt. supported by reasons therefore. In their absence it is not a valid appointment in the eye of law. Unless an officer is brought on the select list and appointed to a senior cadre post and continuously officiated thereon he does not acquire right to assignment of the year of allotment Eligibility age for consideration was only upto 52 years and presently 54 years. If the list was not prepared though for the succeeding year the age barred officers may be considered but were made to compete with junior officers who may eliminate the senior officer from the zone of consideration. Suppose in 1980 the senior officer was not qualified though the list was made, but in 1981 he could improve and become eligible. Non-preparation of the select list for 1980 disables the officer to improve the chances. In Sehgal's case, this Court held that chances of promotion and the aspiration to reach higher echelons of service would enthuse a member of the service to dedicate himself assiduously to the service with deligence, exhibiting expertise, straight forwardness with missionary zeal, self-confidence, honesty and integrity. The absence of chances of promotion would generate frustration and an officer would tend to become corrupt, slower and a mediocre. Equal opportunity is a fertile resource to augment efficiency of the service. Equal chances of promotion to the direct recruits and the promotees would produce harmony with accountability to proper implementation of government policies. Unless the select list is made annually and reviewed and revised from time to time, the promoted officers would stand to lose their chances of consideration for promotion which would be a legitimate expectation. This Court in Mohan Lal Capoor's case held that the committee shall prepare every year the select list and the list must be submitted to the U.P.S.C. by the State Govt. for approval and thereafter appointment shall be made in accordance with the rules. We have, therefore, no hesitation to hold that preparation of the select list every year is mandatory. It would subserve the object of the Act and the rules and afford an equal opportunity to the promotee officers to reach higher echelons of the service. The dereliction of the statutory duty must satisfactorily be accounted for by the State Govt. concerned and this Court takes serious note of wanton infraction. 35. The question then is whether the failure to prepare the select list could give rise to an inference that rules have been collapsed and the State Govt's local arrangement shall be given legitimacy as regular appointments? After giving our anxious consideration to the end resultants, we find it hard to accept the contention. The reasons are manifold. The appointment by promotion to the Indian Police Service and as a fact to any All India Service and determination of inter se seniority bear vital effect at the higher echelons of super time scale of pay and the above. The State Govt. and the Central Govt. should strictly comply with the provisions in making recruitment by promotion from the State Service to the All India Services. If laxity has been given legitimacy and deemed relaxation is extended it would not only upset smooth working of the rules but also undo the prescribed ratio between promotees officers and direct recruits. It would also produce adverse effect at the All India level. Moreover, the concept of All India Services introduced to effectuate the national integration by drawing persons from different regions by direct recruitment into concerned States cadres would be defeated by manipulation National integration would be disturbed and frustrated. Smooth implementation of the rules would be deflected and distortions in service would gain legitimacy and acceptability. While the Central Govt. remain statutory appointing authority the State Govt. gets into saddle and would become de facto appointing authority, the junior most and unqualified or unfit would be pushed in from back door and pumped up into higher echelons, eroding efficiency and honesty. We, therefore, hold that for failure to prepare select list every year, Rule 3(3)(b) of the Seniority Rule, Rules 5 and 9 of Recruitment Rules and Regulation 9 of Promotion Regulations have not been broken down and the appointment by local arrangement by the State Govt. under Regulation 8 of the Promotion Regulations and Rule 9 of Cadre Rules are not valid and legal. The promotee officers are not entitled to count their whole officiating period towards their seniority. 36. Of course Sri Harish N. Salve contended that the promotees were not unduly favoured by the State Govt. On the facts we need not go into that question. This Court, pending appeals, directed the State Govt. to prepare the select list on notional basis for the years 1971, 1975, 1976, 1979 and 1980 and to consider the eligibility of the officers as per rule and to submit the report to this Court which lists were accordingly prepared and kept in this Court. The promotees questioned their correctness. Since it is a matter of factual verification by the State, the Central Govt. and U.P.S.C., this Court cannot undertake to review their legality. Therefore, the handicap, if any, suffered by promotees for that limited periods has now been made good and subject to further verification into the grievance, if any, is now redressed. The special grade posts were created in the scale of pay of the cadre posts held by the promotees. It is seen that under the cadre rules the Central Govt. in consultation with the State Govt. creates the cadre posts and the State Govt. merely recommends. The State Govt. cannot, on its own, create cadre posts and that is not the case on hand. The special grade posts enabled the promotees to remain as Deputy Superintendent of Police drawing the pay, equal to the cadre posts but to no other benefit and they did not cease to be Dy. Superintendent of Police as contended by Sri Gupta. 37. We accordingly hold that majority members committed the gravest of errors in holding that Explanation 1 to Rule 3(3)(b) of Seniority Rules and the relevant rules were deemed to have been relaxed and the directions given to the Central Govt. to refix the seniority is illegal. However, we emphasise that many of the promotees have since been retired from service after working out notional promotion and monetary benefits, as this Court did not stay the operation of the Tribunal's order. Arrears paid should not be recovered from them and promotions already made to some of the promotees and now continuing in the respective offices may not also be recalled since they have been working for some time past. However, the continuing officers should not be entitled to any future promotions on the basis of the directions of the Tribunal, superseding the claims of the direct recruits until they became eligible in their turn as per this judgment. The Registry is directed to return the seniority lists produced by the State Govt,, which would give notice to the promotees who were included in the notional list of their inter se placement of the respective years 1971, 1975, 1976, 1979 and 1980 directing them to submit within a specified time their objections, if any, and the State Govt. would send the list, the objections if made all relevant record to the U.P.S.C. marking copies thereof to the Central Govt. The Central Govt. would submit their comments to the U.P.S.C. which would consider them any may accept or modify the list as per the record and would communicate to the Central Govt. and State Govts. Thereafter the Central Govt. would make necessary appointments on the recommendation by the State Govts. as per law. The seniority list already approved by the Central Govt. as directed by this Court in the first instance subject to the above modification and for the rest of the years would stand upheld and the Civil Appeals to that extent are allowed and O.As. stand dismissed. For others the respective years of allotment shall accordingly be assigned. The appeals are accordingly allowed with above directions. The Writ Petition is against interim directions of this Court. Pending appeal. It is not maintainable. It is accordingly dismissed. The LA. Nos. 1 to 10/91 and C.P. No. 191 of 1991 are dismissed. The directions given by the respective tribunals stand modified. In the circumstances parties would bear their respective costs throughout.

Author: K Ramaswamy

Syed Khalid Rizvi And Ors. And ... vs Union Of India (Uoi) And Ors. on 20 November, 1992

Supreme Court of India

ORDER P.K. Desai, Member (J) 1. This appeal is directed against the Order-in-Appeal No. PPM/1780/B-1-475/85 of the Collector of Central Excise (Appeals), Bombay confirming the duty demand for Rs. 10,085.25. 2. The Appellants cleared 14 cases of Steel Safes and Strong Boxes under AR 4 form, on 1-8-1975 without payment of duty by executing B-I Bond. The said goods were loaded on Board a Vessel for being exported. After the Vessel left Bombay Port on 30-8-1975, it caught fire and hence was brought back to Bombay Port and the Voyage was abandoned. The consignment including the said consignment were off loaded, which were taken as re-landing and customs duty was charged vide Section 20 of the Customs Act, which was paid. The Excise Department however, issued Show Cause cum-Demand Notices, demanding duty of Rs. 10,085.25 or to produce Certificate for due export. The Appellant pleaded that the return of the goods was treated as re-import and accordingly, Customs duty was charged and hence, export having been deemed to have been caused, the requirement of B-I Bond were complied with and hence, there was no case for demanding excise duty. The contention was negatived and duty demand was confirmed. In the Appeal before the Collector (Appeals), the said demand stood confirmed. 3. Mr. R.J. Parekh, the ld. Advocate has pleaded that as per the Customs Act, they have paid the duty and as such, the export and re-import has already been effected and by demanding excise duty, there would be double taxation. He has also referred to the provisions contained in Section 20 of the Customs Act. 4. Mr. S.V. Singh, the ld. J.D.R. has however, pleaded that as per B-I Bond executed, proof of due export was required, which having not been produced, the Appellants became liable to pay the excise duty. 5. Considering the submissions and going through the records there does not appear any dispute as to the factual position. There is no dispute that the Customs Duty payable vide Section 20 of the Customs is paid. 6. Supreme Court have in Collector v. Sun Exports -1988 (35) E.L.T. 241 (S.C.), held that once the goods go out of Indian Territorial Water, export is complete. 7. The Customs Department have charged import duty on the subject goods, indicating that on due investigation, they have ascertained that the goods were taken out of Indian Territorial Water, resulting in export of goods, as has been held by the Supreme Court in the said judgment. 8. Section 20 of the Customs Act, 1962 (as it then existed) makes special provisions when the goods manufactured in India are duly exported and re-imported and provides that they would be subject to same terms and conditions as are applicable to the goods of foreign origin. Proviso to Sub-section (1) of Section 20 is however, added to provide that if the goods are imported within 3 years after export, then, the Customs Duty equal to the Excise duty chargeable or drawback claimed should be charged. Clause (c) in the said proviso specifically provides for the goods exported under Bond without payment of duty and lays down, amongst others, that the Customs duty chargeable should be equal to excise duty leviable. The present case stands covered under Clause (c) (iii) in the said proviso. 9. When the customs duty has been collected vide proviso to Section 20(1) of the Customs Act, taking the export having already been effected and bring back of the goods tantamount to importation, there is no cause to allege that exportation had not taken place and hence, excise duty was chargeable. The ground raised gets its clear answer in the judgment of the Supreme Court referred to above. 10. Raising the demand for the excise duty therefore, does not appear justified and cannot be sustained. The order of the authority below therefore cannot be sustained and is set aside. 11. In the result, the appeal is allowed with consequential reliefs.

Steelage Industries Ltd. vs Collector Of Central Excise on 28 June, 1996

Customs, Excise and Gold Tribunal - Mumbai

IN THE HIGH COURT OF KERALA AT ERNAKULAM RFA.No. 563 of 2004() 1. KERALA WATER AUTHORITY, ... Petitioner Vs 1. M/S. TRIO BUILDERS, ... Respondent 2. P.VISHWANATHAN, S/O. PADMANABHAN, 3. G.SUNDARESHAN, AGED 54 YEARS, For Petitioner :SRI.M.DINESH, SC, KWA For Respondent :SRI.P.JACOB VARGHESE (SR.) SHRI K.J.THOMAS STANLEY(RETD.ADDL.DIST.JUDGE) Dated :08/09/2009 O R D E R Dated 8th September 2009 JUDGMENT SRI.M.R.RAJENDRAN NAIR (SENIOR ADVOCATE, HIGH COURT OF KERALA) & SRI.M.T.BALAN (RETD. DISTRICT JUDGE) ================================== R.F.A.No.563 of 2004 ================================== Dated this the 8th day of September, 2009 AWARD This is an appeal filed by the Kerala Water Authority against the decree dated 31.01.2003 in O.S.No.1411/94 on the file of the Principal Sub Court, Thiruvananthapuram, according to which the decree was passed for payment of Rs.30,81,318 + Rs.10,91,378 totaling Rs. 41,72,696/- as damages to the plaintiff with interest at the rate of 9% from the date of suit till the date of decree with future interest at the rate of 6% till the date of realisation with costs. When the matter came up before the Adalat parties took time for settling the matter out of court. In the meanwhile there was a memorandum of understanding dated 18.11.2004 between the parties, according to which it was agreed that the contractor will be accepting the principal amount with interest at the reduced rate as full and final settlement of the entire decree amount and he will not make any further claim whatsoever. It was also agreed that the contractor  R.F.A.No.563/2004 2 will produce all the relevant records so as to enable the Authority to make payment on behalf of the firm as well as the decree holders. During conciliation before the Adalat the Water Authority in its 325th meeting held on 24.08.2009 authorised the Managing Director of the Kerala Water Authority for an amicable settlement in the Lok Adalat and to arrive at an amount based on memorandum of understanding dated 18.11.2004 between M/s.TRIO Builders and Kerala Water Authority. As such Managing Director along with Superintending Engineer, P.H.Circle, Kollam has discussed the matter with Trio Builders on 31.8.2009 at the Managing Director's chamber. After discussion both the parties agreed to settle the issue on a compromise formula, according to which all the claims till the date of memorandum of understanding shall be based on that memorandum of understanding and the future interest from the date of memorandum of understanding shall be worked out at 1.5% per annum on the decree amount and the amount will be paid to the party (plaintiff) within 45 days. Today, when the matter came up before us parties were requested to arrive at an exact amount which will be paid to the  R.F.A.No.563/2004 3 plaintiff in full and final satisfaction of the decree. Accordingly, parties have reported before us that a sum of Rs.62,28,620/- made up of principal amount of Rs.41,72,696/- and interest Rs.20,55,924/- as on 8.09.2009 will be paid to the plaintiff- M/s.Trio Builders within 45 days from today ie., on or before 22.10.2009 in full and final satisfaction of the entire decree. In case the amount is not paid as agreed to, within the due date it will be open for the plaintiff(decree holder) to execute the decree as it is. Stay of execution granted in this proceedings will stand vacated on consent. The bank guarantee furnished by the Kerala Water Authority will stand discharged on payment of Rs.62,28,620/- within the time mentioned above. The entire court fee paid by the appellant before the High Court will be refunded to the appellant as per rules. M.R.RAJENDRAN NAIR (SENIOR ADVOCATE, HIGH COURT OF KERALA) M.T.BALAN (RETD. DISTRICT JUDGE) dvs  ? IN THE HIGH COURT OF KERALA AT ERNAKULAM +WP(C).No. 25338 of 2009(Q) #1. VILASINI.P.S,W/O.SASI,AGED 46 YEARS, ... Petitioner 2. RAJU PUZHANKARA, Vs $1. STATE OF KERALA,REPRESENTED BY SECRETARY ... Respondent 2. DIRECTOR GENERAL OF POLICE(LAW AND ORDER 3. THE INSPECTOR GENERAL OF POLICE, 4. SRI.VINSON.M.PAUL,THE INSPECTOR GENERAL 5. SUB INSPECTOR OF POLICE,NEDUMUDI POLICE 6. JOINT DIRECTOR,CENTRAL BUREAU OF 7. THE SUPERINTENDENT,CENTRAL BUREAU ! For Petitioner :SRI.K.P.RAMACHANDRAN ^ For Respondent : No Appearance *Coram The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR % Dated :08/09/2009 : O R D E R M.SASIDHARAN NAMBIAR,J. ------------------------------------------ W.P.C.NO. 25338 OF 2009 ------------------------------------------ Learned counsel appearing for petitioners and learned Director General of Prosecution were heard. Learned Director General of Prosecution submitted that case is being investigated properly and investigation will not be influenced by any external agency or person. I do not find that at this initial stage any direction is to be issued by this court. If circumstances warranted at a later stage, petitioners are entitled to approach the court for appropriate relief. Petition is disposed. M.SASIDHARAN NAMBIAR, JUDGE. uj.

Kerala Water Authority vs M/S. Trio Builders on 8 September, 2009

Kerala High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C) No. 36827 of 2004(H) 1. MALAYIKKADA HANDLOOM WEAVERS ... Petitioner Vs 1. STATE OF KERALA, ... Respondent 2. THE DIRECTOR OF HANDLOOMS & TAXTILES, 3. THE GENERAL MANAGER, For Petitioner :SRI.M.K.DILEEP KUMAR For Respondent : No Appearance The Hon'ble MR. Justice KURIAN JOSEPH Dated :28/02/2007 O R D E R KURIAN JOSEPH, J. ---------------------------------------------- W.P.(C) No.36827 of 2004 ---------------------------------------------- Dated 28th February, 2007. J U D G M E N T Petitioner society is aggrieved since the rebate as claimed by the petitioner was refused. Ext.P7 is the order passed by the Government. The stand taken by the Government is that as per the norms, the eligible amounts were sanctioned and paid. It is also stated in the impugned Ext.P7 order that the claims are exorbitant and not as a result of genuine retail sales for which rebate is admissible. Thus it is fairly clear that there is a dispute on facts. It is for the petitioner to take recourse to the remedy before the civil court to establish the genuineness of the claim. Without prejudice to such liberty, this writ petition is dismissed. It is made clear that in the event of the petitioner approaching the civil court as above, the time taken for prosecuting this writ petition shall stand excluded in computing the period of limitation. KURIAN JOSEPH, JUDGE. tgs  KURIAN JOSEPH, J ---------------------------------------------- O.P.No. of 2002 ----------------------------------------------

Malayikkada Handloom Weavers vs State Of Kerala on 28 February, 2007

Kerala High Court

Gujarat High Court Case Information System Print FA/610/1996 5/ 5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 610 of 1996 For Approval and Signature: HONOURABLE MR.JUSTICE R.P.DHOLAKIA HONOURABLE MR.JUSTICE Z.K.SAIYED ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= ORIENTAL INSURANCE CO LTD - Appellant(s) Versus MEERABEN K SINDHI & 8 - Defendant(s) ========================================================= Appearance : MR KK NAIR for Appellant(s) : 1, MR JITENDRA M PATEL for Defendant(s) : 1 - 7. - for Defendant(s) : 8, ========================================================= CORAM : HONOURABLE MR.JUSTICE R.P.DHOLAKIA and HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 10/11/2008 ORAL JUDGMENT(Per : HONOURABLE MR.JUSTICE R.P.DHOLAKIA) 1. The appellant Ori. Opponent no. 2 The Oriental Insurance Company Limited has preferred this appeal against the judgment and award dated 13th October, 1995, passed by the MAC Tribunal (Auxi.), Vadodara in MAC Petition No. 121 of 1987. 2. The present appellant ori. Opponent no. 2 with whom the vehicle in question, that is, motor truck bearing registering No. GTT-7672 has been insured and as per the evidence on record, the said vehicle was insured for a period from 1.5.1986 to 30.4.1987. The said vehicle has been involved in the accident in question and as a result of which, deceased Keshumal Sindhi has received serious injuries and ultimately he succumbed to the injuries and, therefore, heirs and legal representatives of the deceased have filed MAC Petition No. 121/1987 before the Motor Accident Claims Tribunal (Auxi.) Vadodara. After recording the evidence and giving opportunity of hearing to the learned advocates appearing for the respective parties, the learned Tribunal has delivered the judgment and award on 13th october, 1995, whereby, the learned Tribunal has awarded an amount of Rs. 5,90,000/- in favour of original claimants along with the proportionate costs and interest at the rate of 15% p.a. from the date of the application till realisation. Being aggrieved and dissatisfied with the same, the appellant Insurance Company has preferred this appeal in the year 1996, but, somehow, notice could not be served upon ori. Opponent no. 1 Kamlasinh Chadulal Chaudhary, driver-cum-owner of the vehicle in question, who is opponent no. 9 in this appeal, from 1996 to 10th November, 2008, and, therefore, the office has placed this matter for hearing on Board. 3. Mr. Nair learned advocate appearing for the appellant Insurance Company has shown his willingness to argue the appeal on merits, irrespective of the fact that opponent no. 9 is not served till date. Mr. Nair has mainly argued on the ground that their contention was technical one and limited to the liability. 4. We have heard Mr Nair learned advocate appearing for the appellant Insurance Company. He has restricted his argument to the limited point, that is, as per the terms and conditions of the policy Ex. 62, third party liability of the Insurance Company is limited one, that is, up to Rs. 1,50,000/- only, for which, learned counsel Mr. Nair has taken us through the relevant discussion made by the leaned Tribunal in paras-30,31,32,33 and 34 of the impugned judgment and award, whereby, the learned Tribunal has come to the conclusion that the liability of the Insurance Company is unlimited, for which, the learned Tribunal has taken into consideration the Policy Ex. 62 and the oral evidence of Vinod Dayabhai Patel, who was Assistant Divisional Manager, Vadodara Branch, at the relevant time. The oral evidence of this witness was recorded and this witness has produced the copy of policy at Exh. 62 which was proved by him. He has categorically admitted that the vehicle in question was insured with the Insurance Company for a period from 1.5.1986 to 30.4.1987. In his cross-examination, he has categorically stated that Rs. 240/- has been shown as premium for third party risk and Rs. 48/- is the premium for six coolly and Rs. 16/- is the premium for driver and cleaner. He has categorically deposed that in this policy, risk of the Insurance Company is limited, that is, up to Rs. 1,50,000/- and also deposed that for the purpose of unlimited liability, they will have to pay the premium of Rs. 150/-. This witness has been cross-examined by the learned advocate for the ori. Claimants at length, wherein, he has categorically admitted that the policy which has been produced by him at Ex. 62 does not show that risk is limited one that is up to Rs. 1,50,000/. He has also admitted that there is a contract but contract also does not show the limited liability. He has also admitted in his cross-examination that Insurance Company is having the contract with them, but record shows that he has not produced the contract either before the learned Tribunal or before this Court. So, as per the evidence on record, that is, evidence of the Insurance Company, a responsible office like Assistant Divisional Manager who has deposed before the learned Tribunal on oath and after verifying the policy, he has categorically admitted that it is a policy of unlimited liability and contract is also for unlimited liability and contract has not been produced on record. Not only that, we have also gone through the policy Exh. 62 and we are of the opinion that the policy is for unlimited liability and the learned Tribunal has rightly dealt with the same in detail in paras no. 30,31,32,33 and 34 of the impugned judgment and award and, therefore, it is not required to be reproduced the same here when we fully agree with the findings given by the learned Tribunal on facts as well as on law, therefore, the present appeal requires to be dismissed. No other arguments are advanced by Mr. Nair on other grounds, and, therefore, this Court has not dealt with other grounds. 5. In the result, this appeal is dismissed. The impugned judgment and award dated 13.10.1995 passed by the learned MAC Tribunal (Auxi.) Vadodara, in MAC Petition No. 121/1987 is hereby confirmed. (R.P. DHOLAKIA, J.) (Z.K. SAIYED, J.) mandora/     Top

Author: R.P.Dholakia,&Nbsp;Honourable Mr.Justice Z.K.Saiyed,&Nbsp;

Oriental vs Meeraben on 10 November, 2008

Gujarat High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C) No. 15259 of 2005(N) 1. RAJAN, SON OF RAVEENDRAN, ... Petitioner Vs 1. DR. P.K.PEETHAMBARAN, ... Respondent 2. CITY CORPORATION OF THIRUVANANTHAPURAM, For Petitioner :SRI.V.SURESH For Respondent :SRI.N.NANDAKUMARA MENON,SC,TVM CORPN. The Hon'ble MR. Justice PIUS C.KURIAKOSE Dated :24/07/2007 O R D E R PIUS C. KURIAKOSE,J. - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.15259 of 2005 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 24th July, 2007 JUDGMENT srd PIUS C.KURIAKOSE, JUDGE  Ext.P4 order by which the learned Munsiff allowed an application for impleadment filed by the owner-landlord of the building in question presently under the occupation of the petitioner is under challenge. The submissions of Mr.G.Sudheer, counsel for the petitioner notwithstanding, I am unable to agree that Ext.P4 is vitiated to the extent of warranting correction by this court under its visitorial jurisdiction. It cannot be said that the landlord of the building is not even a proper party to the litigation. The challenge against Ext.P4 fails and the Writ Petition is dismissed.

Rajan vs Dr. P.K.Peethambaran on 24 July, 2007

Kerala High Court

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Dinesh Kumar And Others vs State Of U.P. And Others on 12 August, 2010

Allahabad High Court

Narainsingh & under Section 304, Part II, IPC, 5 year's R.I. Moharsingh under 323, IPC 3 month's R.I. JUDGMENT Guman Mal Lodha, J. 1. This appeal is directed against the judgment of the trial court whereby the appellants, namely, Mohar Singh and Narain Singh, were convicted and sentenced as under: 2. A short point has been argued by Sri B.K. Pathak, the learned Counsel for the appellants, but with great nicety that the offence cannot travel beyond Section 325, IPC on the assumption that the finding of the trial court regarding appellants joining at the house of Kishansingh and coming out together with lathi and heading the deceased, are correct. 3. Developing his submission, Shri Pathak pointed out that fatal injury has been caused by Kishansingh who is not appellant in this appeal and has already been convicted by separate trial earlier. These appellants of this appeal are said to be authors of the injuries which are simple in nature. 4. An important feature of this case is that the present two appellants, Narainsingh and Moharsingh are not related to Kishansingh nor live in the same house and nearby, and the prosecution has not shown as to how they came in the house of Kishansingh and what was was the motive of joining Kishansingh accused. 5. Shri Pathak then argued that as a matter of fact only simple injuries were caused by the present appellants and, therefore, they are liable for the offence under Section 325, IPC. 6. Shri S.B. Mathur, the learned Public Prosecutor has opposed the appeal and according to him, all are responsible for the act of Kishansingh accused and as they came together and with common object, they, by virtue of Section 34, IPC, are liable for the injuries on the person of the deceased inflicted by Kishansingh accused, which resulted in the death of Sukha (deceased). 7. I have carefully considered the rival contentions of the learned Counsel for the parties. It would be pertinent to refer to the judgment in Ghariby v. State AIR 1953 Allahabad 421 wherein the observations of Full Bench decision in State v. Saidu Khan AIR 1951 Raj. 21 were extracted and those observations were of the then Justice wanchoo who ultimately adorned to the office of the, Chief Justice of India. Para 9 reads as under: If we now turn to Section 304, Penal Code, we find that before a person can be convicted under the latter part of that section, the court must record a finding that the act which caused death was done with the knowledge that it was likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death. Accordingly if four persons attack another with lathis, with the common intention of beating him, we have an illustration of a criminal act done by several persons in furtherance. of the common intention of all. If death is caused as a result of one of the injuries inflicted by some one of these persons, they would all be surely guilty under Section 325, Penal Code, in view of the provisions of Section 34. The question may arise, if they can be held gulity of the graver offence under Section 304, Penal Code. It will be seen that a particular knowledge is an essential ingredient of the offence under Section 304, latter part. Unless a court can record a finding that an accused person had the knowledge that the act done by him and his companion was likely to cause death, the accused cannot be rightly held guilty under Section 304, Second part. This was the view taken by a Full Bench of our court in State v. Saidu Khan AIR 1951 Raj. 21(A). At page 43 of the report Wanchoo, J. observed as follows: I am, therefore, of opinion that it is possible to,convict an accused person of an offence under Section 304, Part II, read with Section 34, Penal Code, provided the court is of the opinion that each person taking part in committing the crime in furtherance of the common intention of all had knowledge that their act was likely to cause death. This is my answer to the first question. The first question referred to the Full Bench was, "Whether it is possible to convict an accused person of an offence under Section 304, Part II, read with Section 34, Penal Code. 8. In the light of the above observations, let me examine ingredients and import of Section 34, IPC which read as under: 34. Acts done by several persons in furtherance of common intention : When a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone. 9. In the treatise, 'Indian Penal Code' by All India Reporter Ltd. Nagpur (Vol. 1) (W.W. Chitaley & V.E. Bakhale 3rd Edn.) at page 161, thp authors have discussed the import of Section 34, IPC, as under: Suppose, on the evidence, the court comes to the conclusion that A, B and C only planned to do such acts as could be expected to cause grievous hurt. In such a case, although death is actually caused as a result of the attack on D, this section will not apply and the assailants will not be liable for the death. The reason is that the doing of an act causing the death of D was not within the scope of their design. If the court finds that any one of the assailants was responsible for the death, he alone will be liable for the death; and the others will be liable only for causing grievous hurt. Thus the same criminal act may give rise to two offences (1) grievous hurt and (2) culpable homicide. This shows that the expressions "criminal act" and "offence" do not mean the same thing for the purpose of this section. When it is said that several persons do "a criminal act" in furtherance of their common intention, the meaning is not that they commit an "offence" in furtherance of their common intention. It is not an offence that they plan or carry out. But it is an act or series of acts that they plan and carry out. The offence or "offences" are committed in the course of their carrying out their criminal design. When determining the question whether this section applies to a case, what has to be seen is whether a "criminal act" as explained above was planned and whether the act which constituted the offence which has been actually committed fell within the purview of that plan. In other words, the questions are (a) what was the kind of act planned, (b) what was the act actually done and (c) whether such act was of the kind planned. If the act done is of the same kind that was planned, then this section will apply and every member of the group will be liable for whatever offences is constituted by the act done in the same manner and to the same extent as the actual doer of such act. 10. Three questions posed were, (a) what was the kind of act planned, (b) what was the act actually done and, (c) whether such act was of the kind planned. Thereafter, their answers were given as noted above. 11. Shri S.B. Mathur, on the contrary, placed reliance upon the decision of the Apex Court in Mor Bhanna Sida v. State of Gujarat where in while dealing with import of Section 304, Part 2, IPC, their Lordships of the Apex Court observed that inference regarding common intention to cause injuries which were likely to cause death, inference can be drawn from the number of injuries caused, the circumstances in which they came to be caused and the ferocity of the attack on the deceased; that, all persons participating in such attack would be imputed with the knowledge that they were likely to cause injuries which were likely to cause death; and factual and medical evidence in that case, their Lordships held that the accused must be convicted under Section 304, Part II read with Section 34, IPC. 12. In the present case, it has not come on record that the accused party (all appellants along with Kishansingh) planned to commit the murder of Sukha. That can easily be inferred because the trial court has not convicted this accused Kishansingh for the offence under Section 302 but convicted them under Section 304, Part II, IPC. Section 304 Part II, IPC reads as under: 304. Punishment for culpable homicide not amounting to murder.--Whoever commits culpable homicide not amounting to murder, shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death; or...with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause such death but without any intention to cause death or to cause such bodily injury as is likely to cause death. 13. Now since there was no intention to cause death the plan of the accused being not there, only question to be considered is what was the act done. Obviously the act done by Kishansingh accused causing fatal injuries was not according to the common plan of all the accused. Kishnsingh accused can be attributed knowledge of causing such injuries which would result in causing death ordinarily but that knowledge cannot be extended by any legal fiction to the present appellants, because Section 34, IPC, contemplates common intention. In view of the above, the conviction of these appellants cannot be sustained under Section 304 Part II, IPC. These accused appellants can be attributed intention to cause grievous injuries which were caused by Kishansingh accused, and therefore, for that they can be held guilty under Section 325, IPC. The appellants have been convicted and sentenced by the trial court for 5 year's R.I. Their conviction and sentence are altered from Section 304 Part (II), IPC, to Section 325, IPC. 14. In the result, this appeal is partly allowed to the extent that while maintaining the conviction and sentence of the accused-appellants Under Section 323, IPC, their conviction is altered from Section 304, Part II IPC to Section 325, IPC, they are sentenced to undergo 2 years R.I. and to pay a fine of Rs. 1000/-each. The appellants would be entitled to the benefit of Section 428 Cr. PC. The appellants are on bail. They shall surrender to their bail bonds. The trial court is directed to execute the sentence upon the appellants according to law.

Author: G M Lodha

Mohar Singh And Narain Singh vs State Of Rajasthan on 27 February, 1986

Rajasthan High Court

JUDGMENT Vikramajit Sen, J. 1. The Petitioner has invoked the extraordinary jurisdiction of this Court bestowed by Article 226 of the Constitution praying for the following reliefs. (a) issue an appropriate writ in the nature of prohibition or any other appropriate writ or direction restraining the respondents 1 and 2from acting in terms of the impugned letters dated 26.7.97 (Annexs. P-9 Colly.); (b) issue an appropriate writ(s) in the nature of certiorari by calling for the records and quashing the impugned letters of repudiation dated the 26th July, 1997 (Annexs. (P-9 Colly); (c ) issue an appropriate writ(s) in the nature of mandamus directing the respondents No.1 and 2 to make payments against the Bank Guarantees being Annexs P-5 (Colly.); (d) issue an appropriate writ(s) in the nature of certiorary by calling for the records and quashing the impugned letters of repudiation dated 26.7.97 (Annexs. P-9 Colly); (e) issue an appropriate writ in the nature of prohibition or any other appropriate writ or direction restraining the respondents No.1 and 2 from acting in terms of the impugned letters dated 26.7.97 (Annexs. P-9 Colly.); (f) issue such appropriate writ(s) as to this Hon'ble Court may deem fit and proper in the facts and circumstances of the case; (g) issue rule nisi; (h) make the said rule absolute after return of notice, and (i) pass such further or other order(s) as this Hon'ble Court may deem fit and proper for the ends of justice. 2. Preliminary objections have been raised by the Punjab & Sind Bank (Respondents 1 and 2 herein) asserting that the writ petition is not maintainable as the matter involves frauds, conspiracy and the forgery of several Bank Guarantees in respect of which First Information Reports had been lodged by the Bank. The Bank Guarantees have allegedly been procured by Respondents 3 and 4 by circumventing the procedure established by the Bank. It is submitted by the Bank that the question of issue of Bank Guarantees is a contractual obligation of the parties and for this reason ought not to be adjudicated in the writ forum; the writ petition is not maintainable even otherwise since there is an efficacious remedy available to the Petitioners by way of a civil suit in which the various questions which have arisen can be adjudicated on the basis of evidence. Mention has also been made by the Bank to the complaint lodged by the Petitioners before the Banking Ombudsman which had rejected it and had declined to intervene in the legal wrangle in view of the allegations of fraud, cheating and forgery which is the subject matter of investigation by the Police. The Petitioner has itself annexed the FIR dated 24.7.1997 in which it has also been brought to the notice of the Police that the Manager who had allegedly executed the Bank Guarantees, is absconding. 3. The facts in brief are that the Plaintiff had supplied steel to Respondents 3 and 4 against their furnishing Bank Guarantees as an additional security. It appears that the cheques forwarded by these Respondents were dishonoured and these Respondents are no longer locatable. A civil suit for the recovery of the sale price has been filed by the Petitioner against Respondents 3 and 4 in which the Bank is not a party. 4. The law pertaining to Bank Guarantees has been spelt out in great detail by the Hon'ble Supreme Court in a catena of cases. The Hon'ble Supreme Court has explained and enunciated the law on this interesting and important aspect of law on several occasions. In Centax (India) Ltd. v. Vinmar Impex Inc. and Ors., it has been stated that a Bank Guarantee resembles and is analogous to Letters of Credit and would therefore attract similar jural considerations and handling. The Hon'ble Supreme Court has in Tarapore and Co., Madras v. V.O Tractors Export Moscow and Anr., elaborately and perspicuously explained the scope and ambit of judicial interference in matters concerning Letter of Credit and Bank Guarantee in these words-- The scope of an irrevocable letter of credit is explained thus in Halsbury's Laws of England (Vol.34, Paragraph 319 at page 185): "It is often made a condition of a mercantile contract that the buyer shall pay for the goods by means of a confirmed credit, and it is then the duty of the buyer to procure his bank, known as the issuing or originating bank, to issue an irrevocable credit in favor of the seller by which the bank undertakes to the seller, either directly or through another bank in the seller's country known as the correspondent or negotiating bank, to accept drafts drawn upon it for the price of the goods, against tender by the seller of the shipping documents. The contractual relationship between the issuing bank and the buyer is defined by the terms of the agreement between them under which the letter opening the credit is issued; and as between the seller and the bank, the issue of the credit duly notified to the seller creates a new contractual nexus and renders the bank directly liable to the seller to pay the purchase price or to accept the bill of exchange upon tender of the documents. The contract thus created between the seller and the bank is separate from, although ancillary to, the original contract between the buyer and the seller, by reason of the bank's undertaking to the seller, which is absolute. Thus the bank is not entitled to rely upon terms of the contract between the buyer and the seller which might permit the buyer to reject the goods and to refuse payment therefor; and, conversely, the buyer is not entitled to an injunction restraining the seller from dealing with the letter of credit if the goods are defective." Chalmers on "Bills of Exchange" explains the legal position in these words "The modern commercial credit serves to interpose between a buyer and seller a third person of un-questioned solvency, almost invariably a banker of international repute; the banker on the instructions of the buyer issues the letter of credit and thereby undertakes to act as paymaster upon the seller performing the conditions set out in it. A letter of credit may be in any one of a number of specialised forms and contains the undertaking of the banker to honour all bills of exchange drawn there under. It can hardly be over-emphasised that the banker is not bound or entitled to honour such bills of exchange unless they, and such accompanying documents as may be required there under, are in exact compliance with the terms of the credit. Such documents must be scrutanised with meticulous care, the maxim de minimis non curat lex cannot be invoked where payment is made by the letter of credit. If the seller has complied with the terms of the letter of credit, however, there is an absolute obligation upon the banker to pay irrespective of any disputes there may be between the buyer and the seller as to whether the goods are up to contract or not" Similar are the views expressed in `Practice and Law of Banking' by H.B. Sheldon, "the Law of Bankers Commercial Credits" by H.C. Gutteridge,"the Law relating to Commercial Letters of Credit" by A.G. Devis' "the Law Relating to Bankers' Letters of Credit" by B.C. Mitra and in several other text books read to us by Mr. Mohan Kumaramangalam, learned Counsel for the Russian Firm. The legal position as set out above was not controverter by Mr. M.C. Satalvad, learned Counsel for the Indian Firm. So far as the Bank of India is concerned it admitted its liability to honour the letter of credit and expressed its willingness to abide by its terms. It took the same position before the High Court. 10. A case somewhat similar to the one before us came up for consideration before the Queens Bench Division in England in Hamzeh Walas and Sons v. British Imex Industries Ltd., 1958-2 QB 127. Therein the plaintiffs, a Jordanian firm contracted to purchase from the defendants, a British firm, a large quantity of reinforced steel rods, to be delivered in two Installments. Payment was to be effected by opening in favor of the defendants of two confirmed letters of credit with the Midland Bank Ltd., in London, one in respect of each Installment. The letters of credit were duly opened and the first was realised by the defendants on the delivery of the first Installment. The plaintiffs complained that that Installment was defective and sought an injunction to bar the defendants from realizing the second letter of credit. Donovan, J., the Trial Judge refused the application. In appeal Jenkins, Sellers and Pearce L., JJ. Confirmed the decision of the Trial Judge. In the course of his judgment Jenkins, L.J., who spoke for the Court observed thus: "We have been referred to a number of authorities, and it seems to be plain enough that the opening of a confirmed letter of credit constitutes a bargain between the banker and the vendor of the goods, which imposes upon the banker an absolute obligation to pay, irrespective of any dispute there may be between the parties as to whether the goods are up to contract or not. An elaborate commercial system has been built up on the footing that bankers' confirmed credits are of that character, and, in my judgment, it would be wrong for this Court in the present case to interfere with that established practice. There is this to be remembered, too. A vendor of goods selling against a confirmed letter of credit is selling under the assurance that nothing will prevent him from receiving the price. That is of no mean advantage when goods manufactured in one country are being sold in another. It is, furthermore, to be observed that vendors are often reselling goods bought from third parties. When they are doing that, and when they are being paid by a confirmed letter of credit, their practice is - and I think it was followed by the defendants in this case--to finance the payments necessary to be made to their suppliers against the letter of credit. That system of financing these operations, as I see it, would break down completely if a dispute as between the vendor and the purchaser was to have the effect of "freezing" if I may use that expression the sum in respect of which the letter of credit was opened." In Urquhart Lindsay and Co. Ltd. v. Eastern Bank Ltd., 1922-1 KB 318 the King's Bench held that the refusal of the defendants bank to take and pay for the particular bills on presentation of the proper documents constituted a repudiation of the contract as a whole and that the plaintiffs were entitled to damages arising from such a breach. It may be noted that in that case the price quoted in the invoices was objected to by the buyer and he had notified his objection to the bank. But under the terms of the letter of credit the bank was required to make payments on the basis of the invoices tendered by the seller. The court held that if the buyers had an enforceable claim that adjustment must be made by way of refund by the seller and not by the way of retention by the buyer. 11. Similar opinions have been expressed by the American Courts. The leading American case on the subject is Dulien Steel Products Inc., of Washington v. Bankers Trust Co., Federal Reporter 2nd Series, 298 p.836. The facts of that case are as follows: The plaintiffs, Dulien Steel Products Inc., of Washington, contracted to sell steel scrap to the European Iron and Steel Company. The transaction was put through M/s. Marco Polo Group Project, Ltd. who were entitled to commission for arranging the transaction. For the payment of the the commission to Marco Polo, plaintiffs procured an irrevocable letter of credit from Seattle First National Bank. As desired by Marco Polo this letter of credit was opened in favor of one Sica. The defendant-bankers confirmed that letter of credit. The credit stipulated for payment against (1) a receipt of Sica for the amount of the credit and (2) a notification of Seattle Bank to the defendants that the plaintiffs had negotiated documents evidencing the shipment of the goods. Sica tendered the stipulated receipt and Seattle Bank informed the defendants that the Dulien had negotiated documentary drafts. Meanwhile after further negotiations between the plaintiffs and the vendees the price of the goods sold was reduced and consequently the commission payable to Marco Polo stood reduced but the defendants were not informed of this fact. Only after notifying the defendants about the negotiation of the drafts drawn under the contract of sale, the Seattle Bank informed the defendants about the changes underlying the transaction and asked them not to pay Sica the full amount of the credit. The defendants were also informed that Sica was merely a nominee of Marco Polo and has no rights of his own to the sum of the credit. Sica, however, claimed payment of the full amount of the credit. The defendants asked further instructions from Seattle Bank but despite Seattle Bank's instructions decided to comply with Sica's request. After informing Seattle Bank of their intention, they paid Sica the full amount of the credit. Plaintiffs thereupon brought an action in the District Court of New York for the recovery of the moneys paid to Sica. The action was dismissed by the trial Court and that decision was affirmed by the Court of Appeals. That decision establishes the well known principle that the letter of credit is independent of and unqualified by the contract of sale or underlying transaction. The autonomy of an irrevocable letter of credit is entitled to protection. As a rule Courts refrain from interfering with that autonomy. 5. In United Commercial Bank v. Bank of India and Ors., , the Apex Court has reiterated that Courts ought not to grant injunctions restraining the performance of the contractual obligations flowing out of a Letter of Credit or a Bank Guarantee between one Bank and another. It observed that - The opening of a confirmed letter of credit constitutes a bargain between the banker and the vendor of the goods which imposes on the banker an absolute obligation to pay. A banker issuing or confirming an irrevocable credit usually undertakes to honour drafts negotiated, or to reimburse in respect of drafts paid, by the paying or negotiating intermediate banker and the credit is thus in the hands of the beneficiary binding against the banker. A letter of credit constitute the sole contract with the banker and a bank issuing or confirming a letter of credit is not concerned with the underlying contract between the buyer an seller. Duties of a bank under a letter of credit are created by the document itself, but in any case it has the power and is subject to the limitations which are given or imposed by it, in the absence of the appropriate provisions in the letter of credit. The banker owes a duty to the buyer to ensure that the documents tendered by the sellers under a credit are complied with those for which the credit calls and which are embodied in terms of paying or negotiating bank The description of the goods in the relative bill of exchange must be the same description in the letter of credit, that it, the goods themselves must in each be described in identical terms, even though the goods differently described in the two documents are, in fact, the same. It is the description of the goods that is all important and if the description is not identical it is the paying bank's duty to refuse payment. 6. The following paragraphs of the Judgment in U.P. Coop. Federation v. Singh Consultants and Engineers (P) Ltd., is extremely instructive: 45. The letter of credit has been developed over hundreds of years of international trade. It was most commonly used in conjunction with the sale of goods between geographically distant parties. It was intended to facilitate the transfer of goods between distant and unfamiliar buyer and seller. It was found difficult for the seller to rely upon the credit of an unknown customer. It was also found difficult for a buyer to pay for goods prior to their delivery. The Bank's letter of credit came into existence to bridge this gap. In such transactions, the seller (beneficiary) received payment from issuing bank when he presents a demand as per terms of the documents. The bank must pay if the documents are in order and the terms of credit are satisfied. The bank, however, was not allowed to determine whether the seller had actually shipped the goods or whether the goods conformed to the requirements of the contract. Any dispute between the buyer and the seller must be settled between themselves. The courts, however, carved out an exception to this rule of absolute independence. The courts held that if there has been fraud in the transaction the bank could dishonour beneficiary's demand for payment. The courts have generally permitted dishonour only on the fraud of the beneficiary, not the fraud of somebody else. 46. It was perhaps for the first time the said exception of fraud to the rule of absolute independence of the letter of credit has been applied by Shientag, J. in the American case of Sztejn v. J.Henry Schroder Banking Corporation (31 NYS 2d 631). Mr.Sztejn wanted to buy some bristles from India and so he entered into a deal with an Indian seller to sell him a quantity. The issuing Bank issued a letter of credit to the Indian seller that provided that, upon receipt of appropriate documents, the bank would pay for the shipment. Somehow, Mr.Sztejn discovered that the shipment made was not crates of bristles, but creates of worthless material and rubbish. He went to his bank which probably informed him that the letter of credit was an independent undertaking of the bank and it must pay. 53. Whether it is a traditional letter of credit or a new device like performance bond or performance guarantee, the obligation of banks appears to be the same. If documentary credits are irrevocable and independent, the banks must pay when demand is made. Since the bank pledges its own credit involving its reputation, it has no defense except in the case of fraud. The bank's obligations of course should not be extended to protect the unscrupulous seller, that is, the seller who is responsible for the fraud. But, the banker must be sure of his ground before declining to pay. The nature of the fraud that the courts talk about is fraud of an egregious nature as to vitiate the entire underlying transaction. It is fraud of the beneficiary, not the fraud of somebody else. If the bank detects with a minimal investigation the fraudulent action of the seller, the payment could be refused. The bank cannot be compelled to honour the credit in such cases. But it may be very difficult for the bank to take a decision on the alleged fraudulent action. In such cases, it would be proper for the bank to ask the buyer to approach the court for an injunction. 7. In Hindustan Steel Works Construction Ltd. V. Tarapore and Co., , the following observations are made: We are, therefore, of the opinion that the correct position of law is that commitment of banks must be honoured free from interference by the courts and it is only in exceptional cases, that is to say, in case of fraud or in a case where irretrievable injustice would be done if bank guarantee is allowed to be encashed, the court should interfere. In this case fraud has not been pleaded and the relief for injunction was sought by the contractor/Respondent 1 on the ground that special equities or the special circumstances of the case required it. The special circumstances and/or special equities which have been pleaded in this case are that there is a serious dispute on the question as to who has committed breach of the contract, that the contractor has a counter-claim against the appellant, that the disputes between the parties have been referred to the arbitrators and that no amount can be said to be due and payable by the contractor to the appellant till the arbitrators declare their award. In our opinion, these factors are not sufficient to make this case an exceptional case justifying interference by restraining the appellant from enforcing the bank guarantees. The High Court was, therefore, not right in restraining the appellant from enforcing the bank guarantees. 8. In U.P. State Sugar Corporation v. Sumac International Limited, the circumstances in which the invocation of a Bank Guarantee or payments made pursuant thereto could be interdicted, had been Restated. While spelling out the essentials of fraud and/or irretrievable injustice in this context, the Apex Court had returned the following observations:- 12. The law relating to invocation of such bank guarantees is by now well settled. When in the course of commercial dealings an unconditional bank guarantee is given or accepted, the beneficiary is entitled to realize such a bank guarantee in terms thereof irrespective of any pending disputes. The bank giving such a guarantee is bound to honour it as per its terms irrespective of any dispute raised by its customer. The very purpose of giving such a bank guarantee would otherwise be defeated. The courts should, therefore, be slow in granting an injunction to restrain the realization of such a bank guarantee. The courts have carved out only two exceptions. A fraud in connection with such a bank guarantee would vitiate the very foundation of such a bank guarantee. Hence if there is such a fraud of which the beneficiary seeks to take advantage, he can be restrained from doing so. The second exception relates to cases where allowing the encashment of an unconditional bank guarantee would result in irretrievable harm or injustice to one of the parties concerned. Since in most cases payment of money under such a bank guarantee would adversely affect the bank and its customer at whose instance the guarantee is given, the harm or injustice contemplated under this head must be of such an exceptional and irretrievable nature as would override the terms of the guarantee and the adverse effect of such an injunction on commercial dealings in the country. The two grounds are not necessarily connected, though both may coexist in some cases. 14. On the question of irretrievable injury which is the second exception to the rule against granting of injunctions when unconditional bank guarantees are sought to be realised the court said in the above case that the irretrievable injury must be of the kind which was the subject-matter of the decision in the Itek Corpn. case, 566 Fed Supp 1210. In that case an exporter in USA entered into an agreement with the Imperial Government of Iran and sought an order terminating its liability on stand by letters of credit issued by an American Bank in favor of an Iranian Bank as part of the contract. The relief was sought on account of the situation created after the Iranian revolution when the American Government cancelled the export licenses in relation to Iran and the Iranian Government had forcibly taken 52 American citizens as hostages. The US Government had blocked all Iranian assets under the jurisdiction of United States and had cancelled the export contract. The Court upheld the contention of the exporter that any claim for damages against the purchaser if decreed by the American Courts would not be executable in Iran under these circumstances and realisation of the bank guarantee/letters of credit would cause irreparable harm to the plaintiff. This contention was upheld. To avail of this exception, therefore, exceptional circumstances which make it impossible for the guarantor to reimburse himself if he ultimately succeeds, will have to be decisively established. Clearly, a mere apprehension that the other party will not be able to pay, is not enough. In Itek case (supra) there was a certainty on this issue. Secondly, there was good reason, in that case for the Court to be prima facie satisfied that the guarantors i.e. the bank and its customer would be found entitled to receive the amount paid under the guarantee. 15. Our attention was invited to a number of decisions on this issue -- among them, to Larsen and Toubro Ltd. v. Maharashtra SEB, Hindustan Steel Workers Construction Ltd. v. G.S. Atwal and Co. (Engineers) (P) Ltd., as also to National Thermal Power Corporation. Ltd. v. Flowmore (P) Ltd., . The latest decision is in the case of State of Maharashtra v. National Construction Co., where this Court has summed up the position by stating: "The rule is well established that a bank issuing a guarantee is not concerned with the underlying contract between the parties to the contract. The duty of the bank under a performance guarantee is created by the document itself. Once the documents are in order the bank giving the guarantee must honour the same and make payment ordinarily unless there is an allegation of fraud or the like. The courts will not interfere directly or indirectly to withhold payment, otherwise trust in commerce internal and international would be irreparably damaged. But that does not mean that the parties to the underlying contract cannot settle the disputes with respect to allegations of breach by resorting to litigation or arbitration as stipulated in the contract. The remedy arising ex contractu is not barred and the cause of action for the same is independent of enforcement of the guarantee." 9. More recently, in the Federal Bank Limited v. V.M. Jog Engineering Limited and Ors., (2001) 1 SCC 663 the Apex Court had in circumstances strikingly similar to the present recorded the following enunciation of law -- In several judgments of this Court, it has been held that courts ought not to grant injunction to restrain encashment of bank guarantees or letters of credit. Two exceptions have been mentioned - (i) fraud, and (ii) irretrievable damage. If the plaintiff is prima facie able to establish that the case comes within these two exceptions, temporary injunction under Order 39 Rule 1 CPC can be issued. It has also been held that the contract of the bank guarantee or the letter of credit is independent of the main contract between the seller and the buyer. This is also clear from Articles 3 and 4 of UCP (1983 Revision). In case of an irrevocable bank guarantee or letter of credit the buyer cannot obtain injunction against the banker on the ground that there was a breach of the contract by the seller. The bank is to honour the demand for encashment if the seller prima facie complies with the terms of bank guarantee or the letter of credit, namely, if the seller produces the documents enumerated in the bank guarantee or the letter of credit. If the bank is satisfied on the face of the documents that they are in conformity with the list of documents mentioned in the bank guarantee or the letter of credit and there is no discrepancy, it is bound to honour the demand of the seller for encashment. While doing so it must take reasonable care. It is not permissible for the bank to refuse payment on the ground that the buyer is claiming that there is a breach of contract. Nor can the bank try to decide this question of breach at that stage and refuse payment to the seller. Its obligation under the document having nothing to do with any dispute as to breach of contract between the seller and the buyer. The Federal Bank was the negotiating Bank on behalf of Bank of Maharashtra which was the author of the Letter of Credit. The relation between the two Banks was held to be that of principal and agent. The Federal Bank had sent copies of the documents received by it from the seller to the issuing banker, namely, Bank of Maharashtra. The latter spent an inordinate time in responding and in the meanwhile, strictly in conformity with the Letter of Credit, Federal Bank paid the Seller. It was subsequently discovered that the Seller had allegedly committed a forgery on the documents. Nevertheless, since there was no infraction of the terms of the Letter of Credit, the Apex Court held that the Federal Bank, namely, the paying or negotiating (intermediary) Bank would be entitled to reimbursements from the Bank of Maharashtra. The Apex Court affirmed the Judgment of the Division Bench of the Bombay High Court authored by Hon'ble M.B. Shah, J., as his Lordship then was, in Virgo Steels v. Bank of Rajasthan Ltd. & others, AIR 1998 Bombay 82. In that case UCO Bank had issued a Letter of Credit at its request, on the foundation of which the Bank of Rajasthan Limited had made disbursements. The Bank of Rajasthan had sought confirmation from the UCO Bank, and had received it. The Division Bench found it irrelevant that some officers of the UCO Bank had committed fraud. It affirmed the Order of the Single Judge refusing to grant unconditional Leave to Defend to UCO Bank. The Division Bench had also referred to a Circular of the Reserve Bank of India dated April 1, 1992 in which it recommended the honouring of Letters of Credit even where the transaction involved a conspiracy between the beneficiary and the constituents. The RBI had opined that "if the bills drawn under LCs are not honoured, it will adversely affect the character of LCs and the relative bills as an accepted means of payment. This could also affect the credibility of the entire payment mechanism through banks and affect the image of the Banks". The Apex Court has relied on its earlier judgment in United Commercial Bank case (supra) as has been succinctly condensed the law in the first Head Note of the Report, which reads thus: The opening of a confirmed letter of credit constitutes a bargain between the banker and the vendor of the goods which imposes on the banker an absolute obligation to pay. A banker issuing or confirming an irrevocable credit usually undertakes to honour drafts negotiated, or to reimburse in respect of drafts paid, by the paying or negotiating intermediate banker and the credit is thus in the hands of the beneficiary binding against the banker. A letter of credit constitute the sole contract with the banker and a bank issuing or confirming a letter of credit is not concerned with the underlying contract between the buyer an seller. Duties of a bank under a letter of credit are created by the document itself, but in any case it has the power and is subject to the limitations which are given or imposed by it, in the absence of the appropriate provisions in the letter of credit. The banker owes a duty to the buyer to ensure that the documents tendered by the sellers under a credit are complied with those for which the credit calls and which are embodied in terms of paying or negotiating bank. The description of the goods in the relative bill of exchange must be the same description in the letter of credit, that it, the goods themselves must in each be described in identical terms, even though the goods differently described in the two documents are, in fact, the same. It is the description of the goods that is all important and if the description is not identical it is the paying bank's duty to refuse payment. 10. On first principles, the Hon'ble Supreme Court has made the following observations in respect of letters of credit in Hira Lall and Sons and Ors.s v. Lakshmi Commercial Bank, : "This is an application based on a letter of credit. The settled legal position is that a letter of credit constitutes sole contract with the banker and its authorising the bank issuing letter of credit has no concern with any question that may arise between the seller and the purchaser of goods in respect of the purchase price; that there should, however, be strict compliance both by the customer at whose instance letter of credit was issued and by the banker, with his instructions; that in a claim on letter of credit, defense of fraud or apprehension of irretrievable injustice or non-compliance with instructions could also be raised. All such defenses could be urged or agitated before the Tribunal by the petitioner and on a decision by it, an appeal also could be filed". 11. An analysis of these pronouncements discloses that the Hon'ble Supreme Court has consistently, unvaryingly and relentlessly held that Courts should interfere in the encashment of Bank Guarantees and Letters of Credit with great circumspection. Although this approach may appear to be harsh on a defrauded party, it should not be forgotten that such a party has legal recourse to proceed against the defrauder in a civil action for the recovery of money. In most instances the fraud has been committed largely because of reckless trust reposed by one of the parties upon the other party to the transaction, in which folly foolhardiness or carelessness the Bank has no role to play. The Bank is a third party and is merely a facilitator of commercial transactions. The Bank ought not to be made to suffer for the recklessness of its constituents or be held liable for the legal inequities of a third party, else this significant and now irreplaceable method and medium of trade be rendered unworkable and non-functional. 12. On the strength of the above referred Judgments ordinarily the Court would have refrained from interdicting the encashment of the Bank Guarantees had such a prayer been made before it. The situation is, however, somewhat different in that it is the beneficiary who has approached the Court by way of this writ petition, and not by way of a civil suit seeking recovery of the amounts covered by the sundry Bank Guarantees. 13. Mr. Vijay Hansaria, learned Senior counsel for the Petitioner, relies on State of U.P. v. Mohammad Nooh, AIR 1958 SC 86, Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and Ors., ABL International Ltd. and Anr. v. Export Credit Guarantee Corporation of India Ltd. and Ors., . It is difficult to ignore the fact that at the very first instance of this litigation the Respondent had objected to the filing of the present writ petition, inter alia, on the grounds that highly contested questions of fact had arisen. In these circumstances the Petitioners were put to notice of the Bank's challenge as to the very maintainability of the writ petition. If it was still advised to pursue the present action it cannot now be heard to complain that the Court has entertained the petition for several years. Courts have become a convenient flogging horse for delays and increasing pendency of cases, while the cause of the malady lies on the ever increasing imbalance in the judge to population/litigation ratio. Courts must evaluate whether the Respondent has raised disputes in the factual matrix only to resist the controversy in the adjudication of the relatively expeditious remedy of a writ petition. If found to be so the Court should decide the writ undeterred by the objection. If the Respondent's defense is not embarrassed, obstructed, handicapped or impeded in any manner, the adjudication of the disputes in the exercise of extraordinary writ jurisdiction should not be faulted. In Mohammad Nooh's case (supra) the Hon'ble Supreme Court was not concerned with the recovery of money when it observed that the existence of other adequate remedies is not per se an embargo or impediment to the issue of a writ of certiorari. The pronouncements in that case are thus of no avail to the Petitioner. 14. I am bound, in the circumstances of the present case, to follow the course and approach of the Hon'ble Supreme Court in Haryana Urban Development Authority and Anr. v. Anupama Patnaik, it has been observed that it was "rather strange that a simple claim for money was made in a writ petition and was entertained by the High Court and allowed. There are several disputed questions of fact. Each party is alleging that the other party is guilty of violation of the terms of the allotment. The matter is not covered by any statutory provisions. The writ petition itself was misconceived and ought not to have been entertained". In ABL International case (supra) the Apex Court had pronounced that a writ petition involving serious and disputed questions of facts which requires consideration of evidence which is not on record will not normally be entertained under Article 226. So far as the enforcement of contractual obligations of the State or its instrumentalities are concerned it had been held that the question was no longer res integra that the High court can interfere under Article 226 if the State or its instrumentalities acts in an arbitrary manner even in a matter of contract. The case at hand is not one where the perusal of the defense of the Bank as such would inexorably lead to the conclusion that the Bank was procrastinating or avoiding the discharge of its liability. The defense of the Bank cannot be viewed as vexatious or imaginary or raising disputes only to frustrate the writ petition. In that case the Hon'ble Supreme Court was of the view that merely because a Respondent disputes the claim it does not become a disputed fact. If this Court had only to look into the terms of the Bank Guarantee, the efficacy of which was the only question in doubt and controversy, the ratio in ABL International case (supra) could have persuaded me to exercise the extraordinary powers contained in Article 226 of the Constitution. Thus by way of clarification if the question was whether the Bank Guarantee was legally sound even tough it had been signed by the Bank Manager twice over, or whether their confirmation by the very Bank Manager who had executed them was legally proper, the Court may not have refrained from granting relief under the writ petition. The defense of the Bank, however, is much wider in that it alleges that there has been collusion and forgery in furnishing these Bank Guarantees. The Petitioners were fully aware of this defense since a copy of the FIR has been annexed to the Petition. In the Whirlpool case (supra) the prefatory statement of the Court is to be found in paragraph 15 of the perspicuous judgment which reads thus: "Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case-law on this point but to cut down this circle of forensic whirlpool, we would rely on some old decisions of the evolutionary er of the constitutional law as they still hold the field." The controversy which had arisen in the Whirlpool case was whether during the pendency of proceedings in the High Court and in view of Section 107 of the Trade and Merchandise Marks Act, 1958 the Registrar was competent to issue a suo moto notice under Section 56(4) of the Trade and Merchandise Marks Act, 1958 for cancellation of the Certification of Registration. This factual matrix cannot possibly be compared with a situation where forgery of a Bank Guarantee has been alleged by a party, which allegation is neither frivolous nor fabricated but presaged by the lodging of an FIR. 15. In these circumstances the writ petition is dismissed. However, the Petitioner shall be entitled to avail of the time spent by it in prosecuting this writ petition in the event it files a suit for the recovery of the amounts secured by the Bank Guarantees within thirty days from today.

Author: V Sen

Steel Authority Of India Limited ... vs Punjab And Sind Bank And Ors. on 20 September, 2004

Delhi High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.12902 of 2011 LILLA DEVI Versus THE STATE OF BIHAR ----------- Shageer ( Dinesh Kumar Singh, J) 02. 28.04.2011 Petitioner being mother of the husband is apprehending her arrest in a case registered under Sections 341, 323, 324, 379, 498A/34 of the I.P.C. It is submitted by learned counsel for the petitioner that the thrust of accusation is against the husband who has been granted regular bail and the informant earlier filed a case under Section 498A of the I.P.C. in which petitioner is on bail. Considering the aforesaid facts, let the petitioner namely Lilla Devi, in the event of her arrest or surrender before the Court below within a period of 12 weeks from today, be released on anticipatory bail on furnishing bail bond of Rs. 10,000/-(ten thousand) with two sureties of the like amount each to the satisfaction of S.D.J.M., Bhojpur at Ara in connection with Ayer P.S. Case No. 61 of 2010, Trial No. 4038 of 2010.

Lilla Devi vs The State Of Bihar on 28 April, 2011

Patna High Court - Orders

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Raj Kumar vs State Of U.P. & Others on 6 September, 2010

Allahabad High Court

Gujarat High Court Case Information System Print TAXAP/57/2010 4/ 4 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD TAX APPEAL No. 57 of 2010 ================================================= ACIT - CEN CIR 1 (2) AHMEDABAD - Appellant(s) Versus MSK PROJECTS (INDIA) LTD - Opponent(s) ================================================= Appearance : MR KM PARIKH for Appellant(s) : 1, MR SN SOPARKAR, SR. ADV. with MRS SWATI SOPARKAR for Opponent(s) : 1, ================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI and HONOURABLE MS JUSTICE SONIA GOKANI Date : 05/09/2011 ORAL ORDER(Per : HONOURABLE MR.JUSTICE AKIL KURESHI) 1. Revenue has filed this appeal challenging the judgment of the Tribunal dated 7.8.2009 raising following questions for our consideration:- "I. Whether, on the facts and in the circumstances of the case, the Ld. ITAT was right in law in allowing interest observing that the Revenue had accepted the interest expenditure in earlier assessment years ignoring the fact that such disallowance of interest expenditure was confirmed by the CIT(A) at Rs.1,97,000/- for A.Y.1999-2000 & Rs.42,77,609/- for A.Y.2000-2001?" II. Whether, on the facts and in the circumstances of the case, the Ld.ITAT was right in law in allowing interest amount to Rs.26,83,618/- though the interest attributable to exempt income could not be allowed u/s.14A or Section 36(1)(iii) of the Income Tax Act, 1961?" 2. Both the issues overlap and pertain to disallowance of interest expenditure claimed by the assessee either under Section 14A or Section 36(1)(c) of the Income Tax Act, 1961. 3. On 8.8.2011 while issuing notice we had made following observations:- "Counsel for the Revenue submitted that with respect to two questions proposed in this tax appeal, the Tribunal held against the Revenue on the premise that in the previous years, the Assessing Officer had not taken any steps for disallowance of interest or for claim of investment. He further submitted that on both the issues previously, the Assessing Officer as well as the CIT(A), had held against the assessee and such issue was never carried in appeal by the assessee." 4. In response to the notice issued, learned Senior Advocate Mr. S.N.Soparkar appeared with learned advocate Mrs. Swati Soparkar. 5. We have heard learned counsel for the parties for final disposal of the appeal itself. 6. Having perused the documents on record and taking into account the contentions raised by both the sides, it emerges that the Tribunal had remanded both the issues for fresh consideration by the Assessing Officer for ascertaining details such as availability of interest free funds and utilization of interest bearing funds for giving interest free loans etc. While doing so, in para 11 of the order in connection with the question of disallowance of Rs.26,83,618/-, the Tribunal observed as under: " In this regard we may notice that Assessing Officer has not taken any action for disallowing interest in Construction Division in earlier years even though there were interest bearing funds borrowed by the assessee and interest thereon was paid. If no interest payment by Construction Division has been disallowed for transfer of funds from Construction Division to Infrastructure Division then, it is presumed that transfer of funds in earlier years was out of interest free funds and to that extent payment of interest cannot be disallowed." 7. Similarly, with respect to disallowance of interest amount of Rs.24,53,000/- the Tribunal in the impugned order observed as under:- " Thus, no fresh investment has been made this year. There is no reason to take a different view than what ld. A.R. has submitted that once the Assessing Officer has allowed a claim in earlier year then it is presumed that he was satisfied that investment in shares were made out of interest free funds and, therefore, there was no case for disallowance of any interest burden u/s 14A" 8. Counsel for the Revenue submitted that both the factual observations of the Tribunal are erroneous and not supported from the documents on record. He submitted that in both cases, the Assessing Officer had ruled against the assessee. Be that as it may, he contended that the Tribunal made incorrect observations of facts. Counsel for the respondent assessee was unable to dispute these contentions of the Revenue. In fact, counsel for the Revenue had also brought to our notice the necessary documents in support of his contentions in the form of the paper book. Having satisfied ourselves, that the above noted observations of the Tribunal are contrary to the record such observations are required to be deleted. 9. Independent of such observations since the Tribunal has only remanded the issue for fresh consideration by the Assessing Officer, we do not see any reason to interfere. We make it clear that we have not made any observation with regard to the disallowance made by the Assessing Officer. 10. In the result, Tax Appeal is disposed of providing that the above noted observation made by the Tribunal in paragraphs 11 and 14 of the impugned order shall stand deleted. Rest of the order of the Tribunal shall remain unchanged. Tax Appeal is disposed of accordingly. (Akil Kureshi, J. ) (Ms. Sonia Gokani, J. ) sudhir     Top

Author: Akil Kureshi, Gokani,

Acit vs Revenue on 5 September, 2011

Gujarat High Court

Gujarat High Court Case Information System Print SCA/3163/1999 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 3163 of 1999 ====================================== PARISHRAM INDUSTRIAL COOP SOCIETY LTD & 13 - Petitioners Versus STATE OF GUJARAT & 6 - Respondents ====================================== Appearance : MR AMIT M PANCHAL for Petitioners. GOVERNMENT PLEADER for Respondent(s) : 1 - 4. NANAVATI ASSOCIATES for Respondent(s) : 5 - 6. NANAVATI & NANAVATI for Respondent(s) : 5, MR MK VAKHARIA for Respondent(s) : 7, ====================================== CORAM : HONOURABLE MR.JUSTICE K.A.PUJ Date : 05/03/2010 ORAL ORDER Ms. Parinda Davawala, learned advocate states that she is appearing in this matter for the petitioner and she will file her appearance. The office is, therefore, directed to show the name of Ms. Davawala, instead of Mr. Panchal. S.O. to 18.03.2010. Sd/- [K. A. PUJ, J.] Savariya     Top

Author: K.A.Puj,&Nbsp;

Parishram vs State on 5 March, 2010

Gujarat High Court

Gujarat High Court Case Information System Print SCA/1694/2010 3/ 3 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 1694 of 2010 ========================================================= KUSUMBEN JASVANTRAY TRIVEDI - Petitioner(s) Versus UNITED INDIA INSURANCE CO LTD & 2 - Respondent(s) ========================================================= Appearance : MR BJ TRIVEDI for Petitioner(s) : 1,MR JT TRIVEDI for Petitioner(s) : 1,MS JIGNASA B TRIVEDI for Petitioner(s) : 1, RULE SERVED for Respondent(s) : 1 - 2. MR PALAK H THAKKAR for Respondent(s) : 1, SERVED BY AFFIX.-(R) for Respondent(s) : 3, ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 21/12/2010 ORAL ORDERThe petitioner senior citizen had taken health insurance policy from respondent no.1 Insurance Company which is a nationalised insurance company and State within the meaning of Article 12 of the Constitution. After she underwent cataract operation and raised the bills, for a long time there was no reply from the Insurance Company either granting or refusing the claim. Operation took place on 25.7.2009. The petitioner therefore, filed the present petition on 22.2.2010 in which the Court issued rule on 23.2.2010. Rule must have been served sometime thereafter. For a long time, no reply was filed. On 19.10.2010, the Court after hearing advocates on both sides gathered impression that till date the Medi-claim application of the petitioner is not decided. Respondents were therefore, directed to decide such application, if not already decided. Strangely, though the insurance company was represented by the advocate, it was not pointed out to the Court that decision is already taken. Pursuant to said order dated 19.10.2010, affidavit dated 19.11.2010 came to be filed stating that claim of the petitioner is already turned down. Such decision is communicated to the petitioner under letter dated 5.6.2010. On the ground of pre-existing disease not mentioned in the proposal form, claim was rejected. Letter is addressed to some address at Alkapuri, Vadodara whereas the petitioner resides at Satyagrah Chavni in Ahmedabad and such address is also available on record with the respondents. Today the petition was taken up for hearing. I had heard learned advocate for the petitioner for about half an hour. He mainly urged that petitioner had not concealed any pre-existing disease. There is nothing on record to suggest that there was any concealment on part of the petitioner. Clause(4.1) of the policy relied upon by the respondent no.1 is not on record. In reply, Counsel for the respondent started his submissions. To the Court's query regarding clause(4.1), he stated that document in which such clause is contained is not with him. He sought for time for producing the same. To the Court's question on what basis TPA has concluded that deceased was pre-existing, he stated that affidavit is filed by respondent no.1 only to the limited aspect of the claim of the petitioner having been disposed of or not. He requested that further time may be granted for filing reply on merits. The manner in which the entire case has been handled by the respondent insurance company is shocking to say the least. After taking out health insurance policy, the claim put-forth by senior citizen was not decided for months together. Decision taken was communicated to a wrong address. Even before the Court, Counsel for the Insurance Company previously did not point out that such decision is already taken. When finally insurance company woke up from slumber and filed affidavit, it was found only stating that claim has already been rejected on the ground of non-disclosure of pre-existing disease as per clause(4.1). Clause (4.1) is still not on record. Reply on merits is yet not filed though previously the Court had fixed the matter for hearing in first board peremptorily. In the interest of justice, further hearing is adjourned to 13.1.2011. However, respondents shall pay cost of Rs.5000/- to the petitioner for the inconvenience caused to the petitioner and insensitive approach adopted by the insurance company. (Akil Kureshi,J.) (raghu)     Top

Author: Akil Kureshi,&Nbsp;

Kusumben vs United on 21 December, 2010

Gujarat High Court

ORDER AR. Lakshmanan, J. 1. The Writ Appeal No. 512 of 1997 has been directed against the order of the learned Single Judge of this Court in dismissing the writ petition filed by the appellant workers union for a mandamus forbearing the Tamil Nadu Civil Supplies Corporation Limited (herein after called Corporation) to oust any of the Bill Clerks, Helpers and Watchmen working in the Direct Purchase Centres under the control of the Corporation who have rendered 480 days of service in two consecutive years or who have been granted permanent status by the Inspector of Labour, Thanjavur, Nagapattinam and A.T. Panneerselvam Districts. The learned Judge (R. Jaya Simha Babu, J.) dismissed the writ petition in limine on 10.04.97 by passing the following order: "Petitioner - Union wants a blanket in junction in favour of a large number of its employees though the exact number is not specified from being relieved from their places of work. Petitioner is not entitled to any such blanket relief. If the respondents have committed any error of law or violated any legal rights of the employees, such employees may take such action as is available to them in accordance with law, to challenge the illegal action if any on the part of the respondents. This petition is misconceived and the same is rejected. Consequently, the W.M.P. is also rejected." 2. The appellant workers union filed writ petition No. 4798 of 1997 claiming that, pursuant to the Judgment of this Court in Writ Petition No. 5449 of 1983, Writ Appeal No. 423 of 1992 and S.L.P.No. 16474 of 1992, they are entitled for grant of permanent status with effect from the date of completion of 480 days, that the Inspector of Labour, Thanjavur in his proceedings in R.C.No. A- 19146 of 1992 dated 31.05.95 have granted permanent status to 151 employees and that the Inspector of Labour Nagapattinam in his proceedings dated 25.3.95 held that out of 129 employees, 128 were eligible for grant of permanent status and that the Corporation have filed W.Ps. 14889 and 14640 of 1996 against the above orders and the writ petitions are pending on the file of this court for final adjudication. 3. Mr. R. Ganesan, learned counsel for the appellant submitted that even after grant of permanent status to workers, the Corporation is seeking to oust them from services on the ground of closure of the season. Since the Corporation is planning to oust the employees working in "Direct Purchase Centres" who have rendered 480 days of service in two calendar years and who have been granted permanent status by the Inspector of Labour and that there will be work throughout the year, there is no justification at all for the Corporation to oust the employees working in "Direct Purchase Centres" who have rendered 480 days of service in 2 calendar years who have already been granted permanent status. If this is allowed to be done, it will run counter to the decision of this Court and also will be unjust and unreasonable. In the circumstances, the workers union filed Writ Petition No. 4798 of 1997. The writ appeal was admitted on 13.06.97 and the Corporation have now filed their counter affidavit denying the allegations contained in the affidavit. It is stated that the appointment to the post is a seasonal one which can be terminated at any time as soon as the work is over, and that the workers are not entitled for the grant of permanent status under the Tamil Nadu Industrial Establishment (Conferment of Permanent Status to Workmen) Act, 1981. It is also submitted that the Establishment is of a seasonal character and that the work is performed only intermittently, the Act has no application to the Corporation. It is also submitted that against the order of the Inspector of Labour, Thanjavur who has granted permanent status to the employees by his order dated 25.5.95 and that against the order of the Inspector of Labour, Nagapattinam who has granted permanent status to the employees by his order dated 25.3.95, the Corporation have preferred Writ Petitions 14639 and 14640 of 1996 before this Court challenging the said orders and the writ petitions are admitted and are pending final disposal. In the mean time, the workers have filed the present Writ Petition No. 4728 of 1997 with a whole sale prayer directing the Corporation to regularise the seasonal employees who are not at all covered by the order passed by the Inspector of Labour Thanjavur and Nagapattinam in their proceedings dated 31.5.95 and 25.3.95. The prayer as far as the writ petition is concerned, cannot be granted since on 7.5.97 itself the seasonal employees had been terminated from service. Other legal and factual contentions have also been raised in the counter affidavit. In support of his contentions Mr. R. Ganesan has cited the following decisions; (1) Metal Power Co., Ltd. Tirumangalam and Anr. v. The State of Tamil Nadu and Anr., 1985 (2) LLJ 376; (2) Central Inland Water Transport Corporation Ltd., and Anr. v. Tarun Kanti Sengupta and Anr., 1986 (2) LLJ 171; (3) Supreme Court Employees Welfare Association v. Union of India, ; (4) A.R. Antulay v. R.S. Nayak and Anr., ; (5) P.K. Vijayan v. Kamalakshi Amma, ; (6) ; (7) Gorie Gouri Naidu (Minor) and Anr. v. Thandrothu Bodemma andanother, ; (8) 1990 LIC 249 4. Writ Appeal Nos. 563 to 565 of 97: These three writ appeals are by the individual seasonal employees of the Corporation. These three appeals were filed for a mandamus directing the Corporation to confer permanent status on the writ petitioners with effect from 3.5.86 with all consequential, monetary, service and other attendant benefits. All the three writ appeals were dismissed by Kanakaraj. J on 22.4.97 on the ground that the workmen have to approach the Inspector for declaration and that after such declaration by the Inspector, if the Management refuse to confer permanent status, it is time enough for the petitioners to approach this Court or any other competent authority, and that the workmen cannot straight away approach this Court under Article 226 of the Constitution of India to direct the Management to confer permanent status from a particular date. In this view of the matter, the learned Judge was not inclined to entertain any of these writ petitions and accordingly dismissed the same, hence the workmen have filed the above three writ appeals. Mr. Perumbulavil Radhakrishnan learned counsel for the appellant submitted that there is no provision in the Act for approaching the Labour Inspector under the Act and the writ petitioner cannot maintain the writ petition and can only approach the Labour Officer is not correct. He further submitted that the writ petition for a mandamus to enforce a statutory right is maintainable in law. He would further submit that though the services of the workmen were permanently required and the Corporation was wilfully keeping them temporary and having periodically ousting only to exploit them of the monetary benefits due to them. 5. Writ Petition Nos. 5826 to 5838 of 1997, 5070 of 1997, 4971 to 4973 of 1997, 4243 to 4245 of 1997, 6520 and 6521 of 1997: These writ petitions were filed by certain workmen for a mandamus directing the Corporation to confer permanent status on the petitioners with effect from a particular date with all consequential, monetary, service and other benefits. Similar contentions as in the other writ petitions have been raised in these writ petitions. 6. Writ petition Nos. 5120 of 1997. 5827 of 1997, 7161 to 7164 of 1997: (filed by Mr. S. Periasamy, Advocate). These writ petitions were filed by some of the workmen for mandamus directing the Corporation to regularise their services for the respective posts with all attendant and monetary benefits including the time scale of pay from the date of their appointment. 7. Writ petition Nos. 7161 to 7164 of 1997: The Writ Petition No. 7161 of 1997 has been filed by Mr. S. Selvaraj to call for the records pertaining to the order of the Senior Regional Manager, Tamil Nadu Civil Supplies Corporation Ltd., in his proceedings RC.No.10088 of 1997/A4 dated 7.5.95 and quash the same. Writ Petition No. 7162 has been tried by Mr. P. Manimaran to quash the very same proceedings dated 7.5.97. Writ petition Nos. 7163 and 7164 has been filed by Mr. A. Karunanidhi and Mr. N. Thiuvarasan to quash the very same proceedings dated 7.5.97. By the impugned order dated 7.5,97, the temporary Bill Clerks who were working in the "Direct Purchase Centres" and other field points, etc., were ousted from service on the afternoon of 7.5.97 for want of vacancy. The order also states that the temporary Bill Clerks were clearly informed at the time of their appointment that they were liable to be ousted from service at any time without any prior notice or assigning any reason. Mr. S. Periasamy learned counsel for the respective petitioners contended that all the employees have put in 480 days of service with 24 months as required under the Tamil Nadu Government Conferment of Permanency Act, 1981 and therefore they are eligible to be regularised in the post of Bill Clerks, etc., as that of other employees. The Corporation in spite of their repeated requests have not taken any action for regularisation of their services. The learned counsel has also relied on the order passed by this Court in Writ Petition No. 5549 of 1995 praying for regularisation and since the writ petitioner is also similarly placed, he is entitled for similar relief along with other workers who are working in the Corporation. Mr. S. Periasamy learned counsel for the petitioner also submitted that the order of the respondent Corporation is illegal and against the guidelines issued by the Government and that the Corporation has ousted the petitioner alone from the service while his juniors have been continued in service and that the Corporation has failed to follow the universal procedure of the "Last come first go". He also submitted that the appointment order was given by the Tamil Nadu Civil Supplies Corporation and not by the Procurement/Purchase Centres. 8. Writ petition Nos. 6440 and 6441 of 1997: (Filed by Mr. V. Sanjeevi and Mr. K. Muthukumaran, Advocates) These two writ petitions have been filed by the seasonal employees of the Corporation for a mandamus directing the Corporation to confer permanent status on them with effect from 14.12.87 with all consequential, monetary, service and other benefits. It is contended by Mr. V. Sanjeevi learned counsel for the petitioner that the action of the Corporation in not conferring permanent status and giving one day break in service is highly illegal, arbitrary and violative of Article 14 of the Constitution of India and that the Corporation is an Industrial Establishment as defined in Section 2(3) of the Act, and the Corporation is an Establishment as defined in Clause (6) of Section 2 of the Tamil Nadu Shops and Establishments Act, 1947 and that the petitioner has been denied under Section 2(4) of the Act when he is in service for a long period of 12 years. He further submitted that when the petitioner's service is required continuously, the action of the Corporation in giving ouster order is illegal. 9. On behalf of the respondent Corporation, Mr. A.L. Somayaji, Senior Advocate argued the matter. His argument was adopted by Mr. R. Balasubramanian. Our attention was drawn to the sample appointment order. The last paragraph of the appointment order reads thus: "I clearly understand that the post for which I have been selected is seasonal in character and purely temporary one and it is for a short period and that I am liable to be ousted from service at any time prior to that date without any prior notice whichever is earlier. I shall abide by all the rules and regulations of the Corporation. I also understand that I do not have any right to claim for any continues appointment in the Corporation." The petitioners were appointed as seasonal Bill Clerks with a consolidated pay of Rs. 750 p.m. consequent upon the cosigning of "Direct Purchase Centres" for "Sambha 1997 season" in Nagapattinam. At the time of appointment, the workmen were clearly informed that the appointment is of seasonal in character, purely a temporary one for a short period and they are liable to be ousted from the service at any time without any prior notice or assigning any reasons. The appointment order (above extracted) further states that the petitioner has to furnish the Certificates as contained in last paragraph of the appointment order at the time of joining duty. From a reading of the appointment order, it is clear that the appellant does not acquire the right for regularisation, since the appointment is a seasonal one and the workmen were liable to be ousted from the service at any time without prior notice or assigning any reasons. 10. Our attention was drawn to the prayer in Writ Petition No. 4728 of 1997 which is for a mandamus directing the Corporation not to oust any Bill Clerks, Helpers, etc., working in "Direct Purchase Centres" who have rendered 480 days of service in two consecutive years and who have been granted permanent status by the Inspector of Labour, Thanjavur and Nagapattinam. We are of the view that the writ petitioners are not entitled to ask for the general prayer without furnishing the details as to the number of workers and the relevant seniority list. The appointment order above extracted is very clear that the appointment is a temporary one and the employees have no right to claim regularisation, since the appointment is of seasonal in character. The appointment order further specifically states that they will be ousted from service at any time due to non-availability of work, for want of vacancy on account of the completion of work and due to non-availability of budgetary sanction for the continuance of such seasonal employees. In our view, the workmen do not acquire any vested right to be regularised since the appointment is a seasonal one. We have already noticed that the present writ petition has been filed for regularisation on the basis of the earlier judgment of this Court in W.P.No. 5459 of 1983 which was allowed on 10.10.91 with the direction to the workmen to approach the Labour Curt for determination of the question of permanent status. The writ appeal filed by the Corporation and the further S.L.P. were dismissed. Afterwards, the workmen have approached the Labour Court for getting appropriate relief according to the direction in W.P.No. 5459 of 1983 and on 31.5.95 and 25.3.95, the Inspector of Labour, Thanjavur and Nagapattinam granted permanent status to some of the employees. Aggrieved by the said order, the Tamil Nadu Civil Supplies Corporation has filed W.P.No. 1450 of 1993 with this court challenging the order of the Inspector of Thanjavur and Nagapattinam. This court admitted the writ petition and the same is pending final adjudication. In the mean time the workmen have filed W.P.No. 4728 of 1997 with a wholesale prayer directing the Corporation to regularise the seasonal employees who are not at all covered by the order passed by the Inspector of Labour, Thanjavur and Nagapattinam. This prayer was opposed by the Corporation on the ground that the services of the seasonal employees have been terminated on 7.5.97 itself and therefore the writ petitions are liable to the dismissed. As rightly pointed out by the learned senior counsel for the respondent Corporation that in view of the pendency of the writ petitions filed by the Corporation challenging the orders passed by the Inspector of Labour, Thanjavur and Nagapattinam, we are not expressing any opinion on the prayer asked for in Writ Petition No. 4728 of 1997 which was dismissed at the admission stage itself and against which Writ Appeal No. 512 of 1997 has been preferred. In our opinion, the writ appellant union has to await for the final outcome of the Writ Petition Nos. 14639 and 14640 of 1996. 11. Mr. R. Ganesan, learned counsel for the appellant invited our attention to the decision of Kanakaraj, J, in Writ Petition No. 5459 of 1983. The learned Judge held that on a plain reading of Section 2(6) of the Shop Act, there can be no difficulty that the Establishment of the Corporation where the temporary employees are working or either a shop or a commercial establishment, within the meaning of Section 2(6) of the Shop Act, that once the Establishment comes within Section 2(6) of the Shop Act, it automatically follows that it is an Establishment within the meaning of Section 2(3) of the Permanent Status Act. The Corporation cannot therefore escape from the applicability of the Permanent Status Act. We are of the view that the above judgment is distinguishable on an interpretation of Sub-Clause (3) of Section 1 of the Tamil Nadu Industrial Establishment (Conferment of Permanent Status to Workmen) Act, 1981. It is contended by Mr. A.L. Somayaji learned counsel for the respondent that the provisions of the above mentioned Act of 1981 do not apply to the respondent Corporation, since the respondent is not an Industrial Establishment as defined under Sub-section (3) of Section 2 of the Act. Sub-section (3) of Section 1 reads as follows: "It applies to every Industrial Establishment (not being an establishment of a seasonal character or in which work is performed only intermittently) in which not less than 50 workmen were employed on any day of the preceding twelve months. If any question arises whether an Industrial establishment is of a seasonal character or whether work is performed therein only intermittently the decision of the Government thereon shall be final." "Provided that the Government may, by notification, apply the provisions of this Act to any Industrial Establishment employing such number of workmen less than fifty as may be specified in the Notification." 12. There cannot be any dispute that the "Direct Purchase Centres" "Procurement Centres" are all seasonal establishments in which work is performed only for a specified period namely during "Sambha" or "Kuruvai" season. The procurement of paddy by the Corporation is also only of seasonal nature. Therefore, in order to procure paddy during the season, the Corporation engaged Bill Clerks, Helpers and Watchmen and a consolidated monthly salary on a temporary basis from and out of the candidates sponsored by the Employment Exchange. The employees were paid with a consolidated pay of Rs. 750 p.m. consequent upon the opening of "Direct Purchase Centres" for "Sambha 1997 season" in Nagapattinam. At the time of appointment, the employees were informed that the appointment is of seasonal in character, purely a temporary one for a short period and they are liable to be ousted from the service at any time without any prior notice or assigning any reasons. 13. A reading of the order of Kankaraj, J, in Writ Petition No. 5459 of 1993 would only show that no argument was advanced before the learned Judge as to whether the Tamil Nadu Industrial Establishment (Conferment of Permanent Status to Workmen) Act, 1981 is applicable to temporary or seasonal establishment. The said argument was advanced by Mr. A.L. Somayaji learned counsel for the respondent at the time of hearing, in support of his contention that the business of the corporation/Establishment is of seasonal in character and therefore the above Act has no application to the Establishment of the Tamil Nadu Civil Supplies Corporation. The Tamil Nadu Civil Supplies Corporation is not an Industrial Establishment. We see much more in the contention of the learned senior counsel. The argument of Mr. A.L. Somayaji that the above Act is not applicable to the Establishment, since the work is of seasonal character is also supported by several other factors. They are: (a) There is no budgetary sanction for the respondent organisation to regularise the services of the workmen due to non-availability of work. (b) The employees were appointed as seasonal temporary Bill Clerks. (c) The post were to carry a consolidated salary of Rs. 750 p.m. which is terminable without any notice and without assigning any reason. 14. As the appointment is purely on ad hoc basis and is contractual, the appointment comes to an end as soon as the work is over and the person holding such post can have no legal rights to continue in the post. Therefore the employees of the petitioner's association have no right to ask for regularisation since there is no work available in the Corporation and above all, the seasonal employees are not recruited in the manner contemplated in the rules. The procedure for recruitment of regular vacancy namely: (1) By Direct Method (2) Promotion from Feeder Category are not followed for recruitment of seasonal employees. It is also pointed out that the seasonal employees are not recruited according to rules and not against a sanctioned vacancy. The mere fact that they have continued for requisite length of service is not ipso facto entitled for regularisation. The condition precedent for regularisation is that the appointment should be on regular basis after selection according to rules. The seasonal employees are not recruited on regular basis according to rules after consideration of the claims on merits. Hence we are of the view that they are not entitled to regularisation. 15. It was argued by Mr. Periasamy and Mr. Perumbulavil Radhakrishnan, learned counsel that the employees who have completed 480 days of service should be considered for regularisation. We are unable to accept the said argument. Mere continuance and completed 480 days of service on the basis of the interim stay granted by this Court is not eligible for regularisation on the ground that the seasonal employees cannot continue in service on his own right under the appointment order. Further more, the seasonal employees have no right to claim for permanent post till they are duly selected and appointed and their appointment was not made in accordance with the rules. As rightly pointed out by the learned senior counsel, there must exist a post to appoint the employees to the post. The seasonal employees cannot make a claim for regularisation against non-existent vacancies and the regularisation of such employees amounts to a nullity and de hors the budgetery sanction. As already noticed, the petitioners have prayed for a blanket relief/prayer without giving any particulars regarding the employees who have completed 480 days of service and without filing the appointment order with regard to the above post. Now that the service of the seasonal employees had been terminated on 7.5.87 itself, it is for the employees to work out their remedies in a manner known to law. 16. It was argued on behalf of the appellants/petitioners that Section 25-F of the Industrial Disputes Act has to be complied with and non-compliance thereof would render the termination illegal. 17. In answer to the above submission, Mr. A.L. Somayaji learned counsel invited our attention to the decision in Anil Bapurao Kanase v. Krishna Sahakari Sakhar Karkhana Ltd., and Anr., 1997 (5) SCC 646 where the employee was engaged in the seasonal work in the Chemistry Section of the sugar factory. Since the work was over, the services of the appellant and others were terminated. The employees sought a reference under the Industrial Disputes Act, 1947 contending that the termination being in the nature of retrenchment is in violation of Section 25-F of the above mentioned Act. The Industrial Tribunal and the High Court negatived the contention. It was argued before the Supreme Court that since the employee has worked for more than 180 days, he should be treated as retrenched employee and if the procedure contemplated under Section 25-F of the I.D. Act is applied to, his retrenchment is illegal. The Supreme Court rejected the said contention and observed as follows: "We find no force in this contention in Morinda Co-op. Sugar Mills Ltd., v. Ram Kishan and Ors. in paragraph 3, this Court has dealt with engagement of the seasonal workman in sugarcane crushing; in paragraph 4, it is stated that it was not a case of retrenchment of the workman, but of closure of the factory after crushing season was over. Accordingly, in paragraph 5, it was held that it is not 'retrenchment' within the meaning of Section 2(00) of the Act. As a consequence the appellant is not entitled to retrenchment as per clause (bb) of Section 2(00) of the Act. Since the present work is seasonal business, the principles of the Act have no application. However, this Court has directed that the respondent-Management should maintain a register and engage the workmen when the season starts in the succeeding years in the order of seniority. Until all the employees whose names appear in the list are engaged in addition to the employees who are already working, the management should not go in for fresh engagement of new workmen. It would be incumbent upon the respondent management to adopt such procedure as is enumerated above. 4. The appeal is accordingly dismissed. No costs." 18. The Industrial Disputes Act in our view has no application for seasonal appointments. Likewise, the Confermant of Permanent Status Act also would not apply in which event the employees do not have a legal right. 19. This apart, the order of the State Government dated 2.4.91 is very clear that the Corporation is not a seasonal industry and the Government of Tamil Nadu has not declared the Corporation as an Industry by any notification in order to attract the provisions of the Act. 20. Mr. A.L. Somayaji learned counsel for the respondents placed before the court the Memorandum of Settlement reached under Section 12(3) of the Industrial Disputes Act, 1947 before the Joint Commissioner of Labour (Conciliation), Madras -6. The parties to the disputes are the workmen and loadmen of Direct Purchase Centres. The management of Tamil Nadu Civil Supplies Corporation was represented by its Chairman-cum-Managing Director, Joint Director and Senior Manager and the workmen were represented by their State Presidents, State General Secretaries, State Treasurers and others. The settlement was reached on 19.9.91. Clause 3 of the agreement reads as follows: "As regards the demand of the workmen for giving preference to the qualified seasonal employees in the D.P.C. while filing the regular vacancies, it is agreed that whenever the T.N.C.S.C. has to go to the employment exchange for direct recruitment of any class III or class IV services after exhausting the eligible candidates among the existing regular employees in the feeder categories, the qualified seasonal employees who were initially recruited through employment exchange will be given preference relaxing only the age qualification but not relaxing any other qualification, subject to the policy or reservation. In the event of absorbing the seasonal employees in the vacancies that arise in any region throughout the state of Tamil Nadu, the qualified hands will be selected by drawing the centralised seniority list in the Head Office level according to total of broken periods of service and they might be allotted to the needy regions wherever vacancies arise, on their requisitatiton. Where age relaxation becomes necessary the Management will get appropriate concurrence of Government." 20. We are of the opinion that the qualified seasonal employees can always invoke Clause 3 to their advantage. As and when vacancy arises, the Corporation is obliged to consider the claim of the qualified seasonal employees pursuant to the settlement reached between them and the workmen under Section 12(3) of the Act. We also make it clear that if there are no vacancies, the employees claim need not be considered. 21. We shall now advert to the judgment cited by Mr. A.L. Somayaji in support of his contentions. A decision reported in Director, Institute of Management Development, V.P. v. Pushpa Srivatsava, 1993 (1) LLJ 190, 193 & 194) wherein it was held that the appointment was purely on ad hoc basis and is terminable without any notice. The following are clear from the appointment order: "11. (i) The respondent was appointed on a contractual basis. (ii) The post was to carry a consolidated pay of Rs. 2,400 p.m. (iii) The duration of appointment was six months from the date of the respondent joining charge. (iv) It is purely on ad hoc basis. (v) It is terminable without any notice. Because the six months' period was coming to an end on February 28, 1991 she preferred the writ petition a few days before and prayed for mandamus which was granted by the learned Judge under the impugned judgment. The question is whether the directions are valid in law. To our mind, it is clear that where the appointment is contractual and by efflux of time, the appointment comes to an end, the respondent could have no right to continue in the post. Once this conclusion is arrived at, what requires to be examined is, in view of the services of the respondent being continues from time to time on ad hoc basis for more than a year, whether she is entitled to regularisation? The answer should be in the negative. However, reliance is placed by learned counsel on behalf of the respondent on the case in Jacob v. Kerala Water Authority,. and "13. In the instant case, thee is no such rule. The appointment was purely ad hoc and on a contractual basis for a limited period. Therefore, by expiry of the period of six months, the right to remain in the post comes to an end. If the matter is viewed from this angle, that being the only view, we find no difficulty whatever in setting aside the impugned Judgment which is accordingly set aside." Then Mr. A.L. Somayaji learned counsel cited a decision reported in Union of India v. Motilal, wherein it was held as follows:- "11. Thus it is apparent that a daily-wage or casual worker against a particular post when acquires a temporary status having worked against the said post for specified number of days does not acquire a right to be regularised against the said post. He can be considered for regularisation in accordance with the rules and, therefore, so far as. the post of mate under Railways is concerned, the same has to be filed up by a promotion from the post of gangman and keyman in Class IV subject to employees passing the trade test." Next the learned counsel cited the decision reported in Ram Sakhi Devi v. State of U.P. and Ors., . In this case, it was an ad hoc appointment and the court held that it is impermissible to invoke power of regularisation as routine. The Supreme Court held as follows: "6. The learned counsel for the appellant has sought to place reliance on Section 33-A of the Regulation made under Section 16-E of the U.P. Intermediate Act to regularise such ad hoc appointments. Undoubtedly, every teacher directly appointed before the commencement of the Act, in other words, on ad hoc basis, against the substantive vacancy may be regularised under Section 33-A; but it cannot be used as a routine. It is mandatory for the management to notify to the Commission and in case the Commission is unable to recommend the selected candidates within a reasonable time, any candidate appointed on ad hoc basis will be deemed to have been appointed in substantive capacity. The recourse to Section 33-A should be made sparingly and not as a routine. If the Section 33-A route is adopted as a routine, the entire process of selection contemplated under the Act would be given a decent burial and illegal appointments would gain legitimacy. Under these circumstances, we do not think that the counsel is right in contending that the appellant could be regularised under Section 33-A of the Regulation." Then, the learned counsel also relied on the decision reported in Committee of Management v. Sree Kulmar Tiwary, . This is also a case of an ad hoc appointee. He continued in service on the basis of interim stay. The Supreme Court held that such a continuation did not entitle him for regularisation. It was held by the Supreme Court as follows: "7. In fact, the regularisation order passed by the District Inspector of Schools also says that it was subject to the result in the writ petition. The appeal being the continuation of the writ petition, the question arises whether the respondent is entitled to claim the benefit of Section 33-B(1) (a) (1) of the U.P. Secondary Education Services Commission Act, 1982. We have seen that his services came to be terminated on 30.05.1988 and the Amendment Act has no application. Hence, the Division Bench was not right in giving direction that his regularisation will be subject to the further orders since the regularisation order itself means that it was subject to the result of the writ petition." Next the learned counsel cited the decision reported in Union of India v. Bishmber Dutt, 1996 (2) SCC 341. In the above case the Supreme Court held that persons appointed as part-time employees de hors the rules, even though regularly working for a long time are not entitled to regularisation. The above judgment is observed as follows: "The question, therefore, is whether they are entitled to the temporary status or regularisation as directed by the Tribunal? It is seen that pursuant to the enquiry whether temporary status should be granted to the part-time employees, directions were issued by the Ministry of Personnel, Public Grievances and Pension dated 12.7.1994 in the Memorandum, Clause 3, that they are not entitled to such status. Since they are not appointed on regular basis in accordance with rules the direction issued by the Tribunal to regularise the service is obviously illegal. It is then contended by the learned counsel for the respondents that in view of the fact that they were regularly working for a long time they are entitled to regularisation. We do not appreciate the stand taken on behalf of the respondents. Unless they are appointed on regular basis according to rules after consideration of the claims on merits, there is no question of regularisation of the services." The learned counsel also relied on the Judgment cited in State of U.P. and Ors. v. Ajay Kumar, . It is a case of a daily wager. The Supreme Court held that he is not entitled to regularisation. The court held thus: "3. The admitted position is that the respondent came to be appointed on daily-wage basis on 14.2.1985 as Class IV employee, Nursing Orderly, in the Medical College by the Medical Superintendent. When the respondent filed a writ petition in the High Court for his regularisation, the learned Single Judge pointed out that the respondent has not brought to the notice of the Court, any statutory rule under which the respondent could be regularised, on the basis of the service rendered by him as a daily-wage earner. Even the method of recruitment adopted by the Superintendent was not proper in as much as he did not call for applications. The Division Bench reversed the decision of the learned Single Judge and had given directions. It is now settled legal position that there should exist a post and either administrative instructions or statutory rules must be in operation to appoint a person to the post. Daily-wage appointment will obviously be in relation to contingent establishment in which there cannot exist any post and it continues so long as the work exists. Under these circumstances, the Division Bench was clearly in error in directing the appellant to regularise the service of the respondent to the post as and when the vacancy arises and to continue him until then. The direction in the backdrop of the above facts is, obviously, illegal." Next, the learaed counsel cited the decision reported in Madhyamik Siksha Parishad, U.P. v. Anil Kumar Mishra and Ors., . Above is a case of persons working under Education Board on ad hoc appointment. Post were not sanctioned. The court held that the persons working have no right to regularisation. The court also held that, duration of work for 240 days does not create any right to regularisation. The Supreme Court set aside the actions of the High Court for regularisation of service of all such employees. The court held thus: "4. We are unable to uphold the order of the High Court. There were no sanctioned posts inexistence to which they could be said to have been appointed. The assignment was an ad hoc one which anticipatedly spent itself out. It is difficult to envisage for them, the status of workmen on the analogy of the provisions of Industrial Disputes Act, 1947, importing the incidents of completion of 240 days' work. The legal consequences that flow from work for that duration under the Industrial Disputes Act, 1947 are entirely different from what, by way of implication, is attributed to the present situation by way of analogy. The completion of 240 days' work does not under that law import the right to regularisation. It merely imposes certain obligations on the employer at the time of termination of the service. It is not appropriate to import and apply that analogy, in an extended or enlarged from here." Then, the learned counsel cited the decision reported in Jawaharlal Nehru Krishi Vishwa Vidyalaya v. Balakishan Soni and Ors., . This is also a case of a staff employed in a sponsored project sponsored by Indian Council of Agricultural Research. The court held that the post could continue only till the scheme existed and regularisation could not be claimed. The court held thus: "It is not in dispute that the Scheme is sponsored by the Indian Council of Agricultural Research and, therefore, permanent posts cannot be created. The posts are coterminous with the Scheme. On abolition of the Scheme, the posts also necessarily stand abolished. We are informed that the Scheme may continue to be in force; but it depends upon the Scheme being sponsored and the posts made available by the Indian Council of Agricultural Research. Therefore, the direction to regularise the services is violative of their right to posts. The order of the High Court to that extent is modified. On whatever posts the respondents are working and discharging their duty, the scale of pay of the said post is directed to be paid." The learned counsel also cited the decision cited in Morinda Co-op. Sugar Mills Ltd., v. Ram Kishan and Ors., . In this case the workmen of Sugar Mills were working during crushing seasons only, consequent to the closure of the season, there was cessation of work. The Court held that the cessation did not amount to retrenchment. The Supreme Court set aside the order of the High Court and also issued a direction that such persons, if reporting for duty, they be engaged in accordance with seniority and exigency of work. Next, the learned counsel relied on the decision reported in C.R. Mugundan and Ors. v. Director General (Member Secretary), Indian Council of Medical Research, New Delhi and Ors., 1996 (I) LLJ 849 (AR. Lakshmanan, J). In the above case, the persons engaged for scheme introduced by Central Jalma Institute for Leprosy Vaccine Trial claim for regularisation. The contract of employment does not give any vested right to the employment. The court held that such employees cannot claim permanency in view of specific terms and conditions of appointment. The court further hold as follows: "Held: The employees were engaged on contract basis on various dates from May 31, 1991 to June 15, 1992. The order of appointment clearly states that the petitioners are engaged only for a specific period. The said contract was renewed at the end of the earlier contract period if there was any necessity for renewing the same. The contract between employees and Indian Council of Medical Research is only a private contract of employment and same stipulates various terms and conditions. The order of appointment clearly shows that the posts are temporary. The appointment was made under the scheme and the employees will not have any benefits like contributory provident fund, general provident fund, medical benefits, bonus, leave travel concession, etc. The staff employed in the Research Scheme are not employees of Central Jalma Institute for Leprosy which is a field unit of Indian Council of Medical Research." Then, the learned counsel relied on the decision reported in Director, Institute of Management Development v. Pushpa Srivatsava, In the above case an adhoc appointment was made on contractual basis for six months which was continued for more than a year. The Supreme Court held that there is no ground for claiming that appointee is entitled to regularisation service. The Supreme Court further held as follows: "Where the appointment is purely on ad hoc basis and is contractual and by efflux of time, the appointment comes to an end, the person holding such post can have no right to continue in the post. This is so even if the person is continued from time to time on "ad hoc" basis for more than a year. He cannot claim regularisation in service on basis that he was appointed on ad hoc basis for more than a year. (The management was directed to consider sympathetically if regularisation in service is possible.)" The learned counsel also cited the decision reported in Maharashtra State Co-operative Cotton Growers" Marketing Federation Ltd., v. Co-operative Cotton Growers" Marketing Federation Employees" Union and Ors., A.I.R. 1994 S.C. 1046. In this case the employees were recruited by the Federation including temporary perennial employees and seasonal employees. Disputes were raised relating to permanency. The Tribunal directed to treat the employees putting 240 days of service as permanent employees. The Supreme Court held that on facts, not applicable to seasonal employees. The Supreme Court set aside the direction of the High Court to make permanent even seasonal employees who had put in more than 240 days of service as per award. Then the learned counsel cited the decision reported in Ashwini Kumar v. State of Bihar, wherein the Supreme Court held as follows: "13. So far as the question of confirmation of these employees whose entry itself was illegal and void, is concerned, it is to be noted that question of confirmation or regularisation of an irregularly appointed candidate would arise if the candidate concerned is appointed in an irregular manner or on adhoc basis against an available vacancy which is already sanctioned. But if the initial entry itself is unauthorised and is not against any sanctioned vacancy, question of regularising the incumbent on such a non-existing vacancy would never survive for consideration and even if such purported regularisation or confirmation is given it would be an exercise in futility. It would amount to decorating a still-born baby. Under these circumstances there was no occasion to regularise them or to give them valid confirmation. The so-called exercise of confirming these employees, therefore, remained a nullity." "14. In this connection it is pertinent to note that question of regularisation in any service including any Government service may arise in two contingencies. Firstly, if on any available clear vacancies which are of a long duration appointments are made on ad hoc basis or daily-wage basis by a competent authority and continued from time to time and if it is found that the incumbents concerned have continued to be employed for a long period of time with or without any artificial breaks, and their services are otherwise required by the institution which employs them, a time may come in the service career of such employees who are continued on ad hoc basis for a given substantial length of time to regularise them so that the employees concerned can give their best by being assured security of tenure. But this would require one pre condition that the initial entry of such an employee must be made against an available sanctioned vacancy by following the rules and regulations governing such entry. The second type of situation in which the question of regularisation may arise would be when the initial entry of the employee against an available vacancy is found to have suffered from some flaw in the procedural exercise though the person appointing is competent to effect such initial recruitment and has otherwise followed due procedure for such recruitment. A need may then arise in the light of the exigency of administrative requirement for waiving such irregularity in the initial appointment by a competent authority and the irregular initial appointment may be regularised and security of tenure may be made available to the incumbent concerned. But even in such a case the initial entry must not be found to be totally illegal or in blatant disregard of all the established rules and regulations governing such recruitment. In any case back-door entries for filling up such vacancies have got to be strictly avoided. However, there would never arise any occasion for regularising the appointment of an employee whose initial entry itself is tainted and is in total breach of the requisite procedure of recruitment and especially when there is no vacancy on which such an initial entry of the candidate could ever be effected. Such an entry of an employee would remain tainted from the very beginning and no question of regularising such an illegal entrant would ever survive for consideration, however competent the recruiting agency may be. The appellants fall in this latter class of cases." Then, the learned counsel also relied on the Judgment reported in Union of India v. Dinesh Kumar Saxena, . In this case, certain employees were appointed in short-term posts for a fixed period on a fixed pay for work of periodic nature which is available only at the time of each decennial census. They were retrenched on completion of work and ending of the budgetary sanction. The retrenched employees claim for regularisation and absorption. Notwithstanding the length of their service (six years in this case) such retrenches, held, could not be directed by the court to be regularised in the Census Department or absorbed in any other Department. The Supreme Court further held as follows: "Ends of justice will be met if the Directorate of Census Operations, U.P. is directed to consider those respondents who had worked temporarily in connection with the 1981 and/or 1991 census operations and were subsequently retrenched, for appointment in any regular vacancies which may arise in the Directorate of Census Operations and which can be filed by direct recruitment, if such employees are otherwise qualified and eligible for these posts. For this purpose the length of temporary service of such employees in the Directorate of census Operations should be taken into consideration for relaxing the age bar, if any, for such appointment. Suitable rules may be made and conditions laid down in this connection by the department. The department and/or the Staff Selection Commission may also consider giving weightage to the previous service rendered by such employees in the Census Department and their past service record in the Census Department for the purpose of their selection to the regular posts." The learned counsel also cited the decision reported in State of H.P. v. Ashwani Kumar, . In this case the daily-wagers engaged by the State Government on muster-roll basis in Central Scheme and paid out of funds provided by the Central Government. Their services were terminated on closure of the Scheme. In such circumstances, the Supreme Court held that the High Court was not right in giving direction to regularise them or to continue them in other places. 22. We shall now analyse the judgments cited by Mr. R. Ganesan learned counsel for the appellants/petitioners. The learned counsel relied on the decision cited in Supreme Court Employees Welfare Association v. Union of India, A.I.R. 1990 S.C. 344 to emphasise that the decision rendered by Kanakaraj. J, affirmed in writ appeal and also by the Supreme Court is binding on parties and therefore reopening of it is not permissible in law. There is no quarrel or dispute over the proposition put forward by the learned counsel. In this case, the Supreme Court while dismissing the S.L.P. has not given any reasons. It cannot therefore be said that there has been a declaration of law by the Supreme Court in Article 141 of the Constitution of India. This apart, the point now urged by the counsel for the Corporation that the Civil Supplies Corporation's procurement centre is an establishment of a seasonal character and therefore the provisions of the Tamil Nadu Industrial Employment (Confermant of Permanent Status of Workman) Act do not apply to the respondent Corporation since the respondent Corporation is not an Industrial Establishment as defined in Sub-section 3 of the Section 2 of the Act, was not put forward before Kanakaraj. J. The court was not called upon to decide the said question. For the first time, this question was raised before us for our determination. The learned counsel next cited the decision reported in A.R. Antulay v. R.S. Nayak, This decision was sought for the proposition that the judgment of the High Court is binding on all subsequent proceedings in the same case, more so a judgment which was unsuccessfully challenged before the Supreme Court. Next, the learned counsel Mr. R. Ganesan cited the decision reported in Sangappa Gurulingappa Sajjan v. State of Karnataka, 1994 (4) SCC 147. It was cited by the learned counsel for the appellant that even though the new plea now raised by Mr. A.L. Somayaji learned counsel in regard to the applicability of the Tamil Nadu Industrial Establishment for Confermant of Permanent Status of Workman, such plea having been not raised cannot now be allowed to be raised in this writ petition. We are unable to agree with the said contention. In the above case, the review petitioner contended that the declaration under Section 6 was not published within three years from the date of the notification dated May 17, 1984 and therefore, the notification under Section 4(1) shall stand lapsed. The Supreme Court rejected the said plea on a short ground that though this plea was available to the petitioner, he did not raise the same in the first instance and that therefore, by operation of Section 11, CPC, it operates as constructive resjudicata. Thus the Supreme Court has rejected the said plea since the same was raised for the first time before the Supreme Court nd not before the court of first instance. In this case, the new plea was raised in the counter filed by the Corporation in Writ Petition No. 4728 of 1997. Therefore, we are of the view that the Corporation is entitled to raise the plea before us in the first instance and that it will not operate as constructive read judicature against the respondents. Next the learned counsel also cited the Judgment reported in Gone Goun Naidu v. Thandrothu Bodemma, . This was cited by the learned counsel for the proposition that the inter parties judgment rendered by the court of competent jurisdiction, even if it is erroneous, would bind the parties. As already noticed, this Judgment is also distinguishable on the facts and circumstances of the case on hand and for the reasons stated in paragraphs (supra). Next, the learned counsel for the appellants/petitioners Mr. Perumbulavil Radhakrishnan cited in Ram Kumar Rai v. State of U.P. and Ors., 1993 (II) LLJ 1064. This Judgment was rendered by a learned single Judge of the Allahabad High Court. In this case a Class IV employee was appointed on a daily wages basis and he worked for 13 years. His services were terminated and after one day break he was appointed as Daily Wages Work Supervisor. He made representation for regularisation which was rejected. His writ petition was allowed. Citing the above decision, Mr. Perumbulavil Radhakrishnan submitted that under the impugned order in these writ petitions, it is not stated that there is no work left. 23. In reply to the above argument, Mr. A.L. Somayaji learned counsel submitted that the order of termination in that case did not say want of vacancy, whereas in the present case, the order of termination was made for want of work and that thee is also no sanctioned post. 24. Mr. Perumbulavil Radhakrishnan also cited a decision reported in P. Shanmuganahan v. The Registrar Tamil University Thanjavur and 2 others, 1997 WLR 180 (K.A. Swami, CJ. and AR. Lakshmanan, J.) He cited the above decision that the amended requirement of Section 25-F was not complied with and hence the impugned order was set aside as bad in law and that the action of the management constituted illegal retrenchment without following the prescribed procedure and not closure as contended. The above judgment has no application to the case on hand. In that case the appellant before the Division Bench was temporarily engaged as a Watchman under MMR to watch the godown where the materials for the construction of the building Tribal Research Centre of the Tamil University, Udhagamandalam were stored. He was first engaged for 80 days and subsequently on different dates with different intervals in between. His services were terminated and the same was challenged by the workman by raising a dispute before the Labour Court. The Labour Court rejected his request by accepting the statement of the Director of the Tribal Research Centre, Udhagamandalam. The workmen filed the writ petition which was dismissed by the learned single Judge and aggrieved by the same the workmen preferred the writ appeal. The workmen contended that the order of termination from the services on the ground that the appellant's services were no longer required for the Tamil University after his continuous service for a period of 3 years 3 months and 4 days and he contended that the order of termination was illegal and contrary to the provisions of the I.D. Act. Per contra, it was contended that the order of termination is unassailable since it does not confer any service right in this type of temporary engagement and the appellant was engaged and re-engaged only for temporary periods after break as and when required on the recommendations of the Divisional Engineer of the Tamil University. On facts it was found that the workmen was appointed as a watchman not only for the godown in which the building materials were stored for the Tribal Research Centre at Udhagamandalam, but also to look after the materials and properties connected with the other departments of the Tamil University on a daily wages of Rs. 15. The Division Bench rejected the contention of the counsel for the respondents. On the ground that the appellant was appointed for a specified purpose and that when the need i.e., completion of the construction activity had ceased, his services are liable to be terminated cannot be accepted. The above judgment will not advance the case of the petitioners herein. As already noticed, the appellant was appointed though on a daily wages basis, not for a specified purpose, but for other purposes as could be seen from the order of appointment, therefore the Division Bench held that there is no closure of the Tribal Centre and that the Research Centre still continues to exist at Udhagamandalam which requires all types of staff members including a watchman. Therefore, the contention of the University that the services of the appellant are not required was not accepted. As such the Bench concluded that it is not a closure, but it is a retrenchment under Section 2(00) of the Act on the alleged ground that the construction work of the Tribal Research Centre has been completed and had come to an end. The Bench also held that the Mandatory requirement of Section 25-F of the Act has not been complied with by the University by paying the retrenchment compensation to the workmen and hence set aside the impugned order as bad in law. 25. A reading of the judgment cited by Mr. A.L. Somayaji and of the arguments advanced by him and adopted by Mr. R. Balasubramanian, would clearly shows that in order to claim regularisation, the post should be a regular appointment in accordance with the rules. The claim for regularisation should also be based on some specific rules. In the present case, the Establishment namely the "Direct Purchase Centres "/Procurement Centres itself is a seasonal establishment and that the post for which seasonal recruitment were made were not sanctioned post. It is also stated in the counter-affidavit filed on behalf of the respondents in 4243, 4244, etc., batch of 1997 by Mr. S. Natarajan, General Manager (Administration) of the respondent Corporation that a Seniority list of all the staff of the "Direct Purchase Centres" are maintained by the Corporation and they are given opportunities of employment, based on the seniority list during the harvest season and no other person is employed for the operational purposes. It is also stated that in case of any permanent vacancy arising in the Corporation, the temporarily appointed/ousted staff of the "Direct Purchase Centres" are given top priority in filling up the permanent vacancies as per Section 12(3) settlement dated 19.9.91. In fact, several temporarily appointed/ousted staff of the "Direct Purchases Centres" like that of the petitioners were appointed as Assistant Quality Inspector, Typist, etc., on the basis of their seniority. It is also stated that similar agreement has also been reached to that effect on 30.12,96 with the unions and that therefore the temporarily appointed/ousted employees would be absorbed in the regular basis in accordance with their seniority list as and when regular vacancy arises in the respondent Corporation. 26. That being so, the present writ petition seeking for permanent status beyond the scope of Section 12(3) settlement which binds all the temporary appointed/ousted employees of the "Direct Purchase Centres" is liable to be dismissed. It is also mentioned in the affidavit that the Government have now revoked their monopoly procurement policy and consequently the Corporation has ordered for the closure of Direct Purchase Centres and pursuant to such directions, the Direct Purchase Centres are being closed. As a result the staff of the Revenue Department have been reverted back to their parent department and the Corporation staff have been sent back to their respective post and the temporary seasonal employees like the petitioners have been ousted from the service. The termination of the services of the seasonal employees are therefore bona fide, legal and in order and therefore do not call for any interference by this Court. For all the reasons aforesaid, the writ appeals and the writ petitions are dismissed, however there will be no order as to costs. The W.M.Ps. are also dismissed.

Author: A Lakshmanan

Tamil Nadu Civil Supplies ... vs Tamil Nadu Civil Supplies ... on 1 January, 1800

Madras High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA FA No.167 of 2007 The State Of Bihar & Anr Versus Ram Deo Singh & Anr ----------- Sanjeev/- (Mungeshwar Sahoo,J.) 09. 27.06.2011. Perused the office note dated 24.06.2011 and also perused the letter written by respondent No.2 which is kept at flag 'A'. In view of the above letter received from respondent No.2, the notice in limitation matter is accepted as valid service on respondent No.2.

The State Of Bihar & Anr vs Ram Deo Singh & Anr on 27 June, 2011

Patna High Court - Orders

[Section 45A] [Complete Act]

Central Government Act

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C) No. 26280 of 2007(C) 1. SIDDIQUE ... Petitioner Vs 1. TAHSILDAR ... Respondent For Petitioner :SRIC.M.MOHAMMED IQUABAL For Respondent : No Appearance The Hon'ble MR. Justice ANTONY DOMINIC Dated :31/08/2007 O R D E R ANTONY DOMINIC, J ------------------- W.P.(C). 26280/2007 -------------------- Dated this the 31st day of August, 2007 JUDGMENT Complaint of the petitioner is that the vehicle belonging to him has been seized on the allegation that river sand was unauthorizedly transported by him. Ext.P3 in the Writ Petition is the seizure mahazar prepared at the time of seizure. According to the petitioner, he is innocent of the allegations and that it is on the basis of political rivalry proceedings were initiated against him. 2. Be that as it may, in terms of the provisions of the Act and Rules, proceedings are to be finalised by the District Collector. Therefore, I direct the second respondent, the District Collector, to finalise the proceedings against the petitioner as expeditiously as possible at any rate within a period of ten days from the date of receipt of a copy of this judgment. 3. Petitioner shall produce a copy of this judgment before the second respondent for compliance. Writ petition is disposed of as above. ANTONY DOMINIC Judge mrcs 

Siddique vs Tahsildar on 31 August, 2007

Kerala High Court

JUDGMENT N.P. Singh, J. 1. This appeal, as well as Misc. Appeal Nos. 680/ 1995 and 681/1995, arise out of the same accident and a common award was passed by the Commissioner for Workmen's Compensation. Hence the appeals are disposed of by this common order. 2. The appeals are directed against the award dated July 11, 1995 passed by the Commissioner for Workmen's Compensation (Labour Court No. 1), Jabalpur in Case Nos. 81/1994, 82/1994 and 83/1994, awarding a compensation of Rs. 19,706 + Rs. 200/- to the respondent Munnalal in M.A. No.733/1995; Rs. 31,197+costs Rs. 200/-to respondent Bishan Singh in M.A.No. 680/1995; and Rs. 31,197/-+costs Rs.200/- to the respondent Kunwar Singh in M.A.No. 681/1995. 3. The facts giving rise to these appeals are that the respondent Preetam Kaur was the owner of truck bearing Registration No. MBK- 7476. The respondents Munnalal, Bishan Singh and Kunwar Singh were working as labourers in the said truck. On October 30, 1994, the truck in question was coming from Dhuma in Seoni district loaded with wooden logs. When it reached Banjari Ghat the truck turned turtle and the respondents suffered bodily injuries. All the three respondents separately preferred claim cases before the Commissioner for Workmen's Compensation at Jabalpur and the Commissioner by the impugned award, awarded compensation as mentioned above, holding the Insurance Company liable to pay compensation. 4. As against that the appellant/Insurance Company has preferred the instant appeals under Section 30 of the Workmen's Compensation Act, 1923. The learned counsel for the respondents has contended that no substantial question of law is involved in these appeals and the appeals are liable to be rejected. 5. Shri Sanjay Agrawal, learned counsel for the appellant/Insurance Company, has contended that the impugned award was passed on the irrelevant evidence of Dr. V.K. Dong, who was not an eye-witness to the incident, and had examined the respondents four months after the incident. It is alleged that after the accident, the respondents were admitted in the Govt. Hospital and were discharged after their treatment. But the records of the Govt. Hospital were not requisitioned by the Commissioner despite the request made by the appellant. Therefore, an adverse inference ought to have been drawn for non-production of the official documents from the Govt. Hospital. 6. As far as (sic.) the evidence of Dr. Dong is concerned, he is not a Government doctor, nor had he examined the respondents immediately after the accident. In between the date of accident and the examination of the respondents by Dr. Dong, there is a gap of four months and the injuries alleged to have been sustained by the respondents could have been caused in some other incident also. 7. Shri Agrawal has further contended that if the substantial question of law is a mixed question of law and facts, it will be deemed to be a question of law and an appeal under Section 30 of the Workmen's Compensation Act would be maintainable and consequently it will be open to the Court to reconsider the evidence for the determination of the question of law. The contention of Shri Agrawal is well-founded. In this connection it will be apt to mention the decision of the Apex Court in Dhirajlal v. I.T. Commissioner, Bombay, AIR 1955 SC 271 wherein it has been held : "If the Court of fact whose decision on a question of fact is final, arrives at a decision of fact by considering material which is irrelevant to the enquiry, or by considering material which is partly relevant and partly irrelevant, or bases its decision partly on conjectures, surmises and suspicions and partly on evidence, then in such a situation clearly an issue of law arises. And in such a case, it is well established that when a Court of fact acts on material, partly relevant and partly irrelevant, it is impossible to say to what extent the mind of the Court was affected by the irrelevant material used by it in arriving at its finding. Such a finding is vitiated because of the use of inadmissible material and thereby an issue of law arises," In this connection reference may also be made to the case of Mangal Chand v. Mumtaz Begum. 8. In the instant case, the impunged award is based on the irrelevant and inadmissible evidence of Dr. V.K. Dong. As there is no nexus between the injuries sustained by the respondents and their examination by Dr. Dong, the award based on irrelevant and inadmissible evidence vitiates the findings. The award is thus bad in law and is liable to be set aside. 9. For the reasons mentioned above, the impugned award is set aside. The case is remanded back to the Commissioner for Workmen's Compensation (Labour Court No. 1), Jabalpur for deciding the case afresh in accordance with law after recording fresh evidence. The respondents are directed to appear before the Commissioner for Workmen's Compensation (Labour Court No. 1) Jabalpur on November 22, 1996.

Author: N Singh

National Insurance vs Bishan Singh on 13 September, 1996

Madhya Pradesh High Court

Court No. - 27 Case :- WRIT - B No. - 14441 of 1984 Petitioner :- Smt. Tileshari Respondent :- D.D.C. and others Petitioner Counsel :- S.C.Yadav,S L Yadav Respondent Counsel :- S.N.Singh,A K Rai,R.N.Singh,S.C. Civil misc. delay condonation application dated 6.4.2010 Hon'ble Mrs. Poonam Srivastav,J. Heard. Cause shown is sufficient. Delay in filing substitution application is condoned. Substitution application is treated to be filed within time. Application under Section 5 of Indian Limitation Act is allowed. Order Date :- 14.7.2010 rkg Civil misc. substitution application no.102146 of 2010 Hon'ble Mrs. Poonam Srivastav,J. This is a substitution application filed with a prayer to substitute heirs of respondent no.3 who is reported to be dead. Vakalatnama has already been filed on behalf of heirs of respondent no.3. Substitution application is allowed. Let name of respondent no.3 be deleted and in her place, her heirs be substituted as respondent nos.3/1 and 3/2 in the array of parties. Necessary correction be carried out. Order Date :- 14.7.2010 rkg Civil misc. substitution application no.52685 of 1999 Hon'ble Mrs. Poonam Srivastav,J. This is a substitution application filed with a prayer to substitute heir of sole petitioner Mst. Tileshari, who is reported to be dead. Substitution application is disputed by respondent's counsel. Counter and rejoinder affidavits have been exchanged. Submission is that Tilakdhari died in the year 1968. Mst. Tileshari remarried after death of Tilakdhari. Haushila is son of another husband. The entire dispute revolves around the question whether sole petitioner (now deceased) is entitled for share of her first husband Tilakdhari or not. If Haushila is substituted in place of sole petitioner, claim of respondent no.3 will stand frustrated. This fact is disputed by petitioner's counsel. However, since question whether Haushila is son of Tilakdhari or not, is subject matter of the dispute, evidently, writ petition cannot be decided against a dead person. In view of this, substitution application is allowed subject to decision of the writ petition. Substituted heir of sole petitioner cannot claim any right or title on the basis of the fact that substitution application has been allowed. Let name of sole petitioner be deleted and in her place, her heir Haushila be substituted as petitioner no.1/1 in the array of party. Necessary correction be carried out in the array of parties. Order Date :- 14.7.2010 rkg Civil misc. abatement application no.55887 of 2002 Hon'ble Mrs. Poonam Srivastav,J. Abatement application is rejected. Order Date :- 14.7.2010 rkg Hon'ble Mrs. Poonam Srivastav,J. List this petition for final hearing in the next cause list. Order Date :- 14.7.2010 rkg/14441-84

Smt. Tilesara vs D.D.C. on 14 July, 2010

Allahabad High Court

JUDGMENT J.N. Bhatt, C.J. Page 2163 1. In this group of writ petitions under Article 226 of the Constitution of India, since common questions of facts and law are involved, they have been heard simultaneously, and are, now, being disposed of by this common judgment, upon consensus, and joint request made by the counsels appearing for the parties. 2. In all these writ petitions, the factual profile in each case may be different, but the main questions of some of facts and law in the light of the factual panorama are revolving round as to whether the appointment of the petitioners in the respective Colleges under respective Universities could be said to be legal or illegal, or, regular or irregular, for the purpose of consideration and determination of the claim for regularization of their services in respective Colleges on different cadres and posts of class III and IV viz. Assistant, Laboratory Technician, Library Assistant, Sorter (Class III), Clerk, Computer Programmer, Audio Visual Technician, Physical Training, Security Guard, Typists, Store Keeper, Account Clerk, Cook, Driver, Orderly, Peon, Chaukidar, etc. As noticed above, since main factual situation in each petition raises common questions of law, more so, in the light of latest exposition or proposition of service jurisprudence involved in this group of petitions, and latest case law lucidly, expounded by the Constitution Bench decision of the Hon'ble Apex Court in the case of Secretary, State of Karnataka and Ors. v. Umadevi (3) and Ors. , learned Counsels for the parties have been heard intermittently on three occasions. Virtually, common submissions, which are placed in focus, are with regard to their claim of regularization in service as they have been working in respective cadres and posts in different departments of the respective Colleges by way of public employment and as such, they are entitled to be regularized. Page 2164 3. The petitioners have claimed in this group of writ petitions, for the following reliefs that: (i) payment of the arrears of salary be directed to be made; (ii) in some cases, services of the persons junior to the petitioners have been regularised in the concerned college/colleges ignoring the claim of the petitioners, which has resulted into manifest injustice to them. Therefore, they have claimed for regularisation on that basis; (iii) the petitioners are entitled to be regularised on the ground of arbitrariness and discrimination meted out to them by the authority in matters of regularising the services of some and not all; (iv) though some of the petitioners have been regularised by virtue of the Government decision or the decision of the master or the management of the college/colleges and the concerned University, but the effect of that decision is not being given retrospectively from the date when they entered into service; (v) if the petitioners were not to be regularized now at this stage and age, apart from great injustice being caused to them, they will be out of employment market because of age bar and post and employment opportunity and they will be put to penuary and starvation; (vi) the unpaid salary to some of the petitioners, who are working, should be directed to be paid with interest; (vii) in some of the matters, the claim is mainly for back wages after regularisation in the respective departments; this is the gist of submission. 4. Learned Counsels appearing for the respondents authorities and the State have mainly placed reliance on the latest Constitution Bench judgment in the case of Uma Devi (3) (Supra) and have countenanced the submissions raised by the counsels for the petitioners. It is also noticed from the submissions that some of the appointments are totally illegal, on unsanctioned posts, whereas, in some of the cases, the appointments have been made at the relevant point of time without observing due process of recruitment and, therefore, regularisation of service, in such cases, cannot be directed. However, they also contended that in view of the aforesaid decisions rendered in Umadevi (3) (supra), cases of the petitioners of this group of cases may be considered in the light of the observations made in that judgment in paragraph 53 and, wherever it is permissible and possible, in the light of the ratio propounded in that decision, appropriate authority may be directed to consider or re-examines their cases. 5. Let there be a narration of some of the expositions of law lucidly propounded in the Constitution Bench decision in the case of Uma Devi (3) (supra) at this stage. 6. The absorption, regularisation, or permanent continuance of temporary, contractual, casual, daily-wage or ad-hoc appointees or employees appointed or recruited and continued for long in public employment de-hors the constitutional scheme or public employment cannot be done. However, the submissions in respect of observations made in Uma Devi (3) in paragraph 53 may be relevant, as submitted, upon consensus, at this point of time. 7. Indisputably, the public employment as constitutional scheme has been designed and envisaged by the Government and its instrumentalities on the basis of celebrated Page 2165 doctrine "due process". It cannot be questioned that public employment entails equality of opportunities, in our Constitution. For the public employment, specific provisions are also provided in our Constitution under Articles 14 and 16 in special. From the hallmark of conjoint reading and constitutional provisions of Articles 14 and 16 of the Constitution with regard to the public employment, it is very clear that equal opportunity is the basis for selection or preparation of waiting or select list which ought to be in consonance with the relevant provisions prescribed for the proceeding and process of recruitment in the 'public employment' and it is, therefore, settled proposition of law that any recruitment in public employment has to be in terms of the constitutional scheme and statutory provisions made for recruitment, and regularization. 8. The relevant observations in paragraph 53 of the judgment of the Hon'ble Apex Court in Umadevi (3) case, are material which read here, as under: One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa State of Mysore v. S.V. Narayaanappa , R.M. Nanjundappa R.N. Nanjundappa v. T. Thimmiah and B.M. Nagarajan B.N. Nagarajan v. State of Karnataka and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme. 9. In the light of the exposition of law, regularisation, absorption and continuance on permanent basis of temporary, contractual, casual, daily wage or ad hoc appointees or their appointments could be considered as one time measure by the Government in the light of the observations made in paragraph 53 of the judgment in the case of Uma Devi (3) (supra), as quoted above. 10. It is in these contexts, as well as, in the backdrop of the submissions raised on behalf of the counsels, in general, and particularly the counsel for the respondents, this Court is inclined to dispose of this group of petitions by giving the following directions to the respondents: Page 2166 (1) The Vice Chancellor of the concerned Universities, shall constitute a Committee of three members within a period of two months from the date of receipt of the writ of this Court, to examine the manner and mode and the type of appointment and whether such appointments are in consonance with the Recruitment Rules on regular posts, or irregularly made or illegally made or not. (2) Such Committee shall consider the individual case after giving an opportunity of hearing to the affected employees, the procedure for which the Committee will evolve its own modality and modus operandi so as to reach to a conclusion as to the nature of the appointments of the employees covered in this group of petitions and to ascertain whether their appointments are regular, irregular or illegal and whether they are falling within the ambit of the observations made in paragraph 53 of the decision in Secretary, State of Karnataka and Ors. v. Uma Devi (3) (supra). (3) The Committee shall, undoubtedly, take a decision in the light of the law laid down by the Constitution Bench of the Hon'ble Apex Court in "Secretary, State of Karnataka" (Supra) and in particular in the light of the observations which are quoted herein above. (4) It shall, also, be remembered that the exercise of regularisation, if required, shall be a one time measure. (5) The exercise by the Committee is directed to be completed within six weeks after the creation, thereof, and in the event of any necessity it will be open for the concerned party to seek extension of time by taking leave from this Court. (6) The contention that in some of the cases out of the present group in earlier round of litigation finality has been attained and achieved shall, also, be examined by the Committee. (7) Until the Committee concludes it process and exercise directed herein above, the status quo in respect of the petitioners obtainable as on today, is directed to be maintained. 11. In view of the foregoing discussions and the propositions of law, this group of 85 writ petitions under Article 226 of the Constitution shall, accordingly, stand disposed of with no order as to costs.

Author: J Bhatt

Smt. Chandra Sharma And Ors. Etc. ... vs The State Of Bihar And Ors. Etc. ... on 13 April, 2007

Patna High Court

Central Information Commission Room No. 5, Club Building, Near Post Office Old J.N.U. Campus, New Delhi - 110067 Web: www.cic.gov.in Tel No: 26161997 Case No. CIC/SS/A/2011/000226 Name of Appellant : Mr. Murli Dhar Tiwari Name of Respondent : Delhi Police, North District, Delhi. ORDER The Commission has received an appeal dated Nil (received on 20.1.2011) from Mr. Murli Dhar Tiwari u/s 18 of the RTI Act, 2005, against Addl. Deputy Commissioner of Police, North District, Delhi stating that the first- appellate authority has not decided his first-appeal dated 2.12.2010 pertaining to his RTI-request dated 10.9.2010. 2. Perused the documents submitted by the Appellant. It is observed that Appellant's RTI-request dated 10.9.2010 was replied to by CPIO, Addl. Deputy Commissioner of Police, North District, Delhi vide letter No. 8298 dated 6.10.2010. 3. The Appellant filed his first-appeal on 2.12.2010 before AA, Deputy Commissioner of Police, North District, Civil Lines, Delhi - 110054 which was not decided by AA. 4. In order to avoid multiple proceedings under section 19 and 18 of the RTI Act, viz., appeals and complaints, the matter is remitted to AA, Deputy Commissioner of Police, North District, Civil Lines, Delhi (along with a copy of complaint), with the following directions: i) In case the first appeal dated 2.12.2010 has not been disposed of by AA, he should dispose of the first appeal by passing a speaking order, after hearing the parties in the matter, within two weeks of receipt of this order. ii) In case AA has already disposed of the first-appeal, he should furnish a copy of his order to the Appellant within one week of receipt of this order. Case No. CIC/SS/A/2011/000226 5. In case the Appellant is not satisfied with the decision of First Appellate Authority, he is at liberty to file a second appeal afresh before the Commission, under section 19(3), along with complaint u/s 18, if any, within the prescribed time limit. The Appeal is disposed of with above directions. Sd/- (S. Padmanabha) U.S. & Dy. Registrar Copy to: 1. Mr. Murli Dhar Tiwari, R/o 116, shiv Shankar Old Cloth  Market,  Pul Qutab Road, Sadar Bazar, Delhi - 110006. 2. The First Appellate Authority, Dr. Sagar Preet,  Deputy Commissioner of Police, North District, Civil Lines, Delhi - 110054. 

Mr.Murli Dhar Tiwari vs Ministry Of Home Affairs on 20 May, 2011

Central Information Commission

Gujarat High Court Case Information System Print FA/330120/2008 1/ 3 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 3301 of 2008 ====================================================== SPL.LAQ OFFICER - Appellant(s) Versus CHAMPAKLAL DAHYABAI & 8 - Defendant(s) ====================================================== Appearance : GOVERNMENT PLEADER for Appellant(s) : 1, MR AJ SHASTRI for Defendant(s) : 1 - 2,4 - 9. None for Defendant(s) : 3, 3.2.1, 3.2.2, 3.2.3, 3.2.4, 3.2.5, 3.2.6, 3.2.7, 3.3.1, 3.3.2,3.3.3 ====================================================== CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 04/08/2008 ORAL ORDER1. This appeal at the instance of State Government under section 54 of the Land Acquisition Act read with section 96 of Civil Procedure Code is against the judgment and award dated 22.12.2000 passed by learned Civil Judge (S.D.), Surat. 2. The lands in question are situated at village Magdalla, Taluka Choryasi, District Surat. The said lands were acquired for the purpose of constructing Ichchhapore Magdalla Road. The notification under section 4 of the Land Acquisition Act, 1894 (the Act) was published on 29.7.1981 and the notification under section 6 was published on 12.10.1982. After following necessary procedure the Special Land Acquisition Officer declared his award dated 20.6.1984 whereby he has awarded Rs.10 per square meter as against the demand of Rs.200 per square meter by the applicants. 3. Feeling aggrieved by the judgment and award passed by the Special Land Acquisition Officer the original claimants preferred Reference under section 18 of the Land Acquisition Act. The said Reference came to be decided by learned Civil Judge (S.D.), Surat who by judgement and award dated 22.12.2000 awarded Rs.40/- per square meter as the market value of the acquired land. It is against the said judgment and award the present appeal has been filed. 4. On the last occasion learned Advocate for the original claimant stated that the claimants have preferred appeal against the award of the Reference Court for enhancement of the compensation. However, the Registry has put up a note along wit this appeal stating that the First Appeal Stamp No.1330/2002, which is filed by the original claimants, has been dismissed for default by this Court on 2.9.2003. Therefore this matter is taken up for hearing. 5. Learned Advocate for the appellant submitted that the Reference court has wrongly based the judgment on the sale instance of the year 1989, whereas the Notification under section 4 in the present case was published in 1981 He further submitted that the learned Judge ought to have appreciated that the registered Sale Deed of the year 1989, which is relied upon by the learned Judge is of a plot of land. It is further submitted htat the documents produced by the original claimants are of the year 1989-90 whereas the Notification under section4 of the Act in the present case was published on 19.7.1981. He, therefore, submitted that the appeal deserves to be allowed. 6. As a result of hearing and perusal of the record, I am of the view that the Reference Court has considered the matter in depth and considered the evidence in details from para 8 to 12. The Reference court has considered the evidence of previous owner of nearby land and the evidence at list Exh.66, Exh.43 and the oral evidence which clearly showed that the nearby land of the acquired land was purchased at higher prices. The Reference Court has also found that the lands of the claimants are very near to Surat City and it is in the developing area and also has high potential value. 7. Thus, in view of the above it is clear that it is clear that the Reference Court has taken into consideration various sale instances and the price increase, the location, etc. Looking to the facts and circumstances of the case this Court is satisfied that the impugned judgment and award do not merit any interference in the appeal. The impugned judgement, taken in its overall perspective, is not assailable. I agree with the assessment of the evidence on the part of the Reference Court, the conclusions drawn therefrom and the findings of fact recorded. The appeal is, therefore, dismissed. [K.S. JHAVERI, J.] ar     Top

Author: Ks Jhaveri,&Nbsp;

Spl.Laq vs Champaklal on 4 August, 2008

Gujarat High Court

Gujarat High Court Case Information System Print CR.MA/8753/2005 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 8753 of 2005 ========================================================= MOHAMMAD SHAHID ABDUL REHMAN MEMON - Applicant(s) Versus AJAYKUMAR RAMESHCHANDRA MITTAL & 2 - Respondent(s) ========================================================= Appearance : MR RR MARSHALL for Applicant(s) : 1, RULE SERVED for Respondent(s) : 1 - 2. MR LR PUJARI, ADDL.PUBLIC PROSECUTOR for Respondent(s) : 3, ========================================================= CORAM : HONOURABLE MR.JUSTICE MD SHAH Date : 01/08/2011 ORAL ORDER When the matter was called out even in second round also learned advocate for the petitioner is not present. Hence the matter is dismissed for default. Rule is discharged. Ad-interim relief granted earlier shall stand vacated. ( M.D. SHAH, J. ) syed/     Top

Author: Md Shah,

Mohammad vs Ajaykumar on 1 August, 2011

Gujarat High Court

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

Central Government Act

IN THE HIGH COURT OF KERALA AT ERNAKULAM Crl.MC.No. 1955 of 2010() 1. K.A.RAUF, S/O. K.C.AHAMMED, ... Petitioner Vs 1. STATE OF KERALA, REPRESENTED BY THE ... Respondent For Petitioner :SRI.HARISANKAR V. MENON For Respondent : No Appearance The Hon'ble MR. Justice V.RAMKUMAR Dated :08/06/2010 O R D E R V.RAMKUMAR, J. ------------------------------------- Crl.M.C. No. 1955 of 2010 -------------------------------------- Dated this the 8th day of June, 2010 ORDER I am not inclined to relax or lift the direction in condition No.6 of the order dated 12.3.2010 in Criminal M.C.No.329/2010 on the file of the Sessions Court, Kozhikkode, restraining the petitioner from leaving State of Kerala without the previous permission of the Court. In fact, on the request of the petitioner the learned Judge had relaxed the condition for a period of one month earlier. With regard to condition No.1 obliging the petitioner to report before the Investigating Officer on all days between 8 a.m and 10 a.m till the filing of the final report is concerned, having regard to the passage of time, I am inclined to modify the said condition and direct that hereafter the petitioner shall report before the Investigating Officer once in a week on all Mondays between 9 a.m and 11 a.m. This Criminal M.C is partly allowed as above. V.RAMKUMAR, JUDGE dmb 

K.A.Rauf vs State Of Kerala on 8 June, 2010

Kerala High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM Crl.MC.No. 3530 of 2010() 1. THANKACHAN,AGED 51 YEARS, ... Petitioner Vs 1. STATE OF KERALA,REPRESENTED BY THE ... Respondent 2. TOMY M.VARIKATT,AGED ABOUT 54 YEARS, For Petitioner :SRI.RENJITH B.MARAR For Respondent : No Appearance The Hon'ble MR. Justice V.RAMKUMAR Dated :20/08/2010 O R D E R V. RAMKUMAR, J. = = = = = = = = = = = = = = Crl.M.C. No.3530 of 2010 = = = = = = = = = = = = = = = Dated: 20.08.2010 ORDER Petitioner, who is the accused in C.C.No.211/2000 on the file of the J.F.C.M-I, Thodupuzha for an offence punishable under Section 138 of the Negotiable Instrument Act, 1881 and whose case is now pending as L.P. No.30/2001 seeks a direction to the said Magistrate to release the petitioner on bail on the date of his surrender itself. 2. Admittedly, non-bailable warrants of arrest are pending against the petitioner. The circumstances under which those non-bailable warrants of arrest came to be issued against the petitioner are not discernible to this Court. It is only proper that the petitioner surrenders before the learned Magistrate and seeks regular bail. Accordingly, this Crl.M.C. is disposed of permitting the petitioner to surrender before the learned Magistrate and file an application for regular bail within a period of two weeks from today. In case, the petitioner complies with the above condition, his bail application shall be considered and disposed of on merits preferably on the same date on which it is filed notwithstanding the pendency of any non-bailable warrants against him. Dated this the 20th day of August, 2010 V. RAMKUMAR, (JUDGE) sj 

Thankachan vs State Of Kerala on 20 August, 2010

Kerala High Court