Datasets:

Ayansk11

/

Chatkanoon

like 0

Gujarat High Court Case Information System Print WPPIL/32/2011 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD WRIT PETITION (PIL) No. 32 of 2011 ================================================= BHAPADIA (BRAHMAN) NAVINBHAI MAYARAM & ANOTHER Versus WATER SHED DEVELOPMENT COMMITTEE THROUGH ITS CHAIRMAN & OTHERS ================================================= Appearance : MR KASHYAP R JOSHI for the petitioners. None for RESPONDENT : 1 - 3. ================================================= CORAM : HONOURABLE THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 18/04/2011 ORAL ORDER(Per : HONOURABLE THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA) Counsel for the petitioner sought permission to withdraw the writ petition with a liberty to file fresh petition with proper name and cause title of the petition. The writ petition stands disposed of. (S.J. Mukhopadhaya, CJ.) (J.B.Pardiwala, J.) *mohd     Top

Author: Mr.S.J.Mukhopadhaya,&Nbsp;Mr.Justice J.B.Pardiwala,&Nbsp;

Appearance : vs None For on 18 April, 2011

Gujarat High Court

के न्द्रीय सूचना आयोग Central Information Commission बाबा गंगनाथ मागग, मुननरका Baba Gangnath Marg, Munirka नई दिल्ली, New Delhi - 110067 नितीय अपील संख्या / Second Appeal No.:- CIC/DIRED/A/2022/631982-UM Ms. Anita Mishra ....अपीलकताग/Appellant VERSUS बनाम CPIO O/o The Dy. Director of Education, Directorate of Education, Zone-II, Madhuban Road, Shakarpur, Delhi-110092 प्रनतवािीगण /Respondent Date of Hearing : 23.01.2023 Date of Decision : 30.01.2023 Date of RTI application 29.01.2022 CPIO's response 21.02.2022 Date of the First Appeal 14.03.2022 First Appellate Authority's response 18.04.2022 Date of diarized receipt of Appeal by the Commission 03.06.2022 ORDER FACTS The Appellant vide his RTI application sought information on 05 points, as under:- The CPIO, Directorate of Education, vide letter dated 21.02.2022 furnished a reply to the Appellant. Dissatisfied with the reply received from the CPIO, the Appellant filed a First Appeal. The FAA vide order dated 18.04.2022 directed the PIO to provide the revised reply to the Appellant as per the provisions of RTI Act, 2005. Thereafter, the Appellant filed a Second Appeal before the Commission. HEARING: Facts emerging during the hearing: The following were present: Appellant: Absent Respondent: Mr. S K Talwar SO, Ms. Meenakshi Goyal HOS, Present in Person The Appellant remained absent during the hearing. The Respondent informed the Commission that the Appellant vide email dated 19.01.2023 has stated that she has received all her dues for which she had submitted the appeal in RTI and therefore she does not want to pursue the case further. DECISION: Keeping in view the facts of the case and the submissions made by the Respondent and on the perusal of the email of the Appellant dated 19.01.2023, the Commission observes that since the matter is resolved no further intervention of the Commission is required in the matter. The Appeal stands disposed accordingly. (Uday Mahurkar) (उिय माहूरकर) (Information Commissioner) (सूचना आयुक्त) Authenticated true copy (अभिप्रमाणित एवं सत्यापित प्रतत) (R. K. Rao) (आर. के. राव) (Dy. Registrar) (उप-पंजीयक) 011-26182598 / [email protected] दिनांक / Date: 30.01.2023

Author: Uday Mahurkar

Anita Mishra vs Directorate Of Education on 30 January, 2023

Central Information Commission

[Section 20A] [Complete Act]

Central Government Act

Gujarat High Court Case Information System Print CR.MA/6228/2011 2/ 2 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 6228 of 2011 In CRIMINAL APPEAL No. 212 of 2009 ===================================== SANJAY @ KOLO PRAVIN - Applicant(s) Versus STATE OF GUJARAT & 1 - Respondent(s) ===================================== Appearance : THROUGH JAIL for Applicant(s) : 1, MR KARTIK PANDYA, APP for Respondent(s) : 1, RULE NOT RECD BACK for Respondent(s) : 2, ===================================== CORAM : HONOURABLE MR.JUSTICE RAVI R.TRIPATHI and HONOURABLE MR.JUSTICE P. P. BHATT Date : 11/05/2011 ORAL ORDER(Per : HONOURABLE MR.JUSTICE P. P. BHATT) 1.0 Present application is filed by the applicant - convict through jail seeking 45 days' Temporary Bail so as to attend the marriage of his elder brother, which is scheduled on 20th May 2011. In support of the application, an Invitation Card is produced. 2.0 Rule was issued on 4th May 2011, returnable today i.e. 11th May 2011. 3.0 Learned Additional Public Prosecutor made available for perusal the Jail Remarks. On perusal of the Jail Remarks, it transpires that the applicant - convict has enjoyed one Furlough in the months of November - December 2010 and has reported in jail in time. 4.0 Taking into consideration the contents of the application, the application is allowed. The applicant - convict is ordered to be released on Temporary Bail for a period of 15 days from the date of his release, on his executing a personal bond of Rs.5,000/- (Rupees Five Thousand only) to the satisfaction of the jail authorities. 4.1 The applicant - convict shall surrender to the jail authorities on expiry of the Temporary Bail period. 4.2 Rule is made absolute to the aforesaid extent. [ Ravi R. Tripathi, J. ] [ P. P. Bhatt, J. ] hiren     Top

Author: Ravi R.Tripathi,&Nbsp;Mr.Justice P.P.Bhatt,&Nbsp;

Sanjay vs State on 11 May, 2011

Gujarat High Court

> Title: Need to resume the construction of Pala Maneri and Vishnugad Pipalkoti hydro-electric projects and to continue the construction of Lohari Nagpala power project in Uttarakhand. श्री सतपाल महाराज (गढ़वाल): मैं आपके माध्यम से इस सदन का ध्यान उत्तराखंड राज्य की जल विद्युत परियोजनाओं की ओर आकर्षित करना चाहता हूं। प्रदेश की पहली निर्वाचित सरकार ने एक दशक से बंद पड़ी मनेरीभाली द्वितीय जल विद्युत परियोजना शुरू की जो अब 304 मेगावाट बिजली उत्तराखंड को दे रही है। तत्पश्चात 480 मेगावाट की पाला मनेरी जल विद्युत परियोजना भी शुरू की गई, जिसे अब वर्तमान प्रदेश सरकार द्वारा बंद करवा दिया गया है।           अब राज्य की सरकार ने एन.टी.पी.सी. द्वारा बनाई जा रही 600 मेगावाट की लोहारी नागपाला परियोजना को भी बंद कराने की सिफारिश प्रधानमंत्री से की है। जबकि स्थिति यह है कि इस परियोजना पर लगभग 600 करोड़ रूपए खर्च हो चुके हैं तथा इस परियोजना को बंद करने पर हजारों करोड़ रूपए और खर्च होंगे। इसी प्रकार 444 मेगावाट की विष्णुगाद पीपलकोटि जल विद्युत परियोजना भी अटकी पड़ी है। इस परियोजना पर भी अब तक 100 करोड़ खर्च हो चुके हैं। उत्तराखंड को देश के पॉवर हाउस के रूप में प्रचारित किया गया तो वहां उद्योगों का तांता लग गया। लेकिन अब, जब नई परियोजनाएं बंद होने लगी हैं तो ऊर्जा राज्य बिजली संकट में फंसने लगा है और उद्योगों का पलायन होने लगा है। अगर इसी तरह परियोजनाएं बंद होती रहीं तो उत्तराखंड ही नहीं बल्कि सारे देश में कहीं भी नयी परियोजना बनाना असंभव हो जायेगा और सन् 2012 तक सरकार का हर घर को बिजली देने का सपना अधूरा ही रह जायेगा।           सरकार इन परियोजनाओं से प्रभावित लोगों के विस्थापन, पुनर्वास एवं मूलभूत समस्याओं पर पुनर्विचार कर सकती है परन्तु हमें अपनी नैसर्गिक ऊर्जा पैदा करने की क्षमता खोनी नहीं चाहिए। मेरा स्पष्ट मानना है कि पर्यावरण पर अवश्य नजर रखे लेकिन यह अनावश्यक रूप से उत्तराखंड जैसे पिछड़े राज्य के विकास में बाधक नहीं बननी चाहिए।           अतः मेरा आपके माध्यम से केन्द्र सरकार से अनुरोध है कि राष्ट्रहित को सर्वोपरि मानते हुए तथा देश के विकास के लिए गंगा से ऊर्जा (बिजली) पैदा करने के लिए तत्काल पाला मनेरी और विष्णुगाद पीपलकोटि परियोजनाओं को शुरू किया जाये और लोहारी नागपाला परियोजना को बंद करने की सिफारिश को न माने। मेरी मांग हे कि राष्ट्रहित में इन परियोजनाओं का निर्माण तत्काल पूरा किया जाये।

Need To Resume The Construction Of Pala Maneri And Vishnugad ... on 25 August, 2010

Lok Sabha Debates

IN THE HIGH COURT OF JHARKHAND AT RANCHI B.A. No.2333 of 2011 Gulam Hussain .... Petitioner Versus The State of Jharkhand ...O.P. Coram : The Hon'ble Mr. Justice Narendra Nath Tiwari For the Petitioner : Mr. A.K.Sinha, Advocate For the O.P. : APP ----- 2/20.05.2011 The petitioner is an accused in the case registered for the offence under sections 379 and 411 of the Indian Penal Code. Learned counsel for the petitioner submitted that the petitioner has been falsely implicated in the case; petitioner is a cleaner of the vehicle; the allegation of removal of the vehicle by the petitioner is wholly false and baseless; he is in custody since October,2010; petitioner is a local permanent resident; there is no chance of his absconding. Learned APP opposed the prayer for bail of the petitioner, but has not disputed the contention made by the learned counsel for the petitioner. Regard being had to the facts and circumstances of the case, the above named petitioner is directed to 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 learned Chief Judicial Magistrate, Chaibasa in connection with Gua P.S. case no.04 of 2010, corresponding to G.R. Case no.33 of 2010. ( Narendra Nath Tiwari, J.) s.b.

Gulam Hussain vs State Of Jharkhand on 20 May, 2011

Jharkhand High Court

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 27.10.2006 CORAM THE HONOURABLE MR. JUSTICE P.SATHASIVAM C.R.P.(PD)Nos.1367 & 1368 of 2005 AND CMP No.16631 of 2005 Kangayam Taluk, Vellakovil Village, Uppupalayam Village Public, rep. by 1.C.D.Dhandapani 2.S.Thangaraj 3.S.Vadivel 4.G.Tamilarasan 5.P.Loganathan 6.R.Chinnappan 7.M.Rasan .. Petitioners in both CRPs. Vs. Kangayam Taluk, Vellakovil Village, Uppupalayam Mudaliar Community Weavers, rep. by 1.M.Rangasami 2.Thangavel 3.Sekar 4.M.Sivakumar 5.Jayalakshmi 6.Padmavathi 7.Perianayaki 8.Selvaraj 9.Rajendran 10.Thangathal .. Respondents in For petitioners : Mr.N.Manokaran in both CRPs. For respondents : Mr.D.Krishnakumar 1 to 4 in both CRPs. For respondents : No appearance 5 to 10 COMMON ORDER Heard both sides. both CRPs. Civil Revision Petitions under Section 115 of the Civil Procedure Code against the common order dated 19.04.2005 made in I.A.Nos.412 & 413 of 2004 in O.S.No.26 of 2002 on the file of the District Munsif, Kangayam. 2. The learned District Munsif, Kangayam, taking note of the relief prayed for in O.S. No.26 of 2002 and finding that the plaintiffs have not prayed for any relief against the public of Uppupalayam Village and that the relief relates to "ABCD" fence, has dismissed Application Nos.412 and 413 of 2004 filed by the third parties seeking for impleadment in the suit as well as to defend the suit in a representative capacity. 3. A perusal of the relief prayed for in the suit shows that the plaintiffs have not prayed for a declaratory decree; it is for a permanent injunction against the defendants therein and also for a mandatory injunction for removal of "ABCD" fence. In the affidavit filed in support of the applications in I.A.Nos.412 and 413 of 2004, the third parties have specifically stated that all of them belong to Uppupalayam, Vellakovil Village and they filed the said application on behalf of the entire villagers of Uppapalayam. It is further stated that they came to know that the plaintiffs have filed the said suit in respect of a Pavadi. It is their claim that inasmuch as the said place-Pavadi is a common property being used by all the villagers, if any dispute/claim regarding the same has to be decided by hearing all the parties, including the villagers of Uppupalayam. 4. It is not in dispute that plaintiffs have filed the said suit in a representative capacity, viz., on behalf of Mudaliar community of Uppupalayam, Vellakovil village, Kangayam Taluk. Though no specific objection was raised with regard to the filing of the suit in a representative capacity, particularly as to the non-compliance of Order 1, Rule 8 of C.P.C., learned counsel appearing for the petitioner in this revision pointed out that the plaintiffs have not strictly adhered to the provisions as stated in Order 1, Rule 8 of C.P.C., as well as Rule 13 and the Form provided in Civil Rules of Practice. Order 1, Rule 8, C.P.C. enables the parties, either as plaintiffs or as defendants, if they have some common interest, to join together and pursue their remedy before the appropriate Court. However, they have to fulfil the conditions prescribed in Order 1 and Rules 8 and 8A, C.P.C. 5. The learned counsel for the petitioner, by drawing my attention to the publication effected in "Daily Thanthi" dated 11.02.2002 by the plaintiff, has submitted that in the absence of any details regarding the relief prayed for and the description of the suit property, the villagers had no opportunity to participate in the suit. He further contended that the plaintiffs have to strictly comply with the provisions of Order 1, Rule 8 and 8-A, C.P.C. The learned counsel for the petitioner also relied on the Judgment of the Orissa High Court reported in AIR 1986 Orissa 100 (SUKADEV VS. SRI SIDHESWAR MAHADEV BIJA SILOD), wherein a learned Judge of the said Court, while considering the Order 1 Rule 8 (2) of C.P.C., has concluded as follows: "Courts when called upon to deal with applications under O.1, R.8, C.P.C., should bear in mind that the provisions contained therein are mandatory and not merely directory and are essential pre-conditions for trial of the case as a representative suit. Courts must see that if they direct that the notice should be by public advertisement, it must disclose the nature of the suit as well as the reliefs claimed therein in order to enable the persons interested to get themselves impleaded as parties to the suit either to support the case or to defend against, it. Further the notice must mention the names of the persons who have been permitted to represent them so that the persons interested may have an opportunity of knowing who have been selected to represent them." Learned counsel also relied on a decision of this court reported in AIR 1987 Madras 187 (THE ASSISTANT COMMISSIONER, H.R. & C.E., SALEM VS. N.K.S.E. MUDALIAR), wherein it is held that the procedure under Order 1, Rule 8 of Code of Civil Procedure has to be followed and without doing so, no relief could be granted to the individual concerned. 6. A reading of the above provisions viz., Order 1, Rules 8, 8-A of C.P.C. and Rule 13 and the Form of the Civil Rules of Practice, clearly show that public notice should disclose full details of the suit viz., nature of the suit as well as the relief/claim made therein to those who are impleaded as parties to the suit, either to support the case or to defend it. Though there is no need to decide the compliance of the said provisions in this revision, as rightly pointed out, in view of the claim of the proposed parties in respect of the subject matter of the property, I am of the view that their presence in the suit would ultimately help the residents of the Uppupalayam village. These materials have not been considered by the learned District Munsif, Kangayam and therefore, I am inclined to accept the claim of the petitioner. Taking note of the fact that the property in question viz., Pavadi is in existence and is being used by all the villagers, only by participating in the suit, it would be possible for them to highlight their stand. However, it is needless to mention that it is for them to substantiate their plea/defence at the time of trial. 7. In these circumstances, the common order passed by the learned District Munsif, Kangayam dated 19.04.2005 made in I.A.Nos.412 & 413 of 2004 in O.S.No.26 of 2002 is set aside. Both the revisions are allowed. No costs. CMP No.16631 of 2005 is closed. raa To 1.The District Munsif, Kangayam. 2. The Record Keeper, VR Section, High Court, Madras.

C.D.Dhandapani vs M.Rangasami on 27 October, 2006

Madras High Court

ORDER H.K. Rathod, J. 1. Heard learned advocate Mr. Dhaval D. Vyas for the applicant and learned advocate Mr. Munshaw for the opponent. 2. Present application is filed by the applicant - respondent workman claiming the benefit under Section 17B of the I.D. Act, 1947. 3. The Labour Court, Junagadh passed an award on 24.12.2001 in Reference No. 267 of 1998 whereby the Labour Court, Junagadh has directed the Corporation to reinstate the respondent workman on the original post with continuity of service without any back wages for intervening period with stoppage of two increments with future effect. The said award is challenged in SCA No. 8861 of 2002 wherein this Court has passed interim order on 3.9.2002 and stayed the reinstatement of the respondent workman. According to respondent workman, he has not reached the age of superannuation as per identity card issued by the Corporation showing the details of his age. According to respondent workman - present applicant, he is not employed in any establishment and not receiving adequate remuneration from employment and he remained without job and not gainfully employed in any establishment. The specific averments made in this application in Para.7 as well as separate affidavit is filed by the respondent workman on 12.12.2007. No counter is filed by respondent - original petitioner. However, today learned advocate Mr. Munshaw places on record the xerox copy of letter dated 12.1.2008 having the security report from Vigilance Department of the Corporation. The respondent workman was dismissed from service on 24.3.1998. The report suggests that respondent is belonging to village Aniyari (Bhimji), Taluka - Dhandhuka. The security person visited the village Aniyari on 11.1.2008 where it was found that workman has left the village Aniyari and went to village Muladharayi, Taluka - Valbhipur. At village Aniyari, the respondent workman is having 7 Acre and 33 Guntha agricultural land and also residential premises in his own name and his son is working in factory at Baroda and the respondent workman is residing at village Muladharayi on rented premises, doing the agricultural work with the family members and according to Corporation, they calculated the price of 20 vigha land, considering Rs. 50,000/- to Rs. 60,000/- amount for one vigha and also considering produce total amount for one maund comes to Rs. 4500 to 5000/-. The son who is working receiving the salary of Rs. 4000 to 5000 and considering the market value of the land in question, it is more than Rs. 10 lacs and per year, the respondent workman is having the income of Rs. 1 and 1/2 lacs. Therefore, according to Corporation the respondent workman is not entitled the benefit of last drawn salary as required under Section 17B of the I.D. Act, 1947. 4. At this juncture, this Court has posed one question to learned advocate Mr. Munshaw, who is appearing on behalf of corporation, whether the Corporation is prepared to reinstate the respondent workman or not. 5. Learned advocate Mr. Munshaw is not able to answer because he requires instruction from the Corporation. 6. Learned advocate Mr. Vyas makes the statement before this Court that respondent workman is prepared to resume the duty as and when order to that effect is passed by the Corporation. 7. The provision made by statutory enactment to help the workman when reinstatement order is stayed by this Court. When employer is not prepared to reinstate the respondent workman and the respondent workman is prepared to resume the duty then question of consideration of some part of gainful employment or some property, earning options and other related income attached to agricultural field. The view taken by the Apex Court in case of Rajinder Kumar Kindra v. Delhi Administration through Secretary (Labour) and Ors. wherein it is observed that employee during forced absence for maintaining his family helping his father in law in his coal depot and living with him having no other source, it is held that it was not gainful employment. 8. This Court has considered that self employment cannot consider to be a gainful employment as required under Section 17B of the I.D. Act, 1947. Section 17B of the I.D. Act, 1947 requires employment/engagement in any establishment and second condition is that receiving adequate remuneration from such employment. 9. This Court has considered the above aspect in a decision reported in 2003 (1) GLH 626 wherein it is observed that self employment cannot consider to be gainful employment within the meaning of Section 17B of the I.D. Act, 1947. The aforesaid decision has been approved by the Division Bench of this Court reported in 2006 II LLJ 191. The agricultural income having property and earning option are totally irrelevant for claiming the benefit under Section 17B of the I.D. Act, 1947. This property was with the workman when he joined the service and son was also there when he joined the service. These cannot considered to be an independent income from employment in any establishment. Therefore, according to my opinion, the contention raised by learned advocate Mr. Munshaw relying upon the security report dated 12.1.2008 cannot be accepted and such activities in agricultural field is not a gainful employment within the meaning of Section 17B of the I.D. Act, 1947 and therefore, the workman is entitled the benefit of Section 17B of the I.D. Act, 1947 from the date of award. 10. Accordingly, the Corporation is directed to pay last drawn wages to the original respondent workman w.e.f. 24.12.2001 till 31.12.2007 within a period of two months from the date of receiving the copy of this order. It is further directed to the Corporation to pay regularly such last drawn wages to the respondent workman so long the main matter is pending and finally decided by this Court. 11. However, it is open for the Corporation either to reinstate the applicant - workman or to pay regularly last drawn wages as required under Section 17B of the I.D. Act, 1947. It is made clear that except as referred above, learned advocate Mr. Munshaw has not made any other submissions before this Court. The xerox copy of the aforesaid letter dated 12.1.2008 is taken on record. 12. In view of the above observations and directions, present civil application is disposed of. Direct service is permitted. 13. Learned advocate Mr. Munshaw requests to fix the main SCA No. 8861 of 2002 for final hearing. 14. Considering the request, main SCA No. 8861 of 2002 is fixed for final hearing in 1st week of April, 2008.

Author: H Rathod

Bhagwanbhai Mansing Detroj vs Gujarat State Road Transport ... on 16 January, 2008

Gujarat High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA Miscellaneous Appeal No.213 of 2010 Satendra Mishra Versus Smt. Chanda Devi ---------------------------------- 10 11-11-2011 As prayed, one week time is granted for removing the defects, failing which this appeal shall stand dismissed without further reference to a Bench. (Shiva Kirti Singh, J.) (Shivaji Pandey, J.) BKS/-

Satendra Mishra vs Smt. Chanda Devi on 11 November, 2011

Patna High Court - Orders

IN THE HIGH COURT OF KERALA AT ERNAKULAM Bail Appl..No. 5364 of 2008() 1. SAVITHRI, D/O.MEENAKSHI, ... Petitioner Vs 1. STATE OF KERALA, REP. BY PUBLIC ... Respondent 2. EXCISE INSPECTOR, NEYYATTINKARA EXCISE For Petitioner :SRI.R.GOPAN For Respondent : No Appearance The Hon'ble MRS. Justice K.HEMA Dated :28/08/2008 O R D E R K.HEMA, J. ----------------------------------------- B.A.No. 5364 of 2008 ----------------------------------------- Dated this the 28th August, 2008 O R D E R This petition is for bail. 2. The alleged offence is under Section 8(2) of the Abkari Act. According to prosecution, on 2.7.2008 the petitioner was found in possession of 5 litres of arrack and she ran away absconding the article, on seeing the Excise officials. 3. Petitioner surrendered before the Magistrate Court on 16.7.2008 and she is in custody since then. Learned Public Prosecutor submitted that he has no objection in granting bail to the petitioner on conditions. Hence, petitioner is granted bail on the following terms and conditions: K.HEMA, JUDGE vgs.

Savithri vs State Of Kerala on 28 August, 2008

Kerala High Court

Court No. - 1 Case :- SECOND APPEAL DEFECTIVE No. - 17 of 2010 Petitioner :- Lachhu And Others Respondent :- Rabbal And Others Petitioner Counsel :- Girija Shankar Srivastava,Sharad Kumar Hon'ble Rakesh Sharma,J. Re: Civil Misc. Delay Condonation Application No. 7950 of 2010 Heard. Cause shown is sufficient. Accordingly, Delay Condonation Application is allowed and delay occurred in filing the Second Appeal is condoned. Re: Second Appeal. Heard learned counsel for the appellants and perused the materials on record, including the two judgments rendered the courts below, that is, the one rendered by the Trial court on 17.1.1989 and the other by the lower Appellate court on 8.10.2009. From perusal of the record, it has emerged that the plaintiff-respondents had filed a Suit No. 431 of 1987, in the Court of Munsif, Mau (Gohna), District Azamgarh, now District Mau against the defendant-appellants for demolition of the huts (Marai) and constructions over the land in dispute and sought a permanent injunction restraining them from interfering in their peaceful possession over the land in dispute. Seven issues were framed by the Trial court on 6.2.1988 covering the dispute raised by the plaintiff-respondents, that is, whether the plaintiffs were owner and in possession of the disputed land and the structure existing thereon?, whether the plaintiffs were entitled for demolition of illegal and unauthorised constructions and encroachments and restoration of the land. In addition to these main issues, some other legal issues were also framed, which find place in the judgments rendered by the Trial court and the lower Appellate court. The Advocate Commissioner's report was sought and the documentary as well as oral evidence were also led before the Trial court. The main dispute raised by the plaintiff-respondents was that the defendants have encroached upon their land in dispute by raising certain constructions. It was pleaded that the defendants had transgressed about 6 fts. land (Three to four hands land as alleged by the plaintiffs). It was also alleged by the plaintiffs that the Handpipe was also installed on their land, which was denied by the defendants by saying that it was installed by the Pradhan from the Block Development's funds. Ultimately, the Trial court, considering the pleadings of the parties and upon appraisal of evidence, oral and documentary, has partly allowed the suit recording findings of fact and arriving at a conclusion that the plaintiffs' land was transgressed. However, the Trial court has also declined to demolish the constructions raised by the defendants. The lower Appellate court has also affirmed the findings and conclusions of the Trial court. Thus, as a result of these decisions, the dispute regarding three to four Haanths (about 6 fts. land) encroachment of the land and construction of huts etc. between the two neighbours was set at rest by the courts below after about 22 years of litigation as the Suit was instituted in the year 1987 and the judgment of the lower Appellate Court was rendered on 8.10.2009. Now the defendants appellant have approached this Court by filing the present Second Appeal. Learned counsel for the Appellants has relied upon two judgments as reported in AIR 1976 SC 2602, Maharaj Singh v. State of Uttar Pradesh and AIR 1983 Allahabad 450, Smt. Kaniz Fatima (deceased) and another v. Shah Naim Ashraf to highlight the point that the proper issues were not framed by the Trial court. From a perusal of the pleadings, it appears that so far as the controversy is concerned, all the issues were framed by the Trial court covering the dispute and no other issue could have been framed by the Trial court in a dispute between two neighbours of a remote Village of the District Mau regarding possession of an Abadi land, Sahan and regarding constructions and existence of Thatchet huts (Marai) having grass roofs. Both the courts below have recorded concurrent findings of fact dealing with oral and documentary evidence and upon consideration of pleadings of the parties. In my opinion, upon considering the controversy in its entirety, even the courts below have condoned the unauthorised constructions as alleged by the appellants raised on their land by encroaching about 6 fts. of land. Thus, in the opinion of this Court, all the issues covering the dispute were framed by the courts below. No ingredients as required under Section 100 of the Code of Civil Procedure were attracted in the present case requiring interference by this Court. This Court has also scrutinized this case in the light of the decisions of the Hon'ble Apex Court as reported in AIR 2008 SC 1749, Kashmir Singh Vs Harnam Singh and another, AIR 1999 SC 2213, Kondiba Dagadu Kadam Vs. Savitribai Sopan Gujar and others and (1995) 6 SCC 213, Kashibai W/O Lachiram and another Vs. Parwatibai W/o Lachiram and others and does not find any illegality or infirmity in the judgments of the courts below. In view of the discussions made above, no substantial question of law arises to be considered in this Second Appeal. The Second Appeal, being devoid of merits, is dismissed. Order Date :- 13.1.2010 bgs/

Lachhu And Others vs Rabbal And Others on 13 January, 2010

Allahabad High Court

[Complete Act]

Central Government Act

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Misc No. M-31082 of 2009 Date of decision : 11.12.2009 Rajbir Kaur and another ....Petitioner V/s State of Punjab and others ....Respondents11.12.2009 (RAJAN GUPTA) Ajay JUDGE BEFORE : HON'BLE MR. JUSTICE RAJAN GUPTA Present: Mr. Gurbachan Singh, Advocate for the petitioners. Mr. A.S. Jatana, Addl. Advocate General, Punjab. RAJAN GUPTA J. (ORAL) This is a petition filed under Section 482 of the Code of Criminal Procedure seeking directions to provide protection to the petitioners, as they apprehend danger to their life and liberty at the hands of respondents No. 4 to 7. Learned counsel at the outset submits that petitioner No. 1 is a minor. According to the counsel, petitioner No. 1 is entitled to protection in light of the judgment reported as Ridhwana & Anr. Vs. U.T. Administration & others. 2008(4) RCR(Crl.) 242. Learned counsel for the State submits that representation Annexure P-4 filed by the petitioners shall be looked into by respondent No. 2 and adequate steps shall be taken if the circumstances so warrant. In view of the statement made by learned counsel for the State, no further orders are called for at this stage. Disposed of.

Rajbir Kaur And Another vs State Of Punjab And Others on 11 December, 2009

Punjab-Haryana High Court

ORDER D.M. Patnaik, J. 1. In this writ petition the petitioner assails the notice dated 10-10-1981 for cancellation of the lease and the order dated 16-2-1982 of the revisional authority cancelling the lease under Section 7-A (3) of the Orissa Government Land Settlement Act, 1962 (for short, 'the Act.') 2. Petitioner's case is she was granted lease of an area measuring Ac. ,2.00 decimals in mouza Andharua in the district of Khurda under Khata No. 805, plot No. 2708 of the previous settlement in W. L, Lease Case No. 1160/78 by the Tahasildar on 20-10-1978. This was settled for agricultural purpose under the approved lease principles after due enquiry. Consequently the R. O. R. was corrected. The petitioner since then has been in possession of the land. It is her case that the Additional District Magistrate committed illegality in cancelling the said lease by invoking the powers under Section 7-A (3) of the Act. She has therefore approached this Court to quash Annexures-3 and 7 being illegal, arbitrary and violative of the principles of natural justice. 3. No counter has been filed from the side of the State. Heard Mr R. K. Samantaay, learned counsel for the petitioner and learned counsel for the State. 4. Mr. Samantaray advanced extensive argument in support of his contention that when the Tahasildar had granted lease under the approved lease principles of the year 1961 and this was done after due notice and enquiry, the A. D. M committed gross illegality in cancelling the lease for no valid reason. It was further contended that under the Orissa Government Land Settlement Act, 1962 there is no provision to cancel such lease and Section 7-A (3) should not have been invoked by the A. D. M. since the lease in question was not granted under the provisions of the Act. To support his contention Mr. Samantaray has taken this Court to thes approved Lease Principles of the Government of the year 1961, as well as the provisions of the Land Settlement Act. He has also referred to the various decisions rendered by this Court including the case of Basiruddin and another v. State: ILR 1961 Cutt. 595, Alekh Ku. Rath and Ors. v. State : OJC No. 762/73 disposed of on 9-7-1975, Madhaba Seth v. A. D. M., Bolangir and Ors. : 32 (1990) OJD 334 (Civil), Judhisthir Behera v. A.D. M., Bhubaneswar and Ors. : OJC No. 5439 of 1931 disposed of on 9-12-1991. Hatekishore Naik v. State of Orissa, OJC No. 1689 of 1987 disposed of on 7-5-1991, Rajkishore Das v. State of Orissa : OJC No. 2327 of 1990 disposed of on 23-12-1992 and Prahallad Martha/. Tahasildar, Bhubaneswar : OJC No. 7661 of 1394 disposed of on 17-4-1995. 5. Having heard Mr. Samantaray, we deem it proper to record a sense of appreciation for the assistance rendered by him to sustain the points raised. We would have dealt with the various points raised by Mr. Samantarsy but for the reasons that the matter has been decided without any notice to the petitioner for which reason alone this order has to be set aside. Therefore, it will be idle and sheer wastage of time to de3l with those points so persuasively advanced by Mr. Samantaray. 6. Annexure-3 is the order of the A. D. M. in the above case Initiating the proceeding in question. The order reads as follows : "An examination of the W..L. Case record No. 1160/78 of Bhubaneswar Tahasil shows that Government land has been settled by the Tahasildar under a mistake of fact owing to fraud/mis-representation/on account of material irregularity of procedure. Issue notice to person affected to show cause by 5-11-1981 as to why the settlement shall not be revised/cancelled/ removed under Section 7-A (3) of the Orissa Govt. Land Settlement Act, 1962, (Act 33 of 1962)." A bare reading of the notice does not indicate that the revisional authority has at all applied its mind before issuing the notice. The tenor of the notice SPeaks for itself. In a similar situation, because of the vagueness of the notice issued for cancellation as well as for the non-speaking order, this Court in the case of Suchitra Champati v. State of Orissa : in OJC No. 1209 of 1982 disposed of on 12-5-1989 quashed the order of the ADM passed under Section 7-A (3) of the Act. Therefore, it would be proper to quash Annexure-3. 7. Annexure-7 is the impugnad order of the ADM cancelling the lease of the petitioner. This is also found to be illegal since before passing of the order, the ADM should have taken care to see that the notice on the petitioner was duly served. Annexure-5 is the notice from the Court of the A. D. M. in the above case. The report of the Process Server dated 31-10-1981 shows that the petitioner was not staying in the quarters to which address the notice was issued for service. The report indicates that the notice was returned by the Process Server without service. So much so. the certified copy of the order dated 5-11-1981 of the revisional authority shows that he himself recorded that the notice had returned without service and he directed to serve the notice by registered post. After three to four dates the impugned order was passed on 16-2-1982 in the absence of the petitioner. The entire proceeding has been vitiated because of absence of the notice. 8. We, therefore, quash Annexures-3 and 7 and set aside the order of the revisiona! authority cancelling the lease. We make it clear that the authorities, if they so like, may proceed in the above case as per law after issuing a fresh notice to the petitioner and dispose of the case on merit in acccordance with law. The writ petition is allowed, but no costs. P. Ray, J. I have gone through the order of my learned brother D. M. Patnaik, J. I agree with the reasoning and the conclusion arrived thereof. However, \ would like to add the few lines of my own. 9. In the present case Mr. Sarnantaray raised several contentions in support of his challenge to the impugned proceedings and the orders passed therein. One of his contentions is that initiation of the cancellation proceeding is mechanical, without any basis, vague and incompetent, inasmuch as neither the order of initiation nor the notice discloses application of mind and required satisfaction about the existence of circumstances requiring invocation of the suo motu power. It has also been submitted that the final order was passed without service of any notice upon the petition and thereby violating the basic principle of natural justice. Mr. Samantaray in his extensive argument, raised several other contentions, but I do not propose to de3i with other contentionses I find that the impugned proceeding and the orders passed therein are liable to be set aside and quashed on the grounds of absence of valid foundation and non-compliance with the principles of natural justice.. 10. It is well-settled that before exercising a power or jurisdiction vested in an authority, he is to satisfy himself about the existence of circumstance necessitating exercise of said jurisdiction and to record prima face reasons for the same. Mechanical reproduction of the language of the statute in the order or notice is no substitute for recording reasons upon application of mind to the facts of the case. No fishing or roving enquiry without arriving at the required satisfaction is permissible. 11. In the present case the notice and also the order of initiation clearly indicate that the revisiona! authority merely received the language of the section without any application of mind or without disclosing any definite basis for exercise of the suo motu power. In the circumstance, the initiation of the impugned proceeding is illegal, arbitrary and incompetent. 12. It also appears from the records that the revisiona! authority proceeded to dispose of the suo motu proceeding without satisfying himself that the notice of the proceeding was duly served on the petitioner. The revisional authority has, therefore violated the principle of natural justice and the impugned order of cancellation is as such also void and nullity. In view of the aforesaid reason, it is not at all necessary to go into other contentions raised by Mr. Samantaray.

Author: D Patnaik

Smt. Shantilata Dei vs Additional District Magistrate ... on 14 May, 1996

Orissa High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6763 of 2008 KAMAL NAYAN PRASAD SINGH Versus THE BIHAR STATE ELECTRICITY BO ----------- NKS/- ( Rakesh Kumar, J.) 09 03-12-2010 As a last indulgence, the case is adjourned to second week of January, 2011. It has been submitted by learned counsel appearing on behalf of the Bihar State Electricity Board that in compliance with the earlier order, supplementary counter affidavit will be filed within a period of three weeks. Put up this case in the second week of January, 2011 retaining its position.

Kamal Nayan Prasad Singh vs The Bihar State Electricity Bo on 3 December, 2010

Patna High Court - Orders

Court No. - 22 Case :- SERVICE SINGLE No. - 7068 of 1990 Petitioner :- Atal Behari Pandey Respondent :- State Of U.P. Petitioner Counsel :- C.P.M.Tripathi,H.G.S.Parihar,R.K.Singh Respondent Counsel :- C.S.C Hon'ble Satyendra Singh Chauhan,J. Case called out in the revised list. No one is present on behalf of the petitioner to press this petition. The writ petition is accordingly dismissed for non-prosecution. Interim order, if any, stands Vacated. Order Date :- 14.7.2010 RBS/-

Atal Behari Pandey vs State Of U.P. on 14 July, 2010

Allahabad High Court

[Section 3(1)] [Section 3] [Complete Act]

Central Government Act

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C) No. 32986 of 2007(B) 1. THE MANAGING DIRECTOR, ... Petitioner Vs 1. SRI.V.K.SASEENDRAN, ... Respondent For Petitioner :SRI.K.PRABHAKARAN, SC, K.S.R.T.C. For Respondent : No Appearance The Hon'ble MR. Justice K.BALAKRISHNAN NAIR The Hon'ble MR. Justice K.T.SANKARAN Dated :25/02/2008 O R D E R K. BALAKRISHNAN NAIR & K.T. SANKARAN, JJ. ................................................................................... W.P.(C) No. 32986 OF 2007 ................................................................................... Dated this the 25th February, 2008 J U D G M E N T K. Balakrishnan Nair, J: The point raised by the writ petitioner is covered in his favour by the decision of this court in W.P.(C) No. 33183 of 2007 dated 07.01.2008. Accordingly, the Writ Petition is allowed . Ext.P2 is quashed. The respondent will be free to approach this court for release of the terminal benefits, out of turn, if so advised. The contentions of the respondent in this regard are kept open. K. BALAKRISHNAN NAIR, JUDGE. K.T. SANKARAN, JUDGE. lk 

The Managing Director vs Sri.V.K.Saseendran on 25 February, 2008

Kerala High Court

W.P. No.9026.10 Writ Petition No. 9026 of 2010 11/11/2010 Shri D. K. Dixit, learned counsel for the petitioners. Shri Ashish Shroti, learned Govt. Advocate for the respondent No.1/State. (AJIT SINGH) (SANJAY YADAV) JUDGE JUDGE SC Shri Raj Shekharan, learned counsel for the respondents No. 2 and 3. The matter though is posted for consideration of application for issuance of an ad-interim direction; however, with the consent of learned counsel for the parties, the petition is heard finally. Controversy which crops up for consideration lies in a narrow compass as to whether the Managing Director, Madhya Pradesh State Agriculture Marketing Board is within his right to lay down conditions inviting tender which run counter to those which are prescribed under the relevant rules, viz., Madhya Pradesh Krishi Upaj Mandi (State Marketing Development Fund) Rules, 2000 (hereinafter referred to as the Rules of 2000). Rules 2000 as apparent lays down the procedure for doing construction work from Board fund. Rule 9 (a) to (d) of the Rules of 2000 provides for Annual action plan, Powers relating to sanction, Administrative sanction, Selection of construction agency. Clause (e) of Rule 9 of the Rules of 2000 provides that after administrative sanction, Executive Engineer of the Board shall get the tender notice published in news- W.P. No.9026.10 papers. Sub-clause (c) of clause (e) of Rule 9 of Rules of 2000 stipulates : As per aforesaid clause one of the conditions precedent for supply of tender form is that it can be sold only to valid registered contractors of the Board. Grievance of the petitioner, a registered contractor of the Board is that, the Managing Director of the Board undermining the mandate of the Rule and without causing amendment in the Rule, by virtue of the instructions , has changed the stipulation regarding sale of tender form even to such contractors who are not registered with the Board, vide circular No. ch - 7/1/ fuekZ . k / fufonk / funs Z ' k/1731 dated 11-02-2009. It is urged that it is beyond the power of the Managing Director to tinker with the statutory stipulations. The respondents No. 2 and 3 have tried to justify the action of the Managing Director on the ground that the Board found that contractors, who are registered with the Board, often form a 'Cartel' and thereafter submit their bids in collusion, offering rates which are often detrimental to the interest of the Board. It is urged that in order to overcome the modus operandi of the registered contractors that the bids are invited even from unregistered contractors with a stipulation that in case of the acceptance of the bid, the contractor within 15 days should get registered with the Board. To substantiate the W.P. No.9026.10 submissions, learned counsel for the respondents have relied on the note sheets dated 30-01-2009 to 04-09-2009. Be that as it may, trite it is as law that, the statutory rules cannot be supplanted by the Executive Instructions, which are subservient to the Rules, for an authority please see Union of India and others v. Somasundaram Viswanath and others; (1989) 1SCC 175 and State of Haryana v. Mahender Singh and others; (2007) 13 SCC 606 paragraph 39. Similarly, when there is conferment of power to do a certain thing in certain manner then the same has to be done in that particular manner. In State of Uttar Pradesh v. Singhara Singh and others; AIR 1964 SC 358 it was observed "if a statute has conferred a power to do an act and has laid down the method in which that power has to be exercised, it necessarily prohibits the doing of the act in any other manner than that which has been prescribed. The principle behind the rule is that if this were not so, the statutory provision might as well not have been enacted". Similar view has been expressed in Dhanajaya Reddy v. State of Karnataka ; (2001) 4 SCC 9. In the case at hand the respondents have failed to demonstrate that decision by the Managing Director Board regarding varying the condition in respect of sale of tender form to an unregistered contractor had the sanction of law. In absence whereof, the stipulation vide W.P. No.9026.10 circular dated 11-02-2009 of inviting tenders form even unregistered contractors is not sustainable in the eyes of law. However, it would be open for the Board to cause amendment in the Rules; until then it is beyond the power of the Board to sell tender form to the unregistered contractors. The next submission of the petitioner is that the respondents have resorted for e-tendering. The petitioner is however at loss to substantiate its applicability being in any way in contravention to the provisions of the Rules of 2000. The Rules of 2000 nowhere prohibits e-tendering. Therefore, the contention of the petitioner that e- tendering is illegal has no force and is rejected. In the result the petition is partly allowed to the extent above. No costs.

M/S Neha Sweta Construction vs The State Of Madhya Pradesh on 11 November, 2010

Madhya Pradesh High Court

JUDGMENT Norman Macleod C.J. 1. One Sorabji Rustomji and Jamsedji Shahpurji signed an entry in the plaintiff's book to the effect that they had borrowed Rs. 5.39 which the promised to pay. Payments were made of account which appeared in the handwriting of Sorabji, with the signature of Jamsedj Shahpurji added. The plaintiff relied upon these entries as saving limitation under Section 20 of the Limitation Act. The learned Judge held that the claim a rains Jamsedji, the 1st defendant in the suit was time barred; and that, although he was present at the time when the payment were made, still as he had not himself writ-tea the fact that he made the payment the payment could be of no use against him as part payment in his own hand. It that view were correct then it would be, in my opinion,, a very startling interpretation of the law. Where two persons are liable on a debt embodied in a khata and they make payments towards satisfaction of the debt, then it would be absurd to suppose that the law required that it would be necessary that both persons should make entries in the creditor's book. Section 20 of the Limitation Act prescribes that when part of the principal of a debt is, before the expiration of the prescribed period, paid by the debtor or by his agent duly authorised in this behalf, a new period, of limitation shall be computed from the time when the payment was made; provided that, in the case of part payment of the principal of a debt, the fact of the payment appears in the handwriting of the person making the same. By Section 21(2) nothing in sections 19 and 20 renders one, of several joint contractors chargeable by reason only of a written acknowledgment signed, or of a payment made by, or by the agent of, any other or others of them. The effect of that is that if one of two joint contractors has done anything Which starts a new period of limitation then that new period starts only as against him, riot as against his joint contractor. 2. In this case, however, Jamsedji authorised the 2nd defendant to make payments towards the reduction of the joint debt, and signified that not only by being present when the payment was made but by signing underneath. In my opinion, that clearly amounted to an acknowledgement that the liability was continuing. 3. Section 19 provides for an acknowledgement in writing. Section 20 provides other means by which a debt can be kept alive. But those acts which are mentioned therein, which, if done by a debtor will starts fresh period of limitation, are acts, which in effect constitute an acknowledgment of the liability. 4. I think, therefore, that the Rule must be made absolute and there must be a decree against the 1st defendant also with costs throughout. Crump, J. 5. I agree. Upon the facts of this case I have no hesitation in holding that when defendant No. 2 paid the sum of Rs. 10 on Ashad Sud the 6th, he made that payment as the agent of defendant No. i. That defendant No. 1 authorised him in that behalf is cleat from the circumstances that he himself was present at the time and that he affixed his signature below that of Sorabij. It follows, therefore, that as regards defendant No. 1, there was a payment made by an agent duly authorised by him, and further that the fact of that payment appears in the handwriting of the person making, it, that is to say the agent of defendant No. 1. Therefore, a fresh period of limitation starts as against defendant No. 1 as from that date. I find nothing in Section 21, which has been invoked in argument, to militate against that view. I agree, therefore, with the order proposed.

Author: N M C.J.

Dev Chand Chatraji vs Jamsedji Shahpurji on 19 January, 1923

Bombay High Court

JUDGMENT N.K. Jain, Actg. C.J. 1. These Writ Appeals have been filed against the order of the learned single Judge wherein the interim order granted on 1-2-2000 in relation to the Amended Electronic Transfer Scheme dated 27-12-1999 was made absolute on 11-2-2000. 2. The brief facts that are necessary are that the petitioners-concerned (Respondents 1 to 4 herein) in W.A. Nos. 504 of 2000 & 548 of 2000 are alleged to be a registered body under the Societies Registration Act, and they have challenged the introduction of quota transfer system, namely, Electronic Transfer System (hereinafter referred to as ETS). 3. The appellant Apparel Export Promotion Council is an independent body sponsored by Government of India. Learned Central Government Senior Standing Counsel submitted that the Government is always competent to frame a policy as per the requirements and exigencies of public, considering national, international and bilateral agreements. He also submitted that the Government is regulating PPE, NGE and NIE transfers through the AEPC and its Regional Offices with the help of on line computer network, including the quantity and offer prices and the intending transferees, so as to check the malpractices and loss and the interest of the nation can be saved. He further submitted that the scheme, being a policy of the Government, cannot be the subject matter of judicial review. But the learned single Judge, without considering the fact situation, has granted absolute stay not to effect the ETS scheme. Learned Counsel further submitted that the exporters have no right and every right comes within the purview of the policy itself. So the entire approach of the learned single Judge that the export entitlement is a right of an exporter, and that on earlier occasion the scheme was withdrawn by the Government itself, are based on the wrong assumption. Therefore, the interlocutory order is liable to be set aside, and the appellant may be allowed to implement the policy which was framed in December, 1999 for the period upto September, 2000. He relied on the decision of the Supreme Court in Kanishka Trading v. Union of India wherein the withdrawal of exemption was challenged on the ground of promissory estoppel and their Lordships held that when exemption is granted in exercise of statutory powers, it is implicit that it can also be rescinded or modified at any time in exercise of the same power, and there will be no estoppel unless it is necessary to prevent fraud or manifest injustice. He also relied on a decision in P.T.R. Exports (Madras) Pvt. Ltd. and Ors. v. Union of India and Ors. 1996 (86) E.L.T. 3 (S.C.) = (1995) 5 SCC 268. While considering the matter, the Supreme Court held that the applicant has no vested right to have export import licences, and if licence is granted, it shall be in terms of the policy in force at the date of his making an application, and as per the policy, he will be entitled for incentive for the previous period. Reliance was placed on the decision of the Supreme Court in S.B. International Ltd. and Ors. v. Asstt. Director General of Foreign Trade and Ors. wherein their Lordships have repelled the contention that vested right accrues to an applicant for issuance of advance licence. Learned Counsel further relied on the decision of Shri Sitaram Sugar Company Limited and Anr. v. Union of India and Ors. wherein, while considering the scope of judicial review, it was observed that the Court cannot interfere with the economic policy which is the function of State. 4. To this, Mr. R. Gandhi, learned Senior Counsel appearing for the respondent in W.A. No. 1246 of 2000 submits that on earlier occasion in 1997, this ETS quota scheme was sought to be regularized with the help of an online network, but the scheme could not be implemented on account of stay and ultimately, the scheme was withdrawn. Again, in December, 1999 transfers were effected through this ETS scheme which will come to an end in September, 2000. He submits that the scheme is bad for so many reasons, that the purchaser has to pay service charges to pay the maximum price along with the remittance of 25% advance, comprehensive procedure which causes delay and also to display on monitor, and this offer quantity has to be finalised in three working days. Mr. P.S. Raman, learned Counsel for respondents in W.A. No. 1245 of 2000 reiterated the arguments and submitted that the Government has now filed these appeals after 8 months when the scheme is going to end in September, 2000 and, therefore, no interference is called for in the appeals filed against the interlocutory order. 5. In rejoinder to this, Mr. V.T. Gopalan, Additional Solicitor General submitted that with a view to check the malpractices and loss to the country, and in the interest of public and nation, the Government has declared a policy on the basis of relevant facts and report. The policy can be declared by the Government every year or as the case may be. So the appellant cannot argue, taking advantage, that on earlier occasion, the policy was withdrawn. He submitted that there can be no estoppel as every year the Government can frame scheme or even change the policy subject to the requirements. He further submitted that this policy is only for 8 months and this will be helpful to avoid the seller keeping it with him and try to sell at the last moment at a higher market rate, which will be difficult for the purchaser to export the quota and the same will lapse causing loss to the country. Therefore, this policy is only for matching the transferees, and if the offer is acceptable, they are free to sell, otherwise mutual transfer is available. In any case, the policy cannot be bad. That apart, the same cannot be gone into. 6. Learned Counsel also submitted that in a writ petition filed in Karnataka High Court, it was directed that the scheme should have been given effect to and see its workability. He further submitted that the case relied on by the learned single Judge is not helpful, rather no writ lies in view of the policy of the Government, and the decision of the Supreme Court in P.T.R. Exports (Madras) Pvt. Ltd. and Ors. v. Union of India and Ors. is fully applicable to the facts of the present case. 7. We have heard the learned Counsel on both sides and perused the materials on record and the case laws. As the law is well-settled, it is not necessary to deal with the individual case law. Generally, this Court does not interefere with interlocutory order when the matter is pending adjudication and not finally decided. But at the same time, this Court can interfere with the interlocutory order if the same has been passed without any exceptional circumstances. It is also settled that this court cannot interefere with the policy decision of the Government. It is also true that in appropriate case, a judicial review can be made by this Court if the order so passed is tainted with mala fide which results in grave miscarriage or flagrant violation of law. In the instant case, the ETS scheme framed by the Government is under challenge. To our mind, the observation of the learned Single Judge that the export entitlement is a right of an exporter is not acceptable. That apart, no specific allegation of mala fide is available on record. So no Judicial review is permissible in the facts of the given case. Under the circumstances, the order granting absolute stay is not sustainable. 8. The only contention is that the scheme is improper and it will not be in the interest of small exporters. This allegation has been denied by the Senior Standing Counsel. It is submitted that it is valid only for three days so that instead of buyer and seller, the whole body of exporters will come to know the price. It is more transparent due to display in online computer network with a view not to deprive the ultimate sale, and to get foreign exchange. It is also submitted that even if they are not able to find purchaser and match the price within three days, the exporters are free for mutual transfer. So no pre-justice is caused. Otherwise, they are misusing by not selling them till they get higher market rate. On consideration, we find that merely for some inconvenience or alleged complication, the policy cannot be gone into by this Court. The argument of the learned Senior Standing Counsel is plausible. The scheme can be framed considering all the relevant facts relating to productivity, modernization and in the interest of nation as a whole. On consideration, this Court will go into this since the matter involved is a question of fact and it needs investigation. Nor the Court can put its own reasons or conclusion in a matter like this. Under the circumstances, on this count, this Court cannot slay the scheme. As stated, the scheme is go-ing to end in September, 2000 and it will he appropriate for the Government to consider all the relevant materials while making a scheme for future, in the interest of all concerned, in accordance with law. Since the period is going to end in September, 2000, they arc free for mutual transfer till the scheme is over without making a precedent. But this concession will not give any right for schemes to be made in future for which the Government is competent, as discussed above. 9. With the above observation, all the writ appeals are disposed of. Consequently, C.M.P. Nos. 4407, 4749, 10984 and 10985 of 2000 are closed.

Author: N Jain

Union Of India (Uoi) vs South India Hosiery ... on 29 August, 2000

Madras High Court

[Complete Act]

Central Government Act

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

Union Of India & Others vs Sudarshan Lal Bishnoi & Another on 23 August, 2010

Allahabad High Court

JUDGMENT S.R. Nayak, J. 1. In a bodily injury case arising out of a motor vehicle accident, the injured being aggrieved by the judgment and award dated 8-11-2000 passed in MVC No. 2834 of 1996 on the file of the Motor Accident Claims Tribunal and Additional Judge, Court of Small Causes, Bangalore City (SCH-5), for short, 'the MACT, has preferred this appeal under Section 173(1) of the Motor Vehicles Act, 1988, for short 'the Act'. 2. The facts of the case in brief are as follows: In an accident involving a motor-cycle bearing Reg. No. MEM-3769 owned by the 1st respondent and insured by the 2nd respondent-Insurance Company, the appellant sustained certain injuries. He was in-patient in the Victoria Hospital between 19-8-1996 to 23-8-1996 (both days inclusive) and even after discharge from the hospital, he had to undergo medical treatment for a period of three months. In the accident the claimant sustained bimalleolar fracture of the right ankle joint and when he was in-patient in the Victoria Hospital, he underwent surgery and POP cast. The appellant on the date of the accident was aged 47 years and he was a mechanic and according to him, he was earning monthly income of Rs. 3,000/-. The claimant-appellant alleging that the accident took place solely on account of rash and negligent driving by the driver of the motor-cycle filed claim petition before the MACT under Section 166 of the Act, claiming total compensation of Rs. 4,00,000/-under various heads. Although the owner of the motor-cycle was served with notice, he remained unrepresented. However, the 2nd respondent-Insurance Company on service of notice contested the claim petition by filing a written statement, in which all material averments made in the claim petition are denied. On the other hand, it. was contended by the Insurance Company that the claimant himself was responsible for the accident. It is alleged that the appellant suddenly entered the road to cross without looking at the vehicle or traffic on the road and in the process he sustained injury. 3. In premise of the above pleading of the appellant-claimant and the Insurance Company, the MACT has framed the following issues: "ISSUES 01. Does petitioner prove that he met with RTA and suffered injuries as claimed by him and it is due to the rash and negligent driving of motor-cycle bearing No. MEM 3797? 02. If so to what compensation and from who he is entitled to? 03. What award or order?" 4. The appellant-claimant in support of his claim examined himself as P.W. 1, and also examined Dr. Ramesh Krishna from Victoria Hospital as P.W. 2, Sri S. Gopalakrishna, who is a medical records technician from Sanjay Gandhi Hospital as P.W. 3 and marked 16 documents as Exhibits P. 1 to P. 16. On behalf of the respondent none was examined nor any document was adduced. 5. The learned Presiding Officer of the MACT on appreciation of oral and documentary evidence and the issue relating to actionable negligence came to the conclusion that the accident took place mainly due to rash and negligent driving of the motor-cycle by the driver-cum-owner. At the same time, the learned Presiding Officer of the MACT also held that the claimant also contributed negligence for causing accident by making attempt to cross the road without noticing any vehicles on the road. In that view of the matter, he apportioned the negligence between the driver of the motor-cycle and the appellant in the ratio of 80:20. 6. The MACT having taken the age of the appellant and income of the appellant as on the date of the accident and kind of treatment he had taken in the hospital as in-patient and out-patient, awarded a sum of Rs. 15,000/- towards pain and suffering, Rs. 3,000/- towards medical expenses, Rs. 9,000/- towards loss of income during treatment, Rs. 3,900/- towards loss of future income and Rs. 2,500/- towards loss of amenities of life and happiness. Out of the above sums determined as compensation, the MACT having deducted 20%, ultimately awarded a sum of Rs. 26,720/- with interest at 9% per annum from the date of petition till its realisation. Hence, this appeal by the aggrieved claimant. 7. We have heard the learned Counsels for the parties and perused the impugned judgment. 8. The learned Counsel for the appellant while assailing the finding recorded by the MACT attributing contributory negligence on the part of the appellant would contend that that finding could not be sustained, firstly, because the driver of the motor-cycle was not examined nor any document was produced by any of the respondents. The learned Counsel would also contend that in the light of the oral testimony of the appellant, the correctness of which is not seriously contested by the respondent in the cross-examination, it is clearly established that the accident took place solely on account of rash and negligent driving by the driver of the motor-cycle. 9. It was contended by the learned Counsel for the appellant that in determining loss of future income the MACT has committed an error apparent on its face in not taking into account the permanent disablement of the appellant, but also in applying multiplier 13 to the monthly income of the appellant directly without first multiplying the same by 12 in order to arrive at loss of annual income. The learned Counsel would also point out that in the bodily injury cases, injured persons are also entitled to compensation towards attendant charges, transportation charges and special food etc. and therefore, the MACT ought to have awarded reasonable compensation under those heads. The learned Counsel would also maintain that even the compensation awarded under the other heads, in the facts and circumstances of the case and the evidence on record are on lower side. Learned Standing Counsel for the Insurance Company, on the other hand, would support the impugned award and maintain that the compensation awarded by the MACT is just and reasonable. 10. Let us first advert to the contention of the learned Counsel for the appellant with regard to the finding recorded by the MACT on the issue relating to actionable negligence and apportioning the blame to an extent of 20% to the appellant-claimant. As already pointed out that although the owner was served with notice, he did not put in appearance and contest the claim. Though the Insurance Company chose to file the written statement, it did not examine the owner-cum-driver of the motor-cycle or adduce any other rebuttal evidence before the MACT. As it could be seen from the written statement, it is not the case of the 2nd respondent-Insurance Company that the accident took place on account of negligence on the part of the owner-cum-driver of the motor-cycle as well as the appellant. It is true that even in the absence of such plea in the written statement, if the facts established by the evidence could possibly lead to an inference that the claimant also contributed negligence in causing the accident, the MACT may be justified in recording a finding of contributory negligence against the claimant also. The question is whether the evidence led before the MACT would warrant drawing of such inference against the claimant. 11. Having perused the evidence and materials placed before us, we are not persuaded to draw any such inference to attribute contributory negligence on the part of the appellant in causing the accident. In conclusion, we cannot sustain the finding of the MACT attributing 20% of the contributory negligence to the appellant in causing the accident. 12. It is borne out by the records and evidence led before the MACT that the appellant was in-patient in Victoria Hospital between 19-8-1996 to 23-8-1996 (both days inclusive) and when he was in-patient he had to undergo a surgery for fracture of the bone and POP cast was applied. It has come in evidence that the appellant could not attend to his work at least for a period of three months after the accident. It is also seen from the evidence that on account of the accident there was shortening of right leg of the appellant by 11/2 inches. 13. In deciding the quantum of damages to be paid to a person for the personal injury suffered by him, the Court is bound to ascertain all considerations which will make good to the sufferer of the injuries, as far as money can do, the loss which he has suffered as a natural consequence of the wrong done to him. In Basavaraj v. Shekar, 987(2) Kar. L.J. Sh. N. 337 (DB), LLR 1987 Kar. 1399 (DB) a Division Bench of this Court held that: "If the original position cannot be restored -- as indeed in personal injury or fatal accident cases it cannot obviously be --the law must endeavour to give a fair equivalent in money, so far as money can be an equivalent and so "make good" the damage". In other words, the general principle which should govern the assessment of damages in personal injury cases is that the Court should award to injured person such a sum of money as will put him in the same position as he would have been in if he had not sustained the injuries. The principle is sometimes referred to as restitutio in integrum; but it is manifest and universally realised that no award of money can possibly compensate a man and renew a shattered human frame. Lord Morris of Borthy Gest in Parry v. Cleaver, 1970 AC 1 said: "To compensate in money for pain and for physical consequences is invariably difficult but. . . no other process can be devised than that of making a monetary assessment". 14. Damages must be full and adequate. Field, J., said in Phillips v. South Western Railway Company, (1874)4 QBD 406 held: "You cannot put the plaintiff back again into his original position, but you must bring your reasonable common sense to bear, and you must always recollect that this is the only occasion on which compensation can be given. (The plaintiff) can never sue again for it. You have, therefore, now to give him compensation, once and for all. He has done no wrong; he has suffered a wrong at the hands of the defendants and you must take care to give him full fair compensation for that which he has suffered". 15. Though, undoubtedly there are difficulties and uncertainties in assessing damages for personal injury case, that fact should not preclude an assessment as best as can, in the circumstances be made. Lord Halsbury, In re Mediana, 1900 AC 113 said: "Of course, the whole region of inquiry into damages is one of extreme difficulty. You very often cannot even lay down any principle upon which you can give damages; nevertheless, it is remitted to the jury, or those who stand in place of the jury, to consider what compensation in money shall be given for what is a wrongful act. Take the most familiar and ordinary case: how is anybody to measure pain and suffering in moneys counted? Nobody can suggest that you can by any arithmetical calculation establish what is the exact amount of money which would represent such a thing as the pain and suffering which a person has undergone by reason of an accident. . . But, nevertheless, the law recognises that as a topic upon which damages may be given". 16. Having regard to the nature of the injuries and the kind and length of treatment taken by the appellant and the principles governing determination of just compensation in personal injury cases, we think that a sum of Rs. 30,000/- would be just compensation towards pain and suffering. The MACT has awarded a meager sum of Rs. 3,000/- towards medical expenses on the ground that the appellant did not produce any evidence to show actual expenditure incurred by him towards medical treatment. It is true that the appellant did not produce any evidence before the MACT to show the actual cost of treatment. Simply because the appellant did not produce evidence, the duty of the Tribunal does not cease and it is expected to determine the probable cost of medical treatment having regard to the nature of the injuries and kind and length of treatment taken by the appellant as in-patient and out-patient. As repeatedly held by the Courts, in such fact situation, an element of guess-work has to play its role. Since the appellant had to take treatment for injuries sustained by him for more than three months both as in-patient and out-patient and since he had to undergo a surgery and POP cast, even in the absence of any concrete evidence led by the appellant before the MACT, we think that it is just and reasonable to award atleast Rs. 10,000/- towards medical expenses and accordingly, we award a sum of Rs. 10,000/- towards medical expenses. We, however, do not find any justification to enhance the compensation awarded by the MACT towards loss of income during treatment. It is fairly established that the appellant could not attend to his normal work only for a period of three months and admittedly the monthly salary of the appellant was Rs. 3,000/- and therefore, a sum of Rs. 9,000/- awarded by the MACT towards loss of income during the treatment is justified and legal. 17. This takes us to the question whether a sum of Rs. 3,900/-awarded by the MACT towards loss of future income could be regarded as just compensation. In determining the loss of fixture income the MACT has committed an error apparent on its face. The MACT while determining total loss of earning capacity has directly applied multiplier 13 to the monthly income without multiplying the monthly income by 12 in order to arrive at yearly loss of income. We are also of the considered opinion that the MACT in the factual situation of this case, was not justified in taking the whole body permanent disability at 10% though P.W. 2-Doctor in his evidence assessed the permanent disability between 10% to 15% for the whole body. It needs to be noticed that the appellant is a manual worker and therefore, the physical impairment particularly 11/2 inches shortening of the right leg of the appellant should have gone into the decision making. Therefore, we think that the ends of justice will be met by taking the whole body permanent disability at 20% instead of 10%. Multiplier 13 applied by the MACT is proper. In that view of the matter loss of future income would be Rs. 93,600/- (3,000 x 12 x 13 = 4,68,000/- and 20% of which comes to Rs. 93,600/-). 18. The MACT in awarding a petty sum of Rs. 2,500/- towards loss of amenities of life and happiness has exhibited conservatism to the core. The compensation to be awarded by the statutory Tribunal, it is trite, should reflect justness and reasonableness in terms of time and space concerned and that feature is totally lacking in the impugned award. Therefore, we think that a sum of Rs. 15,000/- towards loss of amenities of life and happiness would be a just compensation. 19. It is well-settled that in bodily injury pases that the injured person is also entitled for compensation towards attendant charges, transportation charges and special food etc. No compensation is awarded by the MACT under those heads. But, we do not have any concrete evidence to show what exactly the appellant-claimant spent under those heads. In that view of the matter and taking into account the probable expenditure incurred by the appellant during three months of the treatment, we award a sum of Rs. 10,000/- towards attendant charges, transportation charges and special food etc. 20. In the result and for the foregoing reasons, we allow the appeal in part with cost and in substitution of the amount awarded, we award total compensation of Rs. 1,67,600/- with 9% interest from the date of claim petition till its realisation. The Advocate's fee is fixed at Rs. 1,500/-.

Author: S Nayak

A. Anandan vs Abdul Azeez And Anr. on 17 October, 2003

Karnataka High Court

Court No. - 10 Case :- CONTEMPT APPLICATION (CIVIL) No. - 3124 of 2010 Petitioner :- Balvir Singh Respondent :- K. Dhan Laxmi, D.M. Farrukhabad & Others Petitioner Counsel :- O.P. Katiyar Hon'ble Vikram Nath,J. Heard the learned counsel for the applicant. It is alleged that the order dated 17.5.2010 passed by this Court has been violated. From a perusal of the petition, a prima facie case is made out. Issue notices to opposite parties fixing 23.8.2010. 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 notices. Order Date :- 9.7.2010 SFH

Balvir Singh vs K. Dhan Laxmi, D.M. Farrukhabad & ... on 9 July, 2010

Allahabad High Court

JUDGMENT T.D. Sugla, J. 1. This is a reference at the in stance of the assessee. It relates to the assessee's assessment for the assessment year 1964-65, 1965-66, 1966-67 and 1967-68. The Income-tax Appellate Tribunal has referred to this court the following two questions of law for opinion under section 256(1) of the Income-tax Act, 1961 : "(1) For the assessment years 1964-65, 1965-66 and 1966-67 : Whether, on the facts and in the circumstances of the case, and more particularly in view of the fact that, before the assessments for the assessment year 1964-65, 1965-66 and 1966-67 were finalised, the Government had fixed a lower percentage of royalty, the Tribunal had erred in holding that the amount of royalty higher the what was actually allowed to be remitted was to be deducted in computing the total income ?" (2) For the assessment year 1967-68 : Whether, on the facts and in the circumstances of the case, the tribunal erred in law in treating the sum of Rs. 36,571 being the difference between the original liability and the revised liability of royalty brought by way of credit in the books, as the income of the assessee in the assessment year 1967-68 under section 41(1) of the Income-tax Act, 1961 ?" 2. The assessee is a private limited company carrying on business in retreading of old tyres. Its previous year is the calendar year. The company uses a special type of rubber (camel black) for pasting on the surface of old tyres. On November 3, 1960, the assessee-company entered into an agreement the assessee had agreed to pay to the foreign company in sterling for license fee at the rate of 4 1/2 pence per pound of tread rubber, etc., used by the assessee. At the relevant time, the assessee was carrying on business in Goa which was then a Portuguese colony. Subsequently, Goa has become part of India. 3. For the assessment year 1964-65, 1965-66 and 1966-67, the assessee-company has been debiting license fees payable to the foreign company at the agreed rate of 4 1/2 pence per pound of tread rubber used. After Goa became a part of our country, it became necessary for the assessee-company to obtain the Government of India's by its letter dated May 18, 1965, sanctioned payment of license fee/royalty to the foreign company at the rate of 1 1/2 pence per pound only as against 4 1/2 pence per pound agreed to by the parties. It is in these circumstances the, while the assessee had debited its profit and loss account for the calendar years 1963, 1964 and 1965 relevant for the assessment year 1964-65, 1965-66 and 1966-67, with license fee calculated at the rate of 4 1/2 pence per pound of rubber used, for the calendar year 1966, relevant for the assessment year 1967-68 it took the view that the amount of license fee/royalty was actually payable by it at the rate of 1 1/2 pence per pound only and accordingly, wrote off the amount debited as a license fee to the profit and loss account in the earlier three years in excess of 1 1/2 pence per pound. 4. However, at the time of assessment, the assessee claimed that its actual liability in respect of license fee/royalty payable to the foreign company was only 1 1/2 pence per pound of rubber used and the deduction should be allowed to it to that extent only. The Income-tax Officer on the other hand held that in those years, the agreement was in operation, the Government of India letter sanctioning payment of 1 1/2 pence per pound only as against 4 1/2 pence per pound, as per the agreement, came subsequently; therefore, so far as the three year under reference were concerned the assessee was entitled to the deduction on the basis of license fee/royalty at the rate of 4 1/2 pence per pound of rubber used. The Income-tax Officer also held that as a natural corollary, for the assessment yea 1967-68, for the amount written off by the assessee as being not payable in respect of which deduction was being allowed in those years, the assessee was liable to be assessed under section 41(1) of the Income-tax Act, 1961. 5. The assessee's appeal before the Appellate Assistant Commissioner was successful. However, the Tribunal allowed the departmental appeal and restored the order of the Income-tax Officer. 6. It is vehemently argued before us by Shri Dalvi, learned counsel for the assessee, that the Government of India sanction to the payment of license fee/royalty to the foreign company was necessary before any remittance could be made to the foreign company in respect of license fee; that the Government of India, by its letter dated May 18, 1965 permitted the assessee to pay license fee at the rate of 1 1/2 pence per pound of trade rubber used and not at 4 1/2 pence per pound of tread rubber used as per the agreement. In particular, Shri Dalvi invited our attention to the fact that when negotiations at the instance of the foreign company through the Trade Commissioner failed, the assessee and the foreign company eventually entered into another agreement in the year 1969, in terms of which license fee/royalty was agreed to be paid at the rate of 1 1/2 pence per pound of rubber used with retrospective effect from October 1, 1961. Accordingly it was his submission that the assessee was entitled to the deduction in respect of license fee/royalty at that rate only right from the year 1961. If the license fee/royalty was allowed at the rate of 1 1/2 pence per pound of rubber used, there will be no question of remission in the calendar year 1966 relevant for the assessment year 1967-68. 7. Dr. Balasubramanian, of the other hand, strongly relied on the order of the Income-tax Appellate Tribunal. In particular, he contended that the government of India having sanctioned payment of only 1 1/2 pence per pound of rubber used in July, 1965, there is no justification whatsoever in the assessee's claim that even for the calendar years 1963 and 1964, deduction should be allowed on that basis and not on the agreed basis. It may not be out of place to mention here that is Shri Dalvi had faintly argued that, assuming that the assessee was allowed deduction at the rate of 4 1/2 pence per pound of rubber used in the earlier year, there would still be no case for remission in the calendar year 1966 relevant for the assessment year 1967-68, as neither the Government of India's sanction letter was issued in that year, nor was the subsequent agreement entered into in that year. In this context, he pointed out that the Government of India's letter is dated July 29, 1965, whereas the subsequent agreement was entered into in the year 1969. Both these events having not taken place in the year 1966, Shri Dalvi argued that the question of remission in that year under section 41(1) of the Act would not arise. 8. We have considered the rival contentions carefully. In our opinion, Dr. Balasubramanian is right to the extent that in view of the Government of India's letter sanctioning license fee at 1 1/2 pence per pound of rubber use as against 4 1/2 pence per pound of rubber used as per the agreement in the year 1965 only, there is no justification whatsoever in the assessee's claim that, in the calendar year 1963 and 1964, which are relevant for the assessment year 1964-65 and 1965-66, deduction should be allowed on the basis of rates sanctioned by the Government and not on the basis of rates agreed upon. So far as the calendar year 1965 is concerned, however, we are in agreement with shri Dalvi the Government of India's letter having been received during that year, the assessee could not possibly claim deduction at a higher rate the rate sanctioned by the Government of India. Accordingly we answer the first question in so far as it relates to the assessment years 1964-65 and 1965-66 in the negative to the assessment year 1966-67 is concerned, we answer the question in the affirmative and in favour of the assessee. 9. As regards the question whether there was remission of the liability in respect of license fee in the calendar year 1966, relevant for the assessment year 1967-68, we find that in their report to the shareholders, the directors of the assessee-company for the calendar year 1966-67 observed as under : II. Explanations to the auditor's remarks : 1. The original agreement with Messrs. Tyresoles (Overseas) Ltd. Wembley, provided payment of royalty at 4 1/2 d. per pound of tread rubber consumed and accordingly the company applied to the Government for approval of this agreement and the remittance of royalty payable. The Government having considered the issue, informed the company by their letter dated 18-5-1965 that the royalty of only 1 1/2 d. per pound of rubber used could be approved. And on this basis the Government asked the company to enter into an agreement with the principals, Messrs. Tyresoles (Overseas) Ltd. Wembley. Messrs. Tyresoles (Overseas) Ltd. while appreciating our position informed the company that they will take up the matter with the Government of India through the Trade Commissioner of U. K. in New Delhi. The company readily agreed to the suggestions as it desired that the contractual terms with their principals should be maintained and, therefore, the company assured full co-operation in their efforts for obtaining a revision in the rate of royalty payable. It is now found that the Government of India is not inclined to consider a any revision of the rate of royalty already sanctioned They had not so far given this is writing to the Trade commissioner of the U. K. in New Delhi but the officer concerned had expressed this view One of the reasons put forward by the Government in turning down the request was that the concessionaires for the Tyresoles (Overseas) Ltd. London in the rest India have been authorised to pay the royalty only at the rate of 1 1/2 pence and they cannot consider a separate rate of royalty to Goa which is now a part of India. It is now certain that Government of India shall not sanction royalty at any enhanced rate than 1 1/2 pence per pound. It was therefore, considered that the provision made so far at the rate of 4 1/2 pence per pound is unnecessary. The excess provision, therefore, has been written back after making provision for taxation on the excess of provision of royalty written back. The directors are also taking steps to execute a formal contractor with Messrs. Tyresoles (Overseas) Ltd., for varying the rate of royalty from 4 1/2 pence per pound to 1 1/2 pence per pound." 10. The paragraph, read as a whole, clearly, to our mind, indicates that both parties, i.e., the assessee and the foreign company, had reconciled to the payment of license fee t the rate of 1 1/2 pence per pound of rubber used during the calendar year 1966. It is only the execution of the formal contract that was delayed or happened in the subsequent year. Under the circumstances, we do not agree with Shri Dalvi that it is only a unilateral act on the part of the assessee-company to writ off its liability. It is a writing-off done by the assessee with the consent of the foreign company. In that view of the matter, we answer the second question pertaining to the assessment year 1967-68 as under : The liability in respect of royalty written off to the extent it pertains to years other than the assessment year 1966-67 is to be treated as the income of the assessee under section 41(1) of the Income-tax Act. 11. There will be no order as to costs.

Author: T Sugla

Tyresoles Goa Pvt. Ltd. vs Commissioner Of Income-Tax on 9 April, 1991

Bombay High Court

JUDGMENT Ameer Ali, J. 1. The fact that I have not reserved judgment does not imply any failure to appreciate the importance of the points involved in this case or the manner in which the case has been conducted by the leading counsel on both sides and prepared both as to law and facts by the juniors. Delay is undesirable. I shall, therefore, follow my usual method. As usual, I have no objection to the parties having copies of the shorthand note of this judgment. Should I make any alteration of importance I shall do so in the presence of counsel. With materials as voluminous as those in this case it is desirable to adopt some plan. I propose, therefore, first, to state as shortly as possible the manner in which this dispute has arisen. I shall then deal with the nature of the suit, the pleadings, the amendments sought, the issues and what I consider to be the real problem involved. I shall then attempt to deal with the law, and after that discuss the evidence, and lastly, my findings. 2. First therefore as to the dispute and the parties to the dispute. The Midnapur Zamindary Co., the plaintiff, is a putnidar of a wide area under a grant from the Raja of Narajole. The grant has an interesting origin which is immaterial to this case. The section of the Midnapur Zamindari Co., with which we are concerned, i. e., that under the administration of Mr. Woodgates alone comprises 372 square miles. The defendant, the Bengal Nagpur Railway, is not as yet a state railway. The undertaking is worked under an agreement with the Secretary of State, which is in evidence, but which it is not necessary to discuss. Under this agreement the railway will ultimately vest in the Secretary of State. In 1896, the line from Calcutta to Madras still awaited for its completion, the length between Cuttack and Calcutta, and for this purpose the railway like other railways in India availed itself of the procedure for compulsory acquisition contained in the Acquisition Act of 1870 and the Land Acquisition (Mines) Act, 18 of 1885. The original Land Acquisition Act of 1870 is now replaced by the Land Acquisition Act of 1894. Under these statutes four acquisitions were made which are of importance in this case, although only one of them is directly in question. It is convenient to record them at the outset. (1) A declaration of 7th January 1896 in connexion with the Main Line, Cuttack-Midnapur-Calcutta, a length of 309 miles. On this stretch is one of the sites in suit, that at Sardiah, the plaintiff company claiming in respect of materials excavated at this spot. This claim however appears to be based upon a misconception and may at once be excluded from the suit. The declaration was not subject to any exception. Moreover upon the evidence, it is clear that the materials taken by the railway at this point were taken from the cutting spoil. In these circumstances this acquisition is only relevant or useful for purposes of comparison. (2) The acquisition with which we are concerned is that of 2nd January 1901. This was for a branch line, the Midnapur Jharia extension, a length of 117 miles and an area of several thousand acres. The notification contained the exception, that is to say, the exception of "mines of coal, iron stone, slate and other minerals" in terms of Section 3, Land Acquisition (Mines) Act. I shall refer to such acquisitions as "acquisitions with exception." Work began on this line in that year and was finished in or about 1904. The land acquisition proceedings for valuation took place in September and October 1901. Two sites are referred to, Kulapacharia and Godapiasal. They are adjoining and may be regarded as one, the Godapiasal quarries. During the period of construction the railway contractors took materials, that is laterite stone and laterite kankar or morum from the Godapiasal quarry among others, and so far as they took them from the acquired lands they were paid for under a separate agreement of 19th June 1901. These payments continued until 1904 or thereabouts and then ceased. (3) The acquisition of 6th December 1920, acreage 78.72 acres, at Hariharpur, another district. The acquisition was subject to the exception. The purpose was stated as a "quarry for morum and laterite stone." (4) Acquisition of 23rd November 1935, 17218 acres at Godapiasal, thus extending, the acquired area at the site in suit. The purpose "for excavation of morum and laterite stone for the use of the railway company." The declaration was without exception. 3. On the 10th October 1934 or thereabouts Mr. Woodgates, the manager of this section of the Midnapur Zamindari Co., addressed to the railway a demand for compensation for minerals removed from the Godapiasal quarries, and there followed considerable correspondence, naturally relied upon by the plaintiff company, in which the morum and laterite stone were referred to as "minerals" and in which the railway admitted liability to pay for such laterite stone and morum as reserved minerals. On the 17th April 1936 the railway offered to pay at a certain rate, and this offer is relied upon by the plaintiff company as an agreement. The offer however was not accepted in terms, and on 1st March 1937 or thereabouts the railway, having received legal opinion withdrew the offer and claimed that the laterite and morum were included in the acquisition and not in the exception. On 31st March 1938 this suit was filed by the plaintiff company for compensation for the laterite rock and morum removed. It was transferred for trial to this Court. 4. I have referred to the nature of the suit. It differs from the proceedings normally ensuing in England under circumstances such as I have set out. Usually proceedings follow upon a notice by the proprietor under the Act corresponding to the Land Acquisition Mines Act of 1884, on the refusal of the railway to give the counter-notice, and the extraction or threat to extract minerals by the proprietor. I have not hit upon a case where the railway has commenced working upon the surface and the proprietor has complained. But no point has been made of this, and I proceed upon the assumption that the proprietor, if the materials remain vested in him by reason of the exception, can protect his right to them by a suit of this nature. With regard to the pleadings I do not propose to examine them in any detail. In connexion with specific points it may be necessary to refer to certain para-graphs. Amendments were sought during the hearing, first by the plaintiffs. The plain-tiffs sought to amend by including (a) additional relief by way of injunction; (b) a plea of estoppel; and (e) a plea to the effect that, even if included in the grant, the railway has used the materials for purposes outside the acquisition and should be restrained from so doing. 5. I will not quarrel with the additional relief. If the plaintiffs succeed there is no reason why they should not have the in-junction. With regard to estoppel I stated and now confirm that the plaintiffs might rely upon any document included in the agreed briefs, for the purpose of an estoppel; the estoppel alleged, i. e., to preclude the defendant from denying that the materials in suit were included in the exception. I do not say that the estoppel is either fully or properly pleaded or that adequate particulars were given. For that reason I confined it to the documents. The third amendment I did not allow. It is not pleaded. The plaintiffs' whole case is based upon the materials being excluded from the acquisition. The type of complaint sought to be introduced by the proposed amendment depends upon wholly different consideration. In point of fact no use by the railway of the laterite or morum is interfering with the proprietors' enjoyment of the land retained by him. The defendants sought to amend, to introduce a defence based upon the effect of the agreement of 9th June 1901, a point which at the time seemed to me on one reading of the agreement to have substance. This amendment, again, I have not allowed. In the circumstances it becomes unnecessary to consider what, if any, answers to that point might be raised. Proposed issues were handed to me by counsel on both sides. They were settled by me as follows: (1) Were "the materials" (laterite boulders, ballast and morum) removed by the defendant company from the areas in suit included or excluded from the acquisition of 1901? (2) If excluded, what, if any, portion of the said materials was the defendant company entitled to take as being "necessary to dig or carry away or use in the construction of the work for the purpose of which the land was being acquired?" (Note. - This has been pleaded generally by the defendant company. No particulars given. Counsel for the defendant company states that the defendant claims under the reservation to be able to use the materials on any portion of its works.). (3) What, if any, portion of the said materials was either dug or carried away or used in the construction? (i) Is the plaintiff entitled to damages and for what portion and at what rate or rates? (5) Limitation. (6) The additional issue raised by the plaintiff-Was there an agreement to pay compensation as alleged in the plaint? If so, what relief? (7) Is the defendant estopped from contending that the materials were included in the acquisition? (8) Is the plaintiff entitled to damages even if the materials are included in the acquisition on the ground that the materials or some portion were not utilized for the purposes for which land was acquired? If so, what damages? (Note. - The estoppel (issue 7) and the claim to damages on the alternative basis (issue 8) are not pleaded.) In the circumstances already mentioned issue 8 is eliminated. The alteration in the form of issue 1 was deliberate and intended to signify that the real question involved in this suit is not an academic inquiry into the meaning of the word "minerals" but whether or not in this particular transaction the materials were or were not included in the exception. 6. The vital questions seemed and still seem to me, capable of being stated very shortly : (1) Are the materials within the exception? (2) If so, are they within the exception to the exception? (3) If not, what damages? The second question relates to the clause "necessary...in the construction of the work. "In the course of argument I took the liberty of stating the problem in the shape of a formula. There is a sale of land. Land = A to z. Exception C I S (m). (M) is indeterminate; the question is whether laterite is included in (M). On the question, the law has laid down certain tests of construction. It has said that the answer will depend upon the answers to certain questions of fact. What are these questions of fact has to be ascertained from the English cases. In this case therefore we are called upon to discuss the law in order to discover what questions of fact have to be decided. 7. According to the defendant company the tests were finally laid down by the House of Lords in 1910. According to the plaintiff company the tests of 1910, such as they are, were subsequently modified. At first sight therefore I do not appear to be called upon to consider the history of the 1910 tests. It would appear sufficient to deal with the "common rock" of 1910, so to speak, at site. It exists. How it got there it may be said, is not at first sight our concern, any more than we are concerned with how the laterite in suit got there. But the common rock test of 1910 has a history which in view especially of Dr. Gupta's argument, cannot wholly be avoided. It will, moreover, be of some convenience to practitioners to have set out in order of date the cases which have been referred to and discussed in the argument. 8. Hext v. Gill (1871) 7 Ch 699. The substance in question was china clay. The transaction was one of private grant. The actual decision was that the proprietor should be restrained from so working as to destroy the surface. It contains two definitions or tests the apparent conflict between which has been the subject of so much discussion : that of Mellish L.J.---"Minerals include every substance which can be got from underneath the surface of the earth for the purpose of profit" (subject to contrary intention) and that of James L. J. "What the words mean in the vernacular of the Mining World and Commercial World and land owners at the relevant time." Lord Provost etc. of Glasgow v. Farie (1888) 13 AC 657: The substance was brick clay: transaction : a grant but in terms of a certain Act analogous to the acquisition of Mines Act, that is to say, with the exception. Except for the surface soil capable of cultivation, the subsoil was clay. Lord Halsbury preferred the definition of James L. J., and harped back to the old decision in Earl of Breadalbane v. Menzies (1818) 1 Shaw App 225. The distinction between deed and statute was disregarded (p. 672). Lord Watson inclined to a construction on the principle of ejusdem generis. Lord Macnaghten laid stress on the word "mines" and evinced objection for surface working (p. 689). Lord Hersehell who dissented, ignored consideration based upon differences of depth. The important point is, that running the judgments of Lord Halsbury, Watson and Lord Macnaghten is a particular vein based upon reason arising from the fact that in this case the clay formed part of the ordinary subsoil. (Lord Halsbury at p. 671, Lord Watson at p. 679, Lord Macnaghten at pp. 697 and 698). Incidentally it is pointed out, that this land or upper soil which is not reserved is paid for by the acquiring authority and made the subject of compensation at the time (pp. 679 and 697). At the latter page is the argument of Lord Macnaghten based upon reason which reappears with different phraseology in N.B. Ry. v. Budhill Coal & Sandstone Co. (1910) 1910 AC 116. Jersey v. Guardians of Poor of Neath Poor Law Union (1889) 22 QBD 555; substance-brick clay; transaction: conveyance in particular terms. Lord Mellish's definition in Hext v. Gill (1871) 7 Ch 699 followed. Decision based upon the distinction between compulsory sale and voluntary conveyance. 9. Midland Railway Co. v. Robinson (1890) 15 AC 19: substance-Iron stone and Lime stone; transaction in terms of Section 77, Railways Clauses Act of 1845, that is "with exception." The only question was whether the word 'mines' excluded from the exception materials got by surface working. In this case, as in certain Indian cases hereafter to be referred to, the railway admitted that the materials were minerals within the meaning of the Act (p. 26); only decision therefore that minerals got by surface working remain minerals. Lord Macnaghten dissented on the basis of his ingrained aversion to surface working (p. 24). 10. G.W. Ry. v. Blades (1901) 2 Ch 624: Brick clay. Surface soil, six inches to a foot. I use the expression "surface soil" throughout as meaning the soil capable of cultivation or gardener's soil and nothing below it. Below this five feet of weathered clay and below this virgin clay. Buckley J., considered himself bound by the definition of Mellish L. J. notwithstanding a preference for the definition of James L. J. He held however on the facts of the case that "the clay was the soil" and following the particular bent of thought running through the judgments in Farie's case (1888) 13 AC 657, held that under Section 77 of the Act of 1845 the railway purchased not the surface soil only, but the land, and that the land included the ordinary soil of the district. 11. Todd v. North Eestern Railway (1903) 1 KB 603: Substance, clay to the depth of 100 feet. Lord Halsbury expressed himself strongly in the course of the argument at pp. 606 and 607, and very shortly in his judgment Lord Alverston approved of the decision in G.W. Ry. v. Blades (1901) 2 Ch 624, considered that the learned Judge had correctly appreciated the principle in Farie's case (1888) 13 AC 657, and, as I read it, this is a general decision excluding the ordinary surface of the earth from the category of minerals in the exception. 12. G.W. Ry. v. Carpalla United China Clay Co. Ltd. (1909) 1 Ch 218 & G.W. Ry. v. Carpalla United China Clay Co. Ltd. (1910) A C 83: Substance, china clay. Eve J. adopted the words of Buckley J. in G.W. Ry. v. Blades (1901) 2 Ch 624 "has a value of its own apart from the soil in which it is found"-p. 226. In the Court of appeal the Master of the Rolls supported the judgment on the basis that Farie's case (1888) 13 AC 657 had finally decided that "where a bed of clay underlies the surface and is the ordinary soil of the whole district such clay is not within the statutory reservation." The judgment of Lord Metcher-Moulton proceeds upon other lines, although agreeing with the decision upon the facts. In the House of Lords G.W. Ry. v. Carpalla United China Clay Co. Ltd. (1910) A C 83 the speech is that of Lord Macnaghten, and the material passage is: The learned Judge viewed the evidence .... and came to the conclusion that china clay is not part of the ordinary composition of the soil of the district. Its presence was rare and exceptional. 13. N.B. Ry. v. Budhill Coal & Sandstone Co. (1910) 1910 AC 116: Substance, sandstone 3 feet of surface soil, 8 feet of clay and sandstone beds below that. Lord Loreburn referred to the conflict of authorities and stated that the matter was at large before the House of Lords. Founding upon considerations of reason and purpose which had already emerged in Farie's case (1888) 13 AC 657, Lord Loreburn formulated a double test (p. 127): (1) that 'other minerals' denotes exceptional substances, not the ordinary rock of the district, and (2) that in deciding whether in any particular case exceptional substances are minerals the vernacular test has to be applied. Lord Gorell did not base his speech upon the common rock test, but came to the same conclusions on the ground that there was no evidence that in the vernacular 'mines and minerals' were understood to include ordinary sandstone and that the onus to prove this was upon those supporting the exception. Lord Shaw also was more concerned with the vernacular test, the remote issue of the old Scotch cases. 14. Caledonian Railway Co. v. Glenboig Union Fireclay Co. (1911) 1911 AC 290. Substance, seam of fire clay in ordinary clay. The ruling of the appellate Court in Scotland was that fire clay did not form part of the sub-soil. Lord Lorebura shortly restated the principle of the decisions in N.B. Ry. v. Budhill Coal & Sandstone Co. (1910) 1910 AC 116, G.W. Ry. v. Carpalla United China Clay Co. Ltd. (1909) 1 Ch 218 and G.W. Ry. v. Carpalla United China Clay Co.(No. 1) (1910) 1910 AC 83, He referred to it as a rule of construction based upon intention, and used the phrase relied upon in argument by the plaintiffs-"exceptional in use, character or value." The last four lines on p. 299 are important: The seam now being worked...is certainly of an exceptional character as to its properties and value upon the evidence before us; and it is not established in the evidence before us that other material is present in such large proportions as to destroy this exceptional character. 15. Symington v. Caledonian Railway Co. (1912) 1912 AC 87 at page 92. The Court on appeal in Scotland had dismissed a suit relating to sandstone or free stone upon demurrer. The House of Lords (Lord Loreburn) pointed out that this was a question of fact that free stone could be a mineral within the meaning of the exception. The case was relied upon by Dr. Gupta, and I shall refer to it when dealing with his argument. But the pleadings and the speech of Lord Shaw do not indicate to me any limitation of the common rock test laid down by Lord Loreburn. According to Lord Shaw it is for the party relying upon the exception to establish that the material in suit is an exception to the general rock of the district. 16. Waring v. Booth Crushed Gravel Co. (1932)1 Ch 276. Substance, sand and gravel. Decision of the Court on appeal. A private conveyance for building purposes. The decision is undoubtedly based upon the common rock test, i. e., that the exception does not mean "the ordinary soil of the district which, if reserved, would practically swallow up the grant." In this case the top soil averaged one foot and the subsoil,' sand and gravel, extended over a great area. In this case, and this is relied upon by counsel for the plaintiff, the evidence was to the effect that what Romer L. J. called the "relevant vernacular" did not consider sand and gravel to be a mineral. The Court held, however, that "this evidence was really unnecessary" as it would only become necessary if sand and gravel passed the common rock barrier. 17. Attorney General for the Isle of Man v. Moore (1938) 159 LT 425: ruling of the Privy Council. This was relied upon by Mr. Ghaudhuri and Dr. Gupta. The question was whether under section 16 of the Act of 1703, which regulated the rights inter se of holders and the Crown shale was or was not excluded in the exception. The exception was in peculiar terms, which according to a previous ruling of the Judicial Committee limited the word 'minerals' to minerals obtainable by underground mining. The question, therefore, was whether shale could be included in stone. To this question the Board applied the vernacular test, and the vernacular test went against the Crown. The common rock test was not resorted to. Those are the English cases which have been discussed before me. I should perhaps mention one other English case in order to show the extent to which at one stage the meaning of "minerals" in the exception, was stretched and because, its language is appropriate to the view taken in the Indian cases. In Midland Railway v. Checkley (1867) LR 4 Eq 19 at p. 25, Lord Romilly in construing the exception contained in a particular Act, not distinguishable from the others, said: Upon the first point I think there is no question. Stone is in my opinion clearly a mineral and in fact everything except the mere surface, which is used for agricultural purposes, anything beyond that which is useful for any purpose whatever, comes within the word 'mineral' when there is a reservation of the mines and the minerals from a grant of land; every species of stone.... 18. The English cases show a continuous attempt to find some limit to the exception, something to prevent the grant being eaten up by the exception. As will have been seen, various tests were from time to time adopted. While not mutually exclusive they may, I think, be logically grouped as follows : (1) There is the parlour game test, animal, vegetable and mineral. It appealed to Lord Romilly and has appealed to the Courts in India, (2) There is the value test of Lord Mellish "got for profit" to be com-pared with the phrase of Lord Fletcher Moulton in G.W. Ry. v. Carpalla United China Clay Co. Ltd. (1909) 1 Ch 218 "value in use." (3) The vernacular test. The speech of certain classes of people midway between, shall we say, children and scientists. (4) The negative test originating in Farie's case (1888) 13 AC 657 continuing through G.W. Ry. v. Blades (1901) 2 Ch 624 and Todd v. North Eestern Railway (1903) 1 KB 603 and finally crystallized in the Budhill case (1910) 1910 AC 116. We are left, therefore, with a double test: (1) The negative "common rock" test; (2) the positive "relevant vernacular" test. The two tests are not alternative, but cumulative. I shall discuss this point further in dealing with the courageous assault upon the common rock, made both by Mr. Chaudhuri and Dr. Gupta, an attack both direct and indirect, which deserves special treatment, and which therefore, I shall take the liberty of postponing until after I have considered the evidence. 19. I shall deal with the facts first, and having discussed the law, the questions of fact which I have to decide become more apparent. They are in my opinion the following: (1) Is Godapiasal laterite (in which I in-elude stone and morum) "the common rock" of the district? (2) Is it a mineral according to the "vernacular"? (3) If both, is there anything in this case to exclude the common rock test? I shall discuss the evidence relating to questions (1) and (2) together, under the general heading of 'laterite'. I shall then go on to consider whether in this case upon any ground of fact or law the common rock test can be excluded. This portion of the judgment may, therefore, be regarded as lateritic. I shall deal with the evidence under the following headings: (1) What is Godapiasal laterite? (2) Extent and relation to other rocks. (3) Use and value. (4) "Vernacular". (1) What is Godapiasal laterite? The Court is indebted to the professional gentlemen who gave evidence. Although, as is natural, there were marked differences of opinion or outlook, there can be no question but that such opinions were genuine or of the ability and experience of the holders. Godapiasal laterite is one type of one of the most widely distributed rocks in India. Godapiasal laterite is a recent deposit of loose material, the result of alteration of older rocks. Whether or not actually brought to its present site by water, it is classed as an alluvial deposit. In the area in suit a glance at the small scale geological map will show its relation to the big mass of older rocks to the southwest, of which it forms the border. It is a shallow deposit of not more than 20 feet deep. It has special mineral characteristics, which combined with tropical conditions, in particular moisture, tend to make the loose substance cohere or coagulate first into a kind of small gravel called kankar or morum, and then, by further coagulation, into more solid rock. This takes place without the assistance of pressure from rocks above. In this, therefore, it contrasts with other sedimentary rocks which harden under pressure and which except in rare circumstances by weathering acquire a softer surface. With laterite the horizons are reversed except for the actual surface. The top layer tends to become the hardest, and under this comes the gravel layer. For the horizons in Godapiasal late-rite, see Dr. Coulson's evidence: Q. 11. It follows that the top soil in a laterite district, theoretically at any rate, consists of the original detrital deposit which has not yet become solidified. This is the view of Dr. Percival (Q. 29). Actually no doubt some of the top soil is due to a second weathering. But, however it is formed, opinion is unanimous to the effect that, the top soil, whatever be the admixture of humus, is thin, occasional and sterile. The surface of the ground, therefore, in this laterite district is either a thin, red lateritic soil or actual lateritic rock or morum. The lateritie habit of coagulating appears to continue after removal, and it is this which makes morum bind when used for flooring or surfacing roads. I infer that its binding power exceeds that of other kankars, but to what extent is a question which I meant but omitted to ask. It is common ground that it does possess this property. 20. As regards laterite stone, my inference from the evidence is as follows: It is not a good stone. It has the advantage that it is soft at site and can be easily quarried and that it hardens upon exposure. One witness, to whose evidence I shall again refer, considers it better than brick work. I should have thought, it depended upon the quality of the stone on the one hand and the brickwork on the other. It does not appear to be able to compete with other stones away from the actual district where it is found for instance, Pakur stone from the Rajmahal Hills. Secondly, with regard' to the extent of Godapiasal laterite and its relation to other rocks. The first and perhaps the most important item in the evidence are the maps. Unfortunately the large, scale maps intended to show the area of laterite were not finally proved. There is a small scale map of 32 miles to the inch, in which the laterite is included in other "older alluviums". Apparently, however, the part shown yellow is substantially laterite, if morum be included. This appears, apart from the oral evidence, from the map attached to the report on the District of Midnapur in the Memoir of the Geological Survey, vol. 1, scale 8 miles to the inch. This shows with some clearness the rocks traversed in proceeding from Midnapur northwards. The line of the road shown on this map is for practical purposes the same as that followed by the railway. On this journey one would proceed across laterite at Midnapur itself, say two miles, across a valley of alluvium, another mile or so of laterite, another valley of alluvium, then a bigger stretch of laterite, another valley and a yet bigger stretch of laterite, and so on. 21. As regards the oral evidence, there is really little difference of opinion except that Dr. Coulson states that between Midnapur and Godapiasal he saw just as much new alluvium as laterite. What I consider to be conclusive on this point are the records of the Midnapur Zamindari themselves and the answer to me of Mr. Woodgates which may or may not have been recorded. The records show some thousands of tons of laterite as extracted from his area, but no other stone. And in fact there is no other stone, at any rate, in this section of the Midnapur Zamindari. Whether the laterita is continuous under the alluvium in the valleys or hollows is not so certain. Dr. Coulson thought it might be continuous, Dr. Fox thought otherwise. The plaintiffs are entitled to the benefit of Dr. Fox's view that the streams have cut through the laterite and exposed the under-gravels and clays. 22. The general result of the evidence, in my opinion, is that the country consists of a plateau of laterite, intersected by hollows of other alluvium. The ground has a hard rocky or gravelly surface, covered for the most part with a very thin laterite surface soil. It is what is called in English "laterita country." If you advertised a house to let, you will say it was "on laterite." I now coma to use and value. I have had the advantage of Dr. Gupta's note on this, but it is difficult to state the result of the evidence shortly. One must distinguish stone from morum. As regards the stone it has the advantage of accessibility, it is soft to quarry, it hardens. It is not a good stone. It has been used for building for a great many years before 1901. How far the stone is exported beyond the laterite area is a question which was not pursued. On this point we have only the evidence of the contractor who gave the rate F. O. R. Midnapur. He is the only witness the value of whose evidence is at all uncertain; it is therefore somewhat unfortunate for the plaintiffs who desired to recall him that owing to his leaving Calcutta his books were not available. In the circumstances I will take his evidence at its face value. It amounts to this that some stone is put on the railway for shipment. Generally, however, my inference is that its quality does not enable it to be used commercially at any material distance from laterite areas. There is no evidence that it is used by Municipalities beyond the laterite area, we do know that Calcutta, for instance, uses stone from much greater distances, in particular the Rajmahal stone. As regards the user of the stone we have various records, including the contract of 19th June 1901 under which the railway undertook liability for the payment of royalty. 23. Secondly, as regards morum: that it has been used for roads in the laterite districts for a great many years is clear. It is a good binding gravel. In point of fact, there is nothing else which could be used. It is also used for roofs and floors. The railway uses it for various railway purposes which will appear from their records. It is transported by the railway to considerable distances along the line, even to Calcutta. But again there is little or no evidence that it is transported commercially to places at all distant from the laterite area. Dr. Percival's evidence is to the contrary: Q. 94. There is no doubt that the railway itself has created the main demand for morum. The use by the railway will appear from the morum register. Brief, G. 87, which shows the quantities used and the various purposes to which the railway itself puts this material. But in the case both of morum and stone, one of the main reasons for its use appears to be its proximity, its quantity and its cheapness. Its value at site is almost impossible to reckon and its market value appears therefore primarily to depend upon its nearness to the railway or rather its nearness to a railway siding. The one actual instance of sale at considerable distance from site is that to the Marine Club by the railway (Mr. Hill, Q. 112). As regards the oral evidence on its value and use, there is Mr. Murray, Q. 72, Dr. Percival, Q. 94, and some answers of Mr. Woodgates. The records are interesting. Taking the Midnapur Zamindari return of 1901, Rule 63, we find laterite, 11343 tons (as already indicated no other stone), and approximate value Rs. 583 this presumably being an estimate of the value at site. This works out to something less than three quarters of an anna a ton. Without taking this too literally, and merely as a matter of comparison it is some indication that the intrinsic value of the material is low as compared with other rocks. As compared with this, in favour of the stone is the payment under the contract of 1901 which did amount to several thousand rupees. 24. Passing now to the literature and vernacular of laterite, I again select the following classes of evidence on this point. Books, letters, leases, judgment, oral evidence, and lastly acquisitions. I omit for the time being books. As regards letters, there is the 1904 correspondence g/80 to 84. This has not, I think, much value as an indication of the vernacular. On the other hand, the correspondence between the railway and the plaintiffs of 1934-87 contains many indications that the railway regarded laterite as a mineral. The whole correspondence is under the heading of "minerals from Godapiasal," until early in 1937, the railway received legal advice. Next, leases and petitions. In my opinion these are not of great value. There are two classes of lease, those in which the tenant agrees that he has no sub-soil rights, the Bengali expression is as follows: "nimna satwa" (see examples, pp. 48, 59. 62). These appear to be essentially agricultural tenancies. There are other leases, one in which "metal, coal, stones or other minerals if des-covered" are granted; and others in which such metals, coal, stone or other minerals if in future discovered" are reserved. There are petitions whereby tenants under agricultural tenures asked for permission to use stone. In all these cases it is said that "minerals" must refer to morum and laterite because there is no other stone or mineral. As regards judgments, I shall assume they are admissible as transactions in which rights have been challenged or asserted. There is one judgment of this Court which although not used as binding upon me and which is not inter partes, yet lays down definitely that morum is a mineral. It is a judgment to which I shall refer again. 25. There is the oral evidence: Mr. Coulson to whom everything other than the surface soil is a mineral. Anything non-vegetable or non-animal which has a value or rather a potential value, locality, or demand makes no difference. Clay is a mineral in Bengal, sand is a mineral in Rajputana. It cannot be a mineral in one place and not in another. Mr. Woodgate has always called laterite a mineral. Mr. Murray the same. Again, there can be no change in the status of a substance by reason of its situation or quantity. Mr. Murray is a practical mining expert, Mr. "Woodgate is undoubtedly an experienced Manager of a Zamindari, and Dr. Coulson a practical geologist. Dr. Percival was, I think, not specifically asked as to the vernacular, but to him it was a " waste matter," Dr. Percival being interested in more important and valuable substances. Dr. Fox confined himself to the technical and scientific connotation of mineral. He agreed that laterite or any other stone could be described as a "mineral substance." The plaintiffs, therefore, have a certain volume of evidence on the point of vernacular and so far as bona fides of the witnesses are concerned, I have already expressed my opinion. The only question and one upon which I feel considerable difficulty, is whether their vernacular is really the vernacular we are seeking and which the English law contemplates, a matter to which I shall again refer. 26. Lastly, as a class of evidence on this question of vernacular, are the acquisitions themselves and the contract of 1901. The plaintiff relies upon the four acquisitions to which I have referred, that of 1901 in particular, to establish a particular construction of "minerals" in the 1901 reservation. This is a delicate process. It is to some extent construing a thing by itself. At the same time, the plaintiffs are entitled to rely upon anything which amounts to conduct indicating an understanding of the word "minerals," that is, anything to indicate the fact that laterite was a vernacular mineral, the parties being as already noted, both landowners and both commercial concerns. I shall have to deal with the acquisitions in considerable detail in connexion with the other branch of the matter, namely, the exclusion of the common rock test, and shall, therefore, deal with the acquisitions in relation to both questions, the common rock test and their bearing, if any, on the vernacular. 27. I now come to the acquisitions and will deal first with the acquisitions generally, before dealing specifically with the acquisition of 1901. I give the important data in a tabular form. 1. Acquisition of 1896. Purpose-Construction of Cuttack-Midnapur-Calcutta Extension. No exception. Quarries valued. 2. 1901. Purpose-Construction of Midnapur Jheria Extension. Exception. Quarries not valued. 3. 1920 Acquisition. Purpose-"Excavation and removal of morum and laterite stone for the use of the railway company." Exception. Quarries valued. 4. 1935 Acquisition. Purpose - Morum quarries. No exception. Quarries valued. 28. Acquisitions Nos. 1 and 4 fall into the same category, and the plaintiffs seek to draw the inference that the quarry valuation is the valuation of reserved minerals, on the following argument (1) minerals are included in the grant, (2) stone has been separately valued, (3) therefore stone has been valued as a reserved mineral. It is not an unnatural inference. But for reasons which I shall try and explain it is not the only inference. With regard to the 1896 acquisition, I doubt whether it is the correct inference. The form of the proceedings in connection with the 1896 acquisition at G. 11-12 indicates to my mind rather that the quarries were being valued not qua reserved minerals but qua part of the land. The same with the acquisition of 1934 (see B. 98). 29. Next is the 1920 acquisition. Here, there is an exception, and it was specifically, a quarry that was purchased. The Land Acquisition Collector speaks (see B. 81, 82, 83, 89 and 92) of "compensation for mineral rights." He was valuing the land subject to the exception. He had no right to value excepted minerals nor was he, in fact, doing so. This indicates that there are two processes. Process (a) where there is an acquisition without exception. In such a case, the Collector will have to value the minerals which might have been the subject of exception but were in fact included in the grant. Process (b) where there is an acquisition with exception. In such a case the Land Acquisition Collector has to value the land, and will do so according to its quality or composition, either as agricultural land, water, stone or sand. Not only does process (b) appears from the acquisitions in suit, but it is also, I think clear from the decided cases, e. g., the case in Mohini Mohan v. Secy. of State ('21) 8 AIR 1921 Cal 193 where ' the Land Acquisition Collector valued the land qua clay. Govt. of Bombay v. N. H. Moos ('22) 9 AIR 1922 Bom 254, land was being valued qua quarry and not qua reserved minerals. It was the same in a case, for which I am grateful to Dr. Gupta for citing and which I shall discuss further, in Secy. of State v. Jyanendra Chandra ('30) l7 AIR 1930 Pat 112, where a quarry was acquired with exception and the quarry was valued according to the cubic contents of stone which it was commercially capable of producing. I shall deal with this case again. 30. I now come to the 1901 acquisition in connection with which I agree that there is a good deal which is equivocal. There is the exception. On 23rd September 1901 the zemindar-proprietor claimed compensation for trees and stone quarries. This is clearly process (b). The Land Acquisition Collector did two things. He first told the Raja to file a joint petition with the patnidar. If the quarry was a reserved mineral he should have said, " The minerals are reserved and I have nothing to do with them". He went on to reject the claim of the zemindar for the value of the quarry on two grounds first because the patnidars did not join in making the claim and they were the persons to do so, a correct ground and secondly-I use his own words-"and as we have not acquired the quarry". This latter statement has been much relied upon by the plaintiffs, and in the circumstances, there being no evidence that the agreement of 19th June 1931 was known to him, it undoubtedly indicates a belief that the quarries were outside the acquisition and therefore within the exception. This statement is analogous to that to be found in Secy. of State v. Jyanendra Chandra ('30) l7 AIR 1930 Pat 112 at p. 749, where again the Land Acquisition Collector or Judge made a precisely similar statement notwithstanding that it was the quarry itself which was being acquired. The reason why the patnidars did not claim for the laterite was not because the laterite was reserved, but because they had already entered into a separate agreement with regard to it, that of 19th June 1901. That agreement is really the key to the transaction. The plaintiffs contend that it is an agreement supplemental to the acquisition proceedings providing for the acquisition by another process of "reserved minerals." The other view is that it is a merely substituted method of paying compensation for quarry land, the exception remaining intact -a method of payment by royalty in the place of a capital payment with the result that it could not be shared with the zemindar. At this distance of time it is impossible to conclude that that was its real or sole object. That was its result. The agreement, as Dr. Gupta has pointed out, was for three years only and renewable at the option of the railway. I construe Clauses (8), and (9), as follows. Clause (8), is in respect of land not acquired, the company paying royalty on materials taken at the rates given in the schedule. Clause (9), is in respect of land acquired, the company paying royalty for three years for building stone and in consideration therefor "the proprietor waives all claims to compensation for quarry rights." I have little doubt that this agreement was not intended so far as the lands acquired are concerned to deal with reserved minerals. In the first place, it would substitute another process for that laid down in the Land Acquisition Act. It does not mention the reservation. It carefully avoids the use of the word 'minerals'. It is throughout 'materials', and the materials are clay, stone and rubble. It refers to "quarry rights" and "compensation." It points to my mind to process (b). The result was that Government did not have to pay for the land, qua quarry. 31. There are other considerations which arise upon this agreement. If it relates to excepted minerals the plaintiffs have parted with their right to compensation. This was the subject-matter of the amendment sought by the defendants. No doubt the agreement was for three years, and if the waiver of right to compensation was limited to that period, that is an answer. Mr. Chaudhuri pointed out the absurdity of waiving a right to compensation for reserved minerals in return for royalty for three years. I am inclined to agree, and for this reason among others, prefer the alternative view that it is not an agreement with regard to reserved minerals but an agreement relating to the valuation of the quarry, or compensation for the quarry qua part of the land. Again, if it covers, as the plaintiffs contend, reserved minerals, it should be noted that the agreement only values laterite stone. There is no mention of morum, an indication that morum of that date was not regarded as a mineral. My view, therefore, of the 1901 acquisitions is as follows: 32. The fact that the Land Acquisition Collector has not paid for the laterite quarry and has moreover stated that the laterite quarry was not acquired in this case, cannot control the construction of the terms of the acquisition. I am not now on the question whether the statement can amount to an admission, or whether it is admissible only as conduct from which an inference can be drawn. I am not concerned for the moment, with the question whether any such admission could in law affect the construction of the exception. My view is that oven considered as an admission by the Crown it is of little value on the facts. I do not, however, at the moment see how any conduct or statement of the Crown can exclude the common rock test. The result is that we are still left with the rules of construction formulated by the English law. It may be otherwise with regard to the "vernacular." The Crown is a land owner. Therefore, the fact that the Crown has in this or in any other case treated stone as an excepted mineral is relevant to the question of vernacular. I have expressed the view that even if so used this statement of the Collector and other statements of a similar nature are not decisive. 33. The statement of the Land Acquisition Collector in the 1901 proceedings is the one with which I am immediately concerned. But there is the statement of the railway in the correspondence, the letter of April 1935, there is the admission of the Secretary of State in the pleadings in the suit in Secy. of State v. Jyanendra Chandra ('30) l7 AIR 1930 Pat 112 and the admission of counsel for the Crown in that suit, to the effect that all stone is a reserved mineral, From these admissions it follows that acquisition, subject to the exception contained in Section 3, Mines Act, amounts to an acquisition of only surface rights. It has to be remembered that the Crown is in India the largest land owner, and therefore the Crown is interested to assert, to maintain and enlarge underground rights. I desire to point out where I think lies the fallacy. I do so with diffidence. I hope that there are some advantages in a fresh mind. If so I can only say that with regard to land acquisition proceedings no mind could be fresher. In construing a declaration of acquisition, it seems to me that the following features should be noticed: (1) the purpose, (2) the exception, (3) the exception to the exception, which relates back to the purpose, (4) the proceedings before the Land Acquisition authorities, in particular the ascertainment of price. Take first this matter of purpose. It is not without importance because upon the statement of the purpose will depend the scope of the exception to the exception "necessary .... in the construction of the work for the purpose of which the land is being acquired." This language is not identical with that of the English statutes. It might be clearer to omit " for the purpose of which" " the purpose " in the last line is not the public purpose. Speaking generally "the work" is identical with the "public purpose." It seems to me that there has been some misunderstanding in stating the public purpose in declarations. In the 1920 and 1934 acquisitions the public purpose has been stated respectively "to excavate morum" and for " morum quarries." The difficulty at once becomes apparent when you seek to apply the exception to the exception. The "public purpose" I should have imagined to be the railway. The case in Secy. of State v. Jyanendra Chandra ('30) l7 AIR 1930 Pat 112 illustrates the point. One might paraphrase the result of this case in the following terms: " We need stone for a quarry, the public purpose being stated to be the quarry. We except the stone, except so much stone as is necessary to take in constructing the quarry." I shall return to this case which presents the spectacle of the grant immediately and completely devoured by the exception, except for such portion as could be saved by the exception to the exception. 34. I come next to the reservation. My suggestion is as follows: The land acquisition authorities appear to have suffered from a confusion arising from the following assumptions: (a) that all stone is a mineral and (b) (which follows from (a) ) that acquisition with exception is acquisition only of surface rights. Where the declaration is free of exception, it is of course open to the Collector to value stone as an excepted mineral. Whether he is clear that he is doing this is more than doubtful. Secondly, where there is a declaration with exception, as in the 1920 acquisition and the Pakur stone acquisition in Secy. of State v. Jyanendra Chandra ('30) l7 AIR 1930 Pat 112 the Collector is precluded from valuing anything as a reserved mineral. What is he doing in such a case? The answer, I think, is that in certain cases he does not himself know. Hence the confusion in Secy. of State v. Jyanendra Chandra ('30) l7 AIR 1930 Pat 112 and in the 1901 acquisition in this case. What he ought to be doing, is valuing the land. The absurdity of the situation is disclosed by the decision in Secy. of State v. Jyanendra Chandra ('30) l7 AIR 1930 Pat 112. The learned Judges were at the outset faced with the admission of the Secretary of State. The declaration contained the exception. In the acquisition proceedings, the quarry was valued according to the stone commercially available; some millions of cubic feet; and this was paid for by the Crown. I should have mentioned that the purpose was stated to be "quarries in connexion with the construction of the Lower Ganges bridge at Sara." When the bridge was finished, the proprietor turned round and claimed compensation for all further stone removed by the railway. That was the suit. The Secretary of State first in his pleadings and then through his counsel admitted that the stone was within the exception and fell back upon estoppel arising from the fact of payment for the stone as a quarry. The learned Judges bound by the admission of the Secretary of State, had therefore only to decide upon the issue of estoppel. In rejecting the plea of estoppel they relied, as I have already indicated, upon a statement or ruling by the land acquisition authorities, that the stone had not been acquired, a statement analogous to that in the 1901 acquisition in this case. They, therefore, in the end held that the meaning of this acquisition was that the Secretary of State had only acquired the amount of stone to which he was entitled under the exception to the exception. 35. It is therefore, I think, fair to give as a result of this case the following: The Secretary of State bought and paid for stone, with the exception of stone, except such stone as might be necessary to construct the work. The real question was whether the quarry stone could possibly be included in the reservation. No more clearer case of absurdity could, in my opinion, arise than a railway company purchasing a quarry and leaving out the stone. It is my view, therefore, that the statement of the Land Acquisition Collector in the proceedings of September 1901 amounts at most to conduct from which an inference may be drawn as to the construction of the word 'minerals' and that at best such inference is of doubtful value. It cannot in my opinion control or exclude the legal test, and it does not in my opinion amount to a variation of the declaration by in fact excluding stone. 36. We are left therefore with the test laid down in Budhill's case (1910) 1910 AC 116 and I return to deal with the assault made generally by Mr. Chaudhuri, and in detail by Dr. Gupta on "the common rock." Dr. Gupta's attack was from various directions. Dr. Gupta con-tended first that as a matter of law the common rock test had been narrowed down. He contended that the speech in the Glenboig case (1911) 1911 AC 290 indicates that Lord Loreburn himself has modified the common rock test or subordinated it to the vernacular test; that provided it was something " exceptional in use, character or value," the circumstances of its extent, of its being the surface of the land, is immaterial. I have been a little puzzled by the word "other" in the last but one line at p. 299. But I do not read anything in this case either to amalgamate the two tests or to render them alternative. It still seems to me that the common rock negative test has first to be passed. Dr. Gupta pointed out that in a ease such as the present, the argument of absurdity should not apply since under the Mines Act, the proprietor must work so as not to endanger the line. This argument applies equally in England, That Mr. Woodgate, whom I have seen, is personally too much of a gentleman to tunnel under the railway line at Godapiasal, I am quite sure. The argument on principle remains. 37. Secondly, Dr. Gupta contended that the common rock test must logically give way to the vernacular test. If coal or iron stone or slate is in fact the common rock, they will remain within the exception. Suppose, therefore, there is a substance, china clay, for instance, established to be a mineral in the vernacular, suppose this to be the common rock, will it then cease to be a mineral or be removed from the exception? Hence, if a mineral according to the vernacular is the common rock, the common rock test must give way. Clearly the position which upon the common rock test may be reached, presents difficulties. At the same time I shall, notwithstanding the doubts which I have expressed and will again indicate, decide] this case on the basis that laterite is a-"vernacular mineral" but that on authorities the ratio decidendi of which seems so much in accordance with reason the common rock test excludes Godapiasal laterite from the exception. I did not fully appreciate Dr. Gupta's argument in this connexion based upon what was said in Symington v. Caledonian Railway Co. (1912) 1912 AC 87. There is a difference between "a common rock" and what the House of Lords meant by "the common rock of the district." 38. Lastly on the facts. Can the plaintiffs surmount the common rock? Mr. Chaudhuri's point was to the effect that laterite in this district was not continuous. He contended that in order to be excluded from the exception by the common rock test, there should be an uninterrupted expanse of laterite extending the whole length of the railway. I do not accept that view. He contended further that there was nothing to prevent the railway, under the exception to the exception, from constructing its line. The purpose of railway, however, is sometimes to run trains. Its function does not cease when the railway is constructed. The phrase "permanent way" should have some significance and if Mr. Chaudhuri's theory holds good, the way become exceedingly impermanent; the very result which from Farie's case (1888) 13 AC 657 downwards has exercised the minds of the English Judges. I agree that the common rock test is one which in certain circumstance may be very difficult to apply. In this case, on the evidence, there is in my opinion no difficulty. 39. Dr. Gupta's attack on the common rock on facts took a different and more insidious form. The morum, he says, is not "common rock" because it is exceptional. It is exceptional not by way of regional scarcity but exceptional in contrast to upper and lower strata. Again I agree that if within the land acquired there were substances however extensive, distinct and distinguishable from the other strata or horizons, this might well exclude such substances from the common rock category. But the mere fact of the ground being in different horizons, distinct as against each other, is not decisive. Depth might, I agree, be extremely important. For instance, if in Bengal stone could be discovered at a depth of 1000 feet, one could hardly call that "the common rock," even if it extended for a great distance. But this is not such a case. In the Budhill's case (1910) 1910 AC 116 the sand-stone in question was below 8 feet of soil and 12 feet of clay. In this case the substances in question are, with the exception of the sparse laterite surface soil, the surface. The distinction between surface soil and the rock below it cannot, I think, be relied upon to make it exceptional. Surface soil always varies or should vary from the rock immediately beneath it. 40. Lastly, Dr. Gupta returned via exceptional properties of use and value to the vernacular. If vernaculars differ, the commercial vernacular should succeed. If a substance is a mineral in the vernacular its quantity or frequency of occurrence cannot detract from its status. As already indicated, I do not thus understand the Bud-hill test. Indeed, based as the common rock test is upon common sense, it seems to me that the very extension of the vernacular which according to Dr. Gupta includes everything below the ground not animal or vegetable indicates the need for its retention. This reminds me of Mr. Chaudhuri's initial attempt to exclude the common rock test upon an argument that it was one inappropriate to India where the areas covered by one rook are likely to be very much larger than those in England. Assuming this to be very much larger than those in England. Assuming this to be the case, to me it provides no logical reason for the exclusion of the test; if anything, the contrary. On the other hand, it does seem to me that the vernacular test is more difficult to apply in India. (2nd August 1940) 41. Before I continue from the point where I left off yesterday it may be desirable to add to the discussion of the law on two points. The law has been discussed before me on the basis that there is no material distinction between the various statutes in England such as those relating to canals, waterworks, railways, and so forth, under which the English cases were decided and the Land Acquisition Act read with Mines Acquisition Act of 1885. Under the Indian system no doubt the land under the declaration immediately vests in the Crown, and the process of valuation is conducted by quasi-judicial officers of the Grown. So far as I have considered the system in England it partakes rather of the nature of compulsory transactions between the parties, the conveyances being in terms of or referable to the particular statutes. The process of valuation is different. I have proceeded on the basis that there is no material distinction between a statutory acquisition and a compulsory bargain between the parties. Indeed the law now goes further and has decided that there is no fundamental or initial difference between a private free bargain and a statutory bargain. 42. The second point is as regards the period at which the principles of construction whatever they be, are to be applied. Are the statutory words to be construed as at the date of the statute or at the date of the transaction? It has not been contended in this case that the result would be different, and I have therefore assumed, having regard to the language in the Glenboig case (1911) 1911 AC 290 and other cases that the statutory language has to be construed by tests applied in relation to the particular transaction or as at the date of the particular transaction. In this case, as I have already said, it makes no difference. When I broke off yesterday I had ventured to suggest that of the two tests, that of the "relevant vernacular" was actually the more difficult to apply to Indian conditions. The geological structure is not so different; the social structure, using that word in a wide sense, is in my opinion more so. As already indicated I propose to decide the case on the basis that the plaintiffs have established by their evidence the vernacular title of laterite to be a mineral. I have enumerated the classes of evidence which the plaintiffs adduced. I omitted to refer, if I remember rightly, to one class in detail. That is the books of reference. Mr. Murray was good enough to leave several text books in which will appear references to all kinds of stone or clay as minerals or under the heading 'mineral' in some form or other, for instance, the Imperial Institute of Mineral Resources Department's Index to Royalties in the British Empire (certain pages in his book) will show that for the purpose of royalties all stones including laterite are regarded as minerals. The Crown claims and receives royalty upon them. One other book is an American book on non-metallic minerals published in 1925. In this again everything of any commercial use is included under the general term "minerals" or "mineral resources." The same with the book "Practical Stone Quarrying" which includes for instance the quarrying of clay. 43. The vernacular test, as I understand it, is not really whether laterite or any other substance can be conveniently or properly dealt with, under the heading of 'mineral substances' or resources, or, 'minerals' for short. The test, as I understood it, is "if you ask anyone" whether he will say that laterite comes under the description "mines of coal and other minerals"; "anyone" being afterwards limited to certain classes. I am not at present on the question of date. The classes of persons, whose evidence has been adduced in this case, are (1) tenantry, (2) landowners, in particular the Midnapur Zamindari Co., (3) the Crown, and (4) the railway. Now, all these in India are permeated with ideas of surface and under surface rights. Apart from the lands affected by permanent settlement, the Crown is the biggest holder of underground rights. Its whole outlook is tinged with considerations which do not arise in England, though they may arise in the Isle of Man: see Khushal v. Secy. of State . Lastly, there are the mining and geological professional witnesses. As already stated, with regard to Mr. Murray's and Dr. Coulson's evidence I have not the least doubt of its freedom from partiality or its sincerity. I have rarely listened to testimony more worthy of attention. But were they not in this case rather expressing their point of view than indicating an existing vernacular? The vernacular, as I understand it, is something in the nature of a spontaneous answer to a simple question. The evidence before me was naturally more conscious and considered. Both gentlemen are devoting their lives to the development of the mineral resources of India. That is their point of view. They are not leaving out from the category of minerals any mineral resource. As an indication, take Dr. Coulson's attitude towards clay, the biggest industry in India. India is in the clay age. 44. The result, at any rate, would be that the relevant vernacular in India would differ very materially from the relevant vernacular in England. I do not mean that the vernacular cannot differ in different countries or in different places. I do not mean that at all. But it does not lessen the doubt which I feel, whether this evidence, however sincere and impartial, is exactly what the Court ought to be looking for and which in India will, I think, be extremely difficult to find. In point of fact the evidence of these witnesses brings us back not merely to Lord Mellish, but actually to Lord Romilly of 1865. It is upon considerations such as these that I have a philosophic doubt upon this particular point. I should have gone over the matter again with greater care had the result of this case depended wholly or primarily upon the vernacular test. As it is, I proceed upon the basis that the evidence which the plaintiffs have adduced sufficiently establishes that at present Godapiasal stone and morum are regarded as minerals and that there is no sufficient evidence to show that the vernacular has changed since 1901. But since it is the common rock of the district the plaintiffs are defeated by the first Budhill test. The answer therefore to the first essential question, is that the materials in suit do not fall within the exception. With regard to the second essential question as formulated it is not necessary to decide whether the materials in suit fall within the exception to the exception. But the matter has been argued, and in deference to that argument and for completeness, I will deal with it shortly. The actual words are except only such parts as it may be necessary to dig ... in the construction of the work, for the purpose of which the land is being acquired. 45. I have already commented upon the language. It might be clearer to leave out the words following "work," and that, if I recollect rightly, is the case in the English statutes. There is no material distinction between "the work" and the notified "purpose," the former being the physical embodiment of the latter. "The work" is the actual canal, reservoir or railway, which has to be constructed in order to carry out " the purpose." 46. The points to be noted are these: (1) It is an exception and therefore the onus is upon those who rely on it. (2) It is an exception to an exception in order to meet a particular difficulty or class of difficulties, i. e., in the course of construction cutting through a hill or something of that nature. (3) Lastly there is the wording. In my opinion it is not proper to resort to the exception to the exception to save the grant from being devoured by the exception as was done in Secy. of State v. Jyanendra Chandra ('30) l7 AIR 1930 Pat 112. In my view the narrow construction of the exception to the exception is the correct one. I have already taken the liberty of indicating the desirability of stating with care the purpose for which the land is acquired. The answer therefore to the second question is that if the materials in suit are within the exception, they are not within the exception to the exception, except of course in so far as they were actually dug in constructing the work, for instance, the Surdia spoil heaps. This disposes of the case except for minor issues. 47. With regard to estoppel, I have not been able to find that by any statement to be found in any document or by act of the defendants, the plaintiff company was led so to alter its position as to preclude the defendants from contending that the materials in suit are not within the exception. With regard to the contract, it is pleaded, I think in para. 6 of the plaint, that by a particular letter of 17th April 1936 the railway agreed to pay for Godapiasal laterite, and I allowed upon this an issue. The suit, however, is not based upon such an agreement, and in my view the letter is really pleaded by way of an acknowledgment or for the purpose of limitation. Acceptance is not pleaded. In fact the correspondence does not disclose any complete acceptance. Breach is not pleaded, nor does it appear that any cause of action is founded upon breach. It has not therefore been necessary for me to consider questions relating to damages, either as to quantum or principle. If I have not already acknowledged my debt to counsel, both senior and junior, and to those who prepared the case on both sides, let me do so now. The result, however, is that for reasons explained the suit must be dismissed. I am ready to hear any argument on costs. 48. I have heard Mr. A.N. Chaudhuri. He has reminded me of the defendant's offer to pay for the materials in suit as minerals. He has also referred me to the proceedings for transfer, in particular to certain passages in affidavits by officers of the railway, which indicates that the result of this case is of importance to the railway, not so much on account of the claim, but in order to obtain a decision on principle which will be of value to the railway generally. This appears to be the fact. Mr. Chaudhuri relies on the fact that there is no Indian decision directly on the point, and that such as exists are in his favour. He also referred to the care which the plaintiffs' attorney had taken to limit the issues and which counsel had taken to shorten the trial, especially as regards cross-examination. In the respects last mentioned, the parties are undoubtedly indebted to their legal advisers. Although I regret that costs which must be heavy should fall upon the plaintiff company, I do not feel myself justified in departing from the general rule. In point of fact, however, the attorney and client costs will, I imagine, far exceed those as between party and party.

Author: A Ali

Midnapur Zemindari Co. Ltd. vs Bengal Nagpur Railway Co. Ltd. on 1 August, 1940

Calcutta High Court

JUDGMENT R.K. Agrawal, J. 1. R.K. Industries, Muzaffarnagar, has filed the present revision against the order dated January 1, 1991, passed by the Sales Tax Tribunal, Muzaffarnagar Bench, Muzaffarnagar, in second appeal No. 709 of 1985 (1977-78), relating to proceeding under Section 15-A(1) of the U.P. Trade Tax Act, 1948 (hereinafter referred to as "the Act"). 2. The facts of the case in brief are that the applicant is a registered dealer under the provisions of the Act and is engaged in the business of manufacture and sale of crushers and its parts. During the assessment year 1977-78, it had purchased spare parts and machineries as well as iron steel against form III-B. The penalty proceeding under Section 15-A(1)(1) was initiated and a sum of Rs. 12,000 was imposed as penalty. However, in the first appeal filed by the assessee, the Assistant Commissioner (Judicial) had set aside the penalty. Feeling aggrieved thereby, the Commissioner of Trade Tax has preferred appeal under Section 10 of the Act before the Tribunal. The Tribunal vide impugned order has allowed the appeal and restored the penalty order. 3. I have heard Shri R.R. Agrawal, learned counsel for the applicant and Shri S.D. Singh, learned Standing Counsel, for the respondent. 4. The learned counsel for the applicant has submitted that in respect of assessment years 1976-77, 1978-79, 1979-80 and 1980-81 also the penalty proceeding under Section 15-A(1)(1) was initiated against the applicant in respect of similar transactions/purchases made against form III-B. The penalty imposed under Section 15-A(1)(1) of the Act was deleted by the Assistant Commissioner (Judicial) by common order dated January 25, 1985. Before the Assistant Commissioner (Judicial) the appeal for the assessment year 1977-78 was also there. The Commissioner of Trade Tax had filed appeals under Section 10 of the Act in respect of all the assessment years. All the appeals except the appeal for the assessment year 1977-78, were heard and decided by the Tribunal, Lucknow Bench, Lucknow vide judgment and order dated April 23, 1988 and the Tribunal had dismissed all the appeals filed by the Commissioner. It had upheld the deletion of the penalty by the Assistant Commissioner (Judicial), However, the appeal for the assessment year 1977-78, was not decided earlier as it was cognizable by the Division Bench of the Tribunal. Subsequently, in view of the amendment made under Section 10 of the Act, the appeal was heard and decided by single member. It is submitted that before the Tribunal, the applicant had filed copy of the order dated April 23, 1988 passed by the Sales Tax Tribunal, U.P., Lucknow, but the (Tribunal has not adverted to the said order. The facts being similar, the applicant submits that the Tribunal has committed error in upholding the levy of penalty when in similar circumstances, the penalty for assessment years has been deleted. 5. Heard the learned counsel for the parties. 6. The Tribunal has not considered its earlier order dated April 23, 1988, passed in a similar situation which vitiates the impugned order dated January 1, 1991. Thus, the impugned order dated January 1, 1991 is set aside. The Tribunal is directed to decide the appeal afresh in accordance with law. In the result, the revision is allowed.

Author: R Agrawal

R.K. Industries vs Commissioner Of Sales Tax on 12 September, 2000

Allahabad High Court

JUDGMENT A.B. Palkar, J. 1. This is a State appeal against acquittal recorded by the Additional Sessions Judge, Wardha on 24.12.1992 in Sessions Trial No. 108 of 1992 against respondent for the offence punishable under Section 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act (for short, the "N.D.P.S. Act"). 2. The respondent was prosecuted for the offence punishable under Section 20(b)(i) of the N.D.P.S. Act on the basis of the complaint filed by Constable Subhash Bhoyar who was on escort duty for taking prisoners to the Court premises. When on duty, he noticed the accused loitering in the premises nearby the prisoners and while the accused was trying to hand over packet to one of the prisoners, he was caught red handed and packet in his possession was seized. It appears that the contents of the packet were Ganja. Seizure panchanama was drawn and accused was taken to Police Station and complaint was lodged on the basis of which offence came to be registered. 3. During further investigation, the packet was got examined through Chemical Analyser and it was confirmed that it contained Ganja. 4. The accused pleaded not guilty to the charge and in support of prosecution case, six witnesses were examined and after considering the evidence on record and the arguments advanced, the learned Additional Sessions Judge recorded a finding of acquittal which is impugned before us by the State. 5. On scrutiny of the entire material and arguments advanced before us, we are also of the considered view that there is no reason to disturb the finding of acquittal recorded in favour of the respondent. 6. At this stage, the facts which can be more or less, said to be established from evidence, clearly shows that the respondent was admittedly found moving or loitering in the Court premises where the prisoners were brought by the police and he was found while in the process of handing over one packet to one of the offenders in the custody. Naturally, the main witness is the Constable who found the accused in the process of handing over packet to one of the prisoners. His evidence is, therefore, material. P.W. 5 Subhash Bhoyar stated that the accused handed over one packet to one of the prisoners, viz. Tarasingh. The said prisoner is neither prosecuted nor examined in this case. The accused was taken from the spot to the Control Room and from Control Room, message was given on telephone to the City Police Station, Wardha. In the message recorded in the Station Diary, it is stated that person under the influence of liquor and having narcotic drug was held up. This entry is at number 47 and it is immediately recorded. If the accused was found under the influence of alcohol, and narcotic drug, there appears no reason as to why he was not sent for medical examination immediately. In the detailed report lodged later on and the Station Diary entry record consequent to that, it is not stated that accused was under the influence of liquor. The pancha witnesses have not supported prosecution and were declared hostile. Although the respondent was found in possession of the narcotic drug in the Court premises, no attempt was made to take him before the Magistrate and no choice was given to him to be searched in the presence of Magistrate and the panchanama although it is mentioned that copy of it was delivered to the accused, but the Investigating Officer admitted that no. copy was given to the respondent. Another disturbing feature of the investigation is that at the stage of evidence it was stated that the respondent alongwith packet of Ganja was taken to the shop of Rupa Sindhi where the Ganja packet was weighed. Now, if it was so, then a panchanama of this incident could have been drawn separately or at least the person in whose shop the packet was weighed could have been examined. However, the prosecution has chosen neither to examine the said person nor there is panchanama to the effect that any such incident of weighing Ganja ever took place. There are the material circumstances coupled with the fact that the pancha witnesses have not supported the prosecution which have weighed on the learned Trial Court resulting in disbelieving the prosecution story and we are convinced that these circumstances do create suspicion regarding the entire story of the prosecution and have been rightly considered by the learned trial Judge while discarding the prosecution case. Even P.W. 5 Constable Subhash initially stated the said packet was with the prisoner Tarasingh which is contrary to the prosecution case that the accused was caught while handing over the packet to Tarasingh. In such a situation, Tarasingh should have been examined if, according to the prosecution, he was not in possession at that time and since he is not prosecuted, it may be safe to conclude that the prosecution does not want to contend that the packet at any time changed hands and was handed over to Tarasingh. There is no reason why this witness or the other witnesses either from and out of the prisoners or those present in the Court premises were not examined. The prosecution has totally given up its case that the person found in possession of Ganja was also under influence of liquor and there is no investigation made in that regard, as pointed out earlier, since the respondent was never produced before the Medical Officer for being examined. The station diary entry (Exhibit 19) received by the Wardha City Police Station does not even remotely indicate that the information contained any material that the person named Ashok was found handing over packet of Ganja to the prisoner. This is material, because the respondent was known to P.W. 5 Subhash at whose instance, information on telephone was recorded immediately. 7. Another aspect of the matter is that when search of the respondent was to be taken, he was not afforded any opportunity of giving choice of being searched in presence of the Magistrate or the nearest Gazetted Officer. This is especially material, because the entire incident took place in the Court premises and the respondent could have been taken before the Magistrate. There is no explanation why the mandatory provisions of Section 50 read with Section 42 of the N.D.P.S. Act were not followed and in the circumstances we do not find any reason to take a view contrary to that of the learned trial Judge. However, in any appeal against acquittal, although the powers of the High Court are not different than those to be exercised while examining the judgment of conviction, the High Court would not normally disturb the finding of acquittal if the view of evidence taken by the Trial Court is the one which can be said to be possible view. In this case, the view taken by the learned trial Judge (sic.) rate set immensely. We, therefore, find no substance in the appeal and the same is hereby dismissed.

Author: A Palkar

State Of Maharashtra vs Ashok on 9 June, 1999

Bombay High Court

IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 26/09/2003 Coram The Honourable Mr. Justice P.K. MISRA Writ Petition No.40080 of 2002 S. Venkatesan .. Petitioner -Vs- 1. The Chairman, Tamil Nadu Electricity Board, Anna Salai, Chennai - 2. 2. The Chief Engineer, (Employees Unit), Tamil Nadu Electricity Board, Anna Salai, Chennai - 2. 3. The Superintending Engineer, Electricity Distribution circle, Tamil Nadu Electricity Board, Pudukkottai. .. Respondents Writ Petition filed under Article 226 of the Constitution of India for the issue of a Writ of Certiorarified Mandamus as stated therein. For petitioner: Mr. S. Nagarajan For respondents: Mr. V. Radhakrishnan :O R D E R Heard the learned counsel appearing for the parties. 2. The father of the petitioner was an employee under the Tamil Nadu Electricity Board and he died while in harness. At that stage, the present petitioner was a minor and an application was filed by the mother of the petitioner seeking appointment on the ground of compassionate principles. However, the following communication was made at that stage: "We regret to inform with regard to the request to provide an employment on compassionate ground by one Venkatesan, the son of the deceased employee C. Sundaram, former Wire Man, cannot be considered till he attains the age of 18 years as per the Tamil Nadu Electricity Board Rules". Thereafter, the petitioner obtained majority and further application was made. Such application has been turned down on the ground that the application has not been filed within three years from the date of death of the deceased as envisaged under the scheme. 3. The petitioner has filed this writ petition contending that, since an application had already been filed, which was not considered at that stage because the present petitioner was a minor at that stage, rejection of the subsequent application is arbitrary. 4. On behalf of the respondents, a counter affidavit has been filed justifying the rejection. 5. After hearing the learned counsel appearing for the parties, and after going through the relevant documents, I am not in a position to sustain the impugned order passed by the respondents. Soon after the death of the employee, an application had been filed by the mother of the present petitioner. It is, of course, true that at that stage, the petitioner was a minor who could not have been employed and rightly, the communication was issued on 4.11.1998 stating that such application cannot be considered till he attains the age of 18 years as per the Tamil Nadu Electricity Board Rules. In other words, it must be taken that the application had been filed within three years and such application had been kept pending because the petitioner was a minor at that stage. The subsequent application must be treated as a reminder and cannot be considered as a fresh application. Even in the previous communication, the application had not been rejected but it was only stated that the application cannot be considered till the petitioner attains the age of 18 years. In other words, after the present petitioner became major, his prayer should have been considered. 6. In such view of the matter, the rejection of the subsequent application which was obviously by way of reminder, is untenable. Accordingly, the writ petition is allowed and the respondents are directed to consider the question of appointment of the present petitioner on compassionate ground in accordance with the scheme as expeditiously as possible. No costs. Index: Yes Internet: Yes asvm To 1. The Chairman, Tamil Nadu Electricity Board, Anna Salai, Chennai - 2. 2. The Chief Engineer, (Employees Unit), Tamil Nadu Electricity Board, Anna Salai, Chennai - 2. 3. The Superintending Engineer, Electricity Distribution circle, Tamil Nadu Electricity Board, Pudukkottai. 

S. Venkatesan vs The Chairman on 26 September, 2003

Madras High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.46982 of 2008 1. BIRENDRA PRASAD 2. NARENDRA PRASAD BOTH SONS OF LATE KAMALA PRASAD. 3. DEEPAK KUMAR, SON OF NARENDRA PRASAD ALL RESIDENTS OF VILLAGE- PANTOKA, P.S.- RAXAUL, DISTRICT- EAST CHAMPARAN. Versus 1. THE STATE OF BIHAR 2. JAGAT NARAYAN PRASAD, SON OF BASUDEO PRASAD, RESIDENT OF VILLAGE- HAZMA TOLA, P.S.- RAXAUL, DISTRICT- EAST CHAMPARAN. ----------- 2 14.07.2010 Mr. Amrendra Nath Verma learned counsel states that he shall not be pressing the present application seeking restoration. The application is dismissed as not pressed. ( Kishore K. Mandal, J. ) pkj

Birendra Prasad &Amp; Ors vs State Of Bihar &Amp; Anr on 14 July, 2010

Patna High Court - Orders

Gujarat High Court Case Information System Print SCA/10623/2008 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 10623 of 2008 ========================================================= PRAVINKUMAR GIRDHARLAL - Petitioner(s) Versus COLLECTOR & 2 - Respondent(s) ========================================================= Appearance : MR NIKHILESH J SHAH for Petitioner(s) : 1, MR JK SHAH ASST GOVERNMENT PLEADER, None for Respondent(s) : 1 - 3. ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 26/08/2008 ORAL ORDER Learned advocate Mr.N.J.Shah for the petitioner has agreed to delete certain remarks and allegations from the petition against the official respondents. Since such remarks find place at various places in the whole petition, he seeks permission to withdraw the petition to file fresh petition suitably amending the pleadings. In view of the above situation, the petition stands disposed of as withdrawn with liberty to file fresh petition. ( Akil Kureshi, J. ) kailash     Top

Author: Akil Kureshi,

Pravinkumar vs Collector on 11 November, 2011

Gujarat High Court

Gujarat High Court Case Information System Print CR.A/918/1990 2/ 2 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 918 of 1990 WITH CRIMINAL MISCE. APPLICATION NO.2284 of 1991 WITH CRIMINAL MISCE. APPLICATION NO.2016 of 1991 ========================================================= STATE OF GUJARAT - Appellant(s) Versus RAJESHKUMAR RATANLAL SINDHI & 4 - Opponent(s) ========================================================= Appearance : MR MG NANAVATI, LD. ADDL. PUBLIC PROSECUTOR for Appellant(s) : 1, MR ANIL S DAVE for Opponent(s) : 1 - 5. MR JM PANCHAL for Opponent(s) : 1, 3, 5, MR HARESH J TRIVEDI for Opponent(s) : 2, 4, ========================================================= CORAM : HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 18/01/2010 COMMON ORAL ORDERCriminal Appeal No.918 of 1990 is filed by the State for enhancement of sentence passed by the learned Metropolitan Magistrate, Court No.2, Ahmedabad on 04th September 1990 in Criminal Case No.1090 of 1990. Criminal Miscellaneous Application No.2284 of 1991 is filed by one Mr. Rohitkumar alias Ranchhodbhai Ramanlal Amin for handing over possession of nine Pokar machines to him and Criminal Miscellaneous Application No.2016 of 1991 is filed by the State for direction that Police Inspector, Madhupura Police Station, Ahmedabad may be directed to get possession of the muddamal machine along with bunch of key recovered from the original accused no.1. Both these applications are tagged with the present Appeal. Hence, Registry is directed to place all these matters before the appropriate Bench. (Z. K. Saiyed, J) Anup     Top

Author: Z.K.Saiyed,&Nbsp;

State vs Unknown on 18 January, 2010

Gujarat High Court

[Section 24] [Complete Act]

Central Government Act

Court No. - 25 CMA No. 10247 of 2010 In re: Case :- CRIMINAL APPEAL No. - 598 of 2002 Petitioner :- Islamuddin Respondent :- State Of U.P. Petitioner Counsel :- In Person (J aiI),Mustafa Khan Respondent Counsel :- GoVt.AdVocate Hon'ble Abdul Mateen J. Hon'ble Yogendra Kumar Sangal,J. Application called out. No one appears to press it. Accordingly, the application is rejected for non prosecution. Order Date :- 3.2.2010 Pradeep/-

Islamuddin vs State Of U.P. on 3 February, 2010

Allahabad High Court

Court No. - 18 Case :- WRIT - A No. - 16914 of 1997 Petitioner :- Hukum Singh Respondent :- Union Of India And Ors Petitioner Counsel :- V.K. Jaiswal,Madan Lal Respondent Counsel :- V.K. Singh,Sc Hon'ble Arun Tandon,J. Nobody is present on behalf of the writ petitioner even in the revised reading of the cause list. The writ petition filed in the year 1997 is directed against suspension. It appears that the writ petition has become infructuous by efflux of time. Therefore, the writ petition is dismissed as infructuous. Interim order, if any, stands discharged. Order Date :- 29.7.2010 Puspendra

Hukum Singh vs Union Of India And Ors on 29 July, 2010

Allahabad High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM Bail Appl..No. 3085 of 2008() 1. BIJU RAJ K.K., AGED 31 YEARS, ... Petitioner Vs 1. STATE OF KERALA, ... Respondent For Petitioner :SRI.M.V.AMARESAN For Respondent :PUBLIC PROSECUTOR The Hon'ble MR. Justice V.K.MOHANAN Dated :16/05/2008 O R D E R V.K. MOHANAN, J. - - - - - - - - - - - - - - - - - Bail Application No.3085 of 2008 - - - - - - - - - - - - - - - - Dated this the 16th day of May, 2008. O R D E R V.K.MOHANAN, Mbs/ JUDGE.  In this Petition filed under Sec. 438 Cr.P.C., the petitioner who is the first accused in Crime No.143/2008 of Peringome Police Station for an offence punishable under Section 498A I.P.C., seeks anticipatory bail. 2. I heard the learned counsel for the petitioner and the learned Public Prosecutor. 3. Having regard to the nature of the allegations levelled against the petitioner and the other circumstances of the case, I am inclined to grant anticipatory bail to the petitioner. Accordingly, a direction is issued to the officer-in-charge of the police station concerned to release the petitioner on bail for a period of one month in the event of his arrest in connection with the above case on his executing a bond for Rs.25,000/- (Rupees Twenty Five Thousand only) with two solvent sureties each for the like amount to the  B.A.No. 3085 of 2008 -:2:- satisfaction of the said officer and subject to the following conditions: If the petitioner commits breach of any of the above conditions, the bail granted to him shall be liable to be cancelled. This application is allowed as above.

Biju Raj K.K. vs State Of Kerala on 16 May, 2008

Kerala High Court

S.B. Civil Miscellaneous Application No.59 of 2007. IN S.B. Civil Writ Petition No.5696 of 1998 Krishan & Others Vs. BOR & Others Date of Order :::: 26/10/2009 Hon'ble Mr. Justice Dalip Singh Mr. N.K. Maloo,Counsel for the applicant-petitioners None present for the non-applicants *** None present on behalf of the non-applicants, despite service. Heard learned counsel for the applicant-petitioners on the application. The legal representatives of the deceased respondent No.4/1 Bhanwar Lal, as mentioned in the application bearing No.16490 are ordered to be taken on record. The amended cause-title be filed within two weeks. The application stands disposed of. Let, the matter be listed before the regular Bench. (Dalip Singh) J. ashok

Shri Krishan And Ors vs Bor And Ors on 26 October, 2009

Rajasthan High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA MJC No.386 of 2009 Raj Kumar Sinha & Ors Versus The State Of Bihar & Ors ----------- 06. 05.07.2011 As jointly prayed for, put up this case after three weeks. Jagdish/- ( Shailesh Kumar Sinha,J.)

Raj Kumar Sinha & Ors vs The State Of Bihar & Ors on 5 July, 2011

Patna High Court - Orders

Date Amount -------------------------------------------- 2-8-1997 1,00,000.00 16-8-1997 1,00,000.00 4-10-1997 1,00,000.00 17-10-1997 1,00,000.00 6-11-1997 1,00,000.00 24-11-1997 1,00,000.00 31-3-1998 4,33,333.00 31-3-1998 4,33,333.00 31-3-1998 4,33,333.00 31-3-1999 2,00,001.00 -------------------------------------------- Total 21,00,000.00 -------------------------------------------- ORDER Goda Raghuram, J. 1. Heard Mr. Y. Vivekananda appearing for Mr. P. Kamalakar, learned Counsel for the petitioner and Mr. J. Pardhasarathi, learned Standing Counsel for the A.P. State Financial Corporation. 2. The petitioner claims that the action of the Andhra Pradesh State Finance Corporation ('the Corporation') in calling for sealed tender-cum-bid for the sale of the land and building of the 1st petitioner and the collateral security of land in an extent of 416.66 sq. yds. in Plot No. 10, Subhash Nagar, Nizamabad, belonging to the 2nd petitioner, shown at SI. Nos. 12 and 24 of the notification dated 20-7-2006, published in the English daily news paper 'The Hindu', is illegal, void and seeks a direction to the respondents to act as per the judgment in W.A. No. 1717 of 2004, dated 8-11-2004. 3. This is the third bout of litigation by and on behalf of the 1st petitioner with a view to thwart the efforts of the Corporation to recover its dues. 4. The 1st petitioner applied for and was sanctioned a term loan of Rs. 37.4 lakhs in March 1990 and an additional term loan of Rs. 44.70 lakhs in February 1992. The loans were sanctioned by proceedings dated 6-3-1990 and 25-2-1992 respectively. The petitioner drew Rs. 76.45 lakhs till November 1994. The petitioner defaulted in the repayment of the principal as well as the interest instalments. Up to 31-3-1999 only Rs. 21 lakhs was paid as under: -------------------------------------------- 5. The petitioner had become a defaulter by 1997 itself. Responding to telegraphic demands by the Corporation on 6-12-1997 and 11-12-1997 for clearing the arrears of the loan and interest instalments, the petitioner sought a One Time Settlement (OTS). The Board of the Corporation at a resolution dated 2-12-1998, agreed on terms. By the letter dated 9-12-1998, the Corporation informed the 1st petitioner that it was agreeable to close the loan account on payment of Rs. 1,69,93,000/-. The 1st petitioner represented that it could pay only Rs. 90 lakhs. Eventually and after negotiations, at the meeting held on 8-2-2002 the Board of the Corporation determined OTS at Rs. 93 lakhs. The Corporation did not agree to give credit for the Rs. 21 lakhs paid during 2-8-1997 to 31 -3-1999. The amount of Rs. 93 lakhs agreed towards the OTS was de hors the amount of Rs. 21 lakhs already paid by 31-3-1999. As the petitioner failed to avail this OTS, the respondent-Corporation demanded payment of Rs. 2,73,76,537/-. 6. Assailing the above demand the 1st petitioner filed W.P. No. 21863 of 2000. This Court by the order dated 7-12-2000 disposed of this writ petition with a direction that the petitioner should pay Rs. 15 lakhs on or before 31 -1 -2001 and may approach the respondents for consideration afresh. The petitioner deposited Rs. 15 lakhs on 30-1-2001. It requires to be noticed that before the above deposit of Rs 15 lakhs (on 31 -1 -2001), the petitioner had deposited Rs. 1 lakh, Rs. 2 lakhs, Rs. 8 lakhs and Rs. 8,55,000 on 31-3-1997, 31-3-1997, 31-3-2000 and 31-3-2000, respectively. 7. The Corporation issued another notice to the petitioner demanding payment of the dues, on 31-1-2001. Aggrieved thereby the 1st petitioner filed W.P. No. 2681 of 2001. This Court granted interim stay and directed payment of Rs. 40.45 lakhs on or before 2-3-2001. There was a default by the stipulated date and extension was sought twice and granted one up to 11-4-2001 and again up to 30-6-2001. On 29-6-2001 the petitioner paid Rs. 40 lakhs. By the judgment dated 21-9-2004, W.P. No. 2681 of 2001 was dismissed. This Court held that the petitioner did not abide by the terms of the OTS and had made payments only in terms of the interim order. 8. Aggrieved by the dismissal of the writ petition, the 1st petitioner filed W.A. No. 1717 of 2004. By the judgment dated 8-11-2004 the writ appeal was dismissed directing that on the appellant making a representation within ten days the Corporation should take an appropriate decision on the representation within one month thereafter and communicate the same giving a reasonable opportunity to the appellant to start making payments and till then no coercive steps be taken by the corporation. In its judgment (in the appeal) this Court clearly rejected the 1st petitioner's claim that all the amounts paid by the 1st petitioner up to 8-2-2000 were not taken account of by the Corporation. The Court held that all the amounts paid upto 8-2-2000 were duly adjusted; no amount remains to be adjusted till that date; that the 1st petitioner was liable to deposit Rs. 32.55 lakhs on or before 31-3-2000 towards 35% of the OTS but had deposited only Rs. 16.55 lakhs on 31 -3-2000; and that there was default even in payment of the five bi-monthly instalments of Rs. 12.09 lakhs. In the circumstances, while declining to interfere in appeal, the appellate Bench permitted the appellant (1st petitioner herein), to make a fresh representation including for waiver of interest. 9. On 18-11-2004 the 1st petitioner submitted a representation to the Corporation reiterating that the amount of Rs. 21 lakhs paid (earlier to the OTS) should also be taken into consideration in adjusting the OTS due of Rs. 93 lakhs. In this representation while stating that no amount was due and at best for the delayed payment made during June 2000 to June 2001 the 1st petitioner might be liable to payment of interest, it was requested that for payment of any amount determined as due, benefit of instalments be granted. 10. According to the petitioner the Corporation did not take a decision and communicate the same to the petitioner within the time stipulated in the judgment in W.A. No. 1717 of 2004. According to the respondents by the letter dated 13-12-2004 the Corporation had responded to the 1st petitioner's representation dated 18-11 -2004. 11. In support of the Corporation's claim that the decision contained in its letter dated 13-12-2004 was communicated to the 1st petitioner, the Corporation has filed before this Court a Xerox copy of its dispatch register, which shows that the letter (dated 13-12-2004) was delivered to the 1st petitioner on 15-12-2004 and was acknowledged under the signature of the Managing Director of the 1st petitioner. 12. In its letter dated 13-12-2004 after setting out the chronology of events and chronicling the persistent defaults in repayment, the Corporation stated that as the OTS offered by the Corporation on 18-2-2000 was not complied with, the OTS stood cancelled and consequently the total amount due was Rs. 5,15,25,000; that for recovery of the outstanding amount action under Section 29 of The State Financial Corporations Act, 1951 (Central Act 63 of 1951) ['the Act'] was initiated and the assets of the 1st petitioner were seized on 26-10-2004; that as a special case a revived OTS package is being offered, in effect reviving the earlier OTS package (which was cancelled); and that the 1st petitioner is liable to pay the balance OTS crystallized liability of Rs. 21 lakhs together with further interest (amounting to Rs. 56.84 lakhs in all), aggregating to Rs. 77.84 lakhs. The Corporation stipulated that Rs. 39 lakhs representing 50% of the amount should be paid on or before 15-1 -2005 and the balance of Rs. 38.84 lakhs on or before 15-2-2005. The 1st petitioner was also intimated that on default by the petitioner in repayment of the amounts stipulated, the OTS package would be cancelled and the Corporation would take appropriate action to recover the entire out standings in the loan account on 31 -1 -2004, amounting to Rs. 5,15,25,000/-. Apart from the copy of the dispatch register maintained by the Nizamabad Branch of the Corporation (filed by the Corporation in WVMP No. 1930 of 2006), the Corporation has annexed a copy of the outward register which discloses communication by registered post and under certificate of posting, of the letter dated 30-12-2004 to the 1st petitioner as well as to the Corporation's Nizamabad branch. 13. The 1S| petitioner has filed a counter affidavit dated 18-1-2007. This affidavit is in response to WVMP No. 28705 of 2006 (seeking leave of this Court to file additional documents). In this counter the 1st petitioner states that no reasons are disclosed as to why the documents now filed by the-Corporation were not filed earlier. The 1st petitioner also asserts that no documents were filed by the Corporation evidencing service of the letter dated 13-12-2004. 14. It requires to be noticed that the petitioners do not impeach the assertion by the Corporation that the letter dated 13-12-2004 was communicated to the 1st petitioner on 15-12-2004 as evidenced by the dispatch register. The 1st petitioner does not also deny his signature against the entry in the dispatch register (dated 15-12-2004). 15. In the circumstances above, this Court is satisfied that the Corporation has not only taken a decision as directed in W.A. No. 1717 of 2004 and within the stipulated time, but has also communicated its decision (contained in the letter dt. 13-12-2004) to the 1st petitioner on 15-12-2004. 16. That the petitioners failed to comply with the terms of the revived OTS, as intimated in the Corporation's letter dated 13-12-2004 is not in dispute. There was no payment of any amount either as stipulated in the revived OTS nor at all. There is thus, chronic and clear default in the payment of dues by the petitioners and in complying with the terms of even the revised OTS. 17. It is legitimate to conclude that the Corporation is relieved of its obligation under the OTS offered by its letter dated 13-12-2004, in view of the default incompliance of the terms of that OTS, by the petitioners. 18. On 25-7-2006 the Corporation addressed the petitioners that there was a persistent default in payment of dues; that the hotel was seized under Section 29 of the Act; and consequently the primary and the collateral security properties were advertised for sale (in The Hindu' on 20-7-2006 and 'Andhra Jyothi' on 19-7-2006), the petitioners were informed that they may bring sponsors or bidders before the finalisation of the sale by the corporation pursuant to the advertisement and if bids are brought they would be examined along with other bids and offers. The petitioners were also informed that in case the sale proceeds are insufficient to cover the total outstanding amount, the Corporation would proceed against the primary security and also invoke the provisions of the A.P. Revenue Recovery Act against the promoters/guarantors for recovering the balance amounts. 19. In support of the relief sought in this writ petition, the contention on behalf of the petitioners is two fold: (A) That as no decision was taken and communicated by the Corporation as directed in the judgment dated 8-11 -2004 in W.A. No. 1717 of 2004, the Corporation is disentitled to pursue coercive steps by way of bringing the properties to sale; and (B) That the property offered as collateral security by the 2nd petitioner towards the loan availed by the 1st petitioner is not liable to be proceeded against under Section 29 of the Act. 20. In so far as the first facet of the challenge is concerned, as the first petitioner is a persistent defaulter and as the Corporation had not only taken a decision within the time stipulated in the judgment in W.A. No. 1717 of 2004 but has also communicated the decision by its letter dated 13-12-2004 to the 1st petitioner on 15-12-2004 (as evidenced by the signature of the 1st petitioner in the dispatch register), the Corporation was well within its rights to proceed against the properties under Section 29 of the Act. There is no violation of the direction in the judgment dated 8-11 -2004 in W.A. No. 1717 of 2004. 21. The 2nd contention is that the provisions of Section 29 of the Act, on terms and on a true and fair construction, do not enable either seizure or sale of assets offered as collateral security by third parties in respect of the loan availed by an industrial concern from the financial corporation. According to Mr. Vivekananda, the provisions of Section 29 are available only for taking possession or management and for the lease or sale of the assets of the industrial concern (which has availed the loan from the financial corporation and has defaulted) towards recovery of such loan. Reliance for this contention is placed on the judgment of a Division Bench of Karnataka High Court in N. Narasimhaiah and etc. v. Karnataka State Financial Corporation and Ors. AIR 2004 Karnataka 46 (D.B.). 22. It requires to be noticed that such a plea (as to the inapplicability of recovery process under Section 29 of the Act to third party collateral security offered) has not been raised in the writ petition. However, since this plea is a wholly legal plea and turns upon the construction and interpretation of Section 29 of the Act, proceed to consider this claim. 23. By the sale notification dated 20-7-2006 the Corporation notified for sale inter alia the property of the 2nd petitioner in an extent of 416.66 sq. yds. in Plot No. 10, Subhashnagar, Nizamabad, which was secured in favour of the Corporation by way of collateral security for the loan obtained by the 1st petitioner. 24. The petitioners' contention on this issue is that the financial corporation cannot lease or sell a property secured by a surety under Section 29 of the Act but may enforce the liability of the surety or proceed against any property secured by the surety only under Section 31 of the Act. 25. Sub-sections (1), (2) and (4) of Section 29 and Section 31 are relevant. These provisions read as under: 29. Rights of Financial Corporation in case of default:- (1) Where any industrial concern, which is under a liability to the Financial Corporation under an agreement, makes any default in repayment of any loan or advance or any instalment thereof or in meeting its obligations in relation to any guarantee given by the Corporation or otherwise fails to comply with the terms of its agreement with the Financial Corporation, the Financial Corporation shall have the right to take over the management or possession or both of the industrial concern, as well as the right to transfer by way of the industrial concern, as well as the right to transfer by way of lease or sale and realize the property pledged, mortgaged, hypothecated or assigned to the Financial Corporation. (2) Any transfer of property made by the Financial Corporation, in exercise of its powers under Sub-section (1), shall vest in the transferee all rights in or to the property transferred as if the transfer had been made by the owner of the property. (3)... (4) Where any action has been taken against an industrial concern under the provisions of Sub-section (1), all costs, charges and expenses which in the opinion of the Financial Corporation have been properly incurred by it as incidental thereto shall be recoverable from the industrial concern and the money which is received by it shall, in the absence of any contract to the contrary, be held by it in trust to be applied firstly, in payment of such costs, charges and expenses and, secondly, in discharge of the debt due to the Financial Corporation, and the residue of the money so received shall be paid to the person entitled thereto. (5)... 31. Special provisions for enforcement of claims by Financial Corporations: (1) Where an industrial concern, in breach of any agreement, makes any default in repayment of any loan or advance or any instalment thereof or in meeting its obligations in relation to any guarantee given by the Corporation or other wise fails to comply wit the terms of its agreement with the Financial Corporation or where the Financial Corporation requires an industrial concern to make immediate repayment of any loan or advance under Section 30 and the industrial concern fails to make such repayment, then without prejudice to the provisions of Section 29 of this Act and of Section 69 of the Transfer of Property Act, 1881 (4 of 1882) any officer of the Financial Corporation, generally or specially authorized by the Board in this behalf, may apply to the District Judge within the limits of whose jurisdiction the industrial concern carries on the whole or a substantial part of its business for one or more of the following reliefs, namely: (a) for an order for the sale of the property pledged, mortgaged, hypothecated or assigned to the Financial Corporation as security for the loan or advance; or (aa) for enforcing the liability of any surety; or (b) for transferring the management of the industrial concern to the Financial Corporation; or (c) for an ad interim injunction restraining the industrial concern from transferring removing its machinery or plant or equipment from the premises of the industrial concern without the permission of the Board, where such removal is apprehended. (2) An application under Sub-section (1) shall State the nature and extent of the liability of the industrial concern to the Financial Corporation, the ground on which it is made and such other particulars as may be prescribed. 26. By Act 43 of 1985 Clause (aa) was inserted in Section 31(1) of the Act. Prior to this amendment the relevant legislative position was that where an industrial concern commits a breach or default of the nature specified in Sub-section (1) of Section 31, then without prejudice to the provisions of Section 29 of the Act and of Section 69 of the Transfer of Property Act, 1882, any officer of the Financial Corporation, generally or specially authorized by the Board, could apply to the District Judge having jurisdiction, for any of the specified reliefs. Clause (a) of Section 31(1) enables the Financial Corporation to apply for an order for the sale of the property pledged, mortgaged, hypothecated or assigned to the Financial Corporation as security for loan or advance. 27. Interpreting the pre-amended Section 31 (containing only Clause (a)] a Full Bench of Allahabad High Court in Munnalal Gupta v. U.P. Financial Corporation AIR 1975 All. 416 (F.B.) had taken the view that the speedy remedy provided in Section 31 of the Act is not available against the surety, it is available only against the principal borrower. 28. However, in Thresiamma Varghese v. Kerala State Financial Corporation AIR 1986 Kerala 222, the Kerala High Court disagreeing with the view taken by the Allahabad High Court in Munnalal Gupta AIR 1975 All. 416 (F.B.) held that there was no restriction in the provisions of Section 31 of the Act which disables an application by a financial corporation to the District Judge to proceed against the assets secured in its favour by a surety. It held that there was nothing to indicate that while the legislature wanted to enable the financial corporation to have a summary and expeditious remedy against the industrial concern, intended that in order to recover the amount due from the surety for the property pledged, mortgaged, hypothecated or assigned, the financial corporation should be driven to the dilatory process of a civil suit. 29. To put the interpretative conflict beyond disputation, the Legislature intervened and Clause (aa) was inserted in Section 31 by amended Act 43 of 1985. Though the scope and reach of the speedy remedy provided by Section 31 of the Act (to order for the sale of the property pledged, mortgaged, hypothecated or assigned to a financial corporation by a surety) is now beyond controversy [in view of insertion of Clause (aa)], in my considered view the interpretation placed on Clause (a) of Section 31, by the decision in Thresiamma (3 supra) is preferable to the contrary view in Munnalal Gupta (2 supra). 30. Munnalal Gupta (2 supra) proceeded on a restrictive interpretation of the provisions of Section 31 which does not advance the legislative purposes of Section 31. With respect, the provisions of Clause (a) of Section 31 could not have been restrictively construed to exclude the application (of the speedy remedy provided) to a property pledged, mortgaged, hypothecated, or assigned by a surety. The Thresiamma interpretation advances the legislative purposes. 31. On the scope of Section 29 (with regard to its application to the property pledged, mortgaged, hypothecated or assigned by a surety) there is a conflict of authorities. In K.T. Sulochana Nair v. Managing Director, Orissa State Financial Corporation AIR 1992 Orissa 157 and Jasbir Kaur v. Punjab State Industrial Development Corporation Limited AIR 2002 P & H 74 as well as in Thresiamma (3 supra), High Courts have held that the reach of the provisions of Section 29 extends to the property of a surety. A Division Bench of the Karnataka High Court in Narasimhaiah (1 supra) held to the contrary. All these decisions are persuasive authorities for this Court. Which is the appropriate view and which is the preferred meaning of the provisions of Section 29 of the Act, will therefore have to be considered. 32. In Narasimhaiah (1 supra) a Division Bench of the Karnataka High Court disagreed with the interpretation placed on the provisions of Section 29 of the Act by the Orissa, Punjab and Haryana and Kerala High Courts in Sulochana Nair, Jasbir Kaur and Thresiamma (4, 5 and 3 supra). Several reasons were recorded by the Karnataka Division Bench for the conclusion that Section 29 does not enable a Financial Corporation to transfer by way of lease or sale the property pledged, mortgaged, hypothecated or assigned to it by a surety. Firstly, that Section 29 permits take over of the management or possession or both only of the industrial concern and therefore the entirety of the provisions of Section 29(1) must be construed as in relation to an industrial concern and its property and assets (Para 5). Secondly, that Section 31 [before the insertion of Clause (aa)] did not enable recourse to the speedy remedy under Section 31 in respect of the property pledged, mortgaged, hypothecated or assigned, by a surety (agreeing with Munnalal Gupta [(2 supra)]; and since the remedy under Section 31 was extended for enforcing the liability of a surety, by the legislative intervention by Act 43 of 1985 (by the insertion of Clause (aa) in Section 31), the difference in the phraseology of Section 31 (as so amended) with that of Section 29 must guide the construction of provisions of Section 29 and compel the conclusion that Section 29 was inapplicable to the property of a surety. 33. Narasimhaiah (1 supra) interpreted the clause "as well as" in Section 29 as indicating that the right conferred by the words succeeding the clause, is in regard to the subject matter of the words preceding it (Para 21 of 1 supra). On this construction it was held that the right to transfer by way of lease or sale and realize the property secured in favour of the financial corporation is only with reference to the property, the management and/or possession of which has been taken over by the corporation. 34. Even on textual analysis (as considered later in the judgment) the conclusion is not, with respect, correct. Section 29(1) enacts two sets of rights to a financial corporation. One facet confers the right to take over the management or possession or both of the industrial concern; the second additionally enables the transfer by way of lease or sale for realizing the property pledged, mortgaged, hypothecated or assigned to the financial corporation. On a grammatical construction the phrase 'as well as' refers to the other set of rights endowed to the financial corporation. 35. If the Legislature had intended that the financial corporation's right to transfer by way of lease or sale must be confined to the property or assets of the industrial concern, the appropriate phraseology would have been otherwise and the expression 'the industrial concern' would have occurred at the end of the sentence, qualifying the locii of both sets of the right conferred. 36. It requires to be noticed that de hors the amendment of Section 31 [by Act 43/85 and the insertion of Clause (aa)], Thresiamma (3 supra) had held that the remedy under Section 31 is available even as against the property of a surety. There was therefore even on the unamended provisions of Section 31 a conflict of judicial opinion as to the applicability of Section 31 to the property of the surety, with Munnalal Gupta (2 supra) holding that the section was inapplicable while Thresiamma (3 supra) holding that Section 31 was applicable even to the property of a surety. 37. To resolve the ambiguity and the possibility of a restrictive judicial construction, the Legislature intervened with Act 43 of 1985. 38. In the considered view of this Court the interpretation on the provisions of Section 31 by Thresiamma (3 supra) is, with respect, the correct interpretation. The insertion of Clause (aa) in Section 31 is a clarificatory amendatory exercise making explicit what was always implicit in the provisions of Clause (a) of Section 31. Clause (a) of Section 31(1) enables the District Judge on an application as specified in Section 31(1), to pass an order for the sale of the property pledged, mortgaged, hypothecated or assigned. On a true and fair construction, consistent with the legislative purposes of the Act, Clause (a) confers jurisdiction, power and authority on the District Judge under Section 31(1) to order for the sale of the property of the industrial concern and of a surety as well. Therefore the Thresiamma (3 supra) interpretation accords with the grammatical meaning - on construction as a piece of English prose according to the rules and usages of grammar, syntax and punctuation of the accepted linguistic cannons of construction. 39. On the above analysis the conclusion is compelling that the insertion of Clause (aa) in Section 31 (a) is a clarificatory legislative exercise. If that be so, the provisions of Clause (aa) would not guide the interpretation of Section 29, to legitimize the conclusion that a Financial Corporation may only transfer by way of lease or sale (and realize the property pledged, mortgaged, hypothecated or assigned to it), the property of the industrial concern but not the property of a surety. 40. Narasimhaiah(\ supra) reasoned that since the power to take over possession or management or both is only in respect of the industrial concern, the power to transfer by way of lease or sale must also be construed as restricted to the property of the industrial concern. This reason does not commend acceptance by this Court. 41. The scheme of the Act, the provisions in Chapter-III, in particular Section 25 are clearly indicative of the purposes and functions of a financial corporation which include guaranteeing loans raised by industrial concerns; guaranteeing deferred payments due from an industrial concern; underwriting of the issue of stock, shares, bonds or debentures by industrial concerns and other specified commercial activities and to extend support to the commercial activities of an industrial concern as specified. 42. In the very nature of the evolution and exponential growth of commercial transactions, surety or collateral security is integral to industrial and commercial growth and not merely by another industrial concern. Security may be provided by a private individual too or a body which does not answer the description of industrial concern (as the expression is defined in the Act). Where an individual pledges, mortgages, hypothecates or assigns his property to the financial corporation in respect of a loan or advance obtained by an industrial concern, Section 29 does not enable the corporation to take over the management or possession of an individual. The provision is so designed since the Legislature was conscious and aware of the established, evolving and growing commercial practice, of private individuals too offering surety for loans or advances obtained by industrial concerns or establishments. The Legislature has consciously restricted the power of a financial corporation to take over the management or possession or both, of the industrial concern. Such legislative intent analysis is compelling and at any rate persuasive. The mere fact that Section 29 enables the financial corporation to take over the management or the possession only of the industrial concern, does not therefore compel the interpretation that the power vouchsafed to the financial corporation to transfer by way of lease or sale and realize the property pledged, mortgaged, hypothecated or assigned is confined to the property of the industrial concern. 43. Section 29(1) has three principal aspects. The first aspect delineates the parties governed by the provision. Thus, Section 29 is applicable in the context of a liability owed by an "industrial concern" to a "financial corporation', expressions defined in Clauses (c) and (b) in Section 2, respectively. The second aspect of Section 29 defines the circumstances in which the rights of the Financial Corporation under the provision, are applicable. According to this aspect of Section 29, the relevant circumstance (s) is the existence of a liability of the industrial concern to the financial corporation under an agreement; the arisal of a default in the repayment of any loan or advance or any instalment thereof or in meeting any obligations in relation to any guarantee given by the Corporation; or other failure to comply with the terms of the industrial concern's agreement with the financial corporation. The third aspect specifies the rights of a financial Corporation on the occurrence of default. 44. The rights conferred under Section 29 to a Financial Corporation, in the context of the provision are of wide amplitude. The rights conferred on the Financial Corporation (in case of default) are generically dual in character. Each of these set of rights are also complex. Under this clause of Section 29(1), the Financial Corporation has a right (i) to take over the management or possession or both of the industrial concern; (ii) the right to transfer by way of lease or sale and realise the property pledged, mortgaged, hypothecated or assigned to the Financial Corporation. There is no explicit language in Section 29(1) or any of the other provisions of the Act either, indicating that only the property or assets of the industrial concern could be mortgaged or hypothecated. Absence of such a restriction is understandable and appears a well advised legislative scheme. To insist that every industrial concern must have sufficient assets of its own before it may approach the financial Corporation for accommodation is to stifle entrepreneurial growth. That would adversely affect public interest, as economic growth of the Republic by private initiative is a key component of contemporaneous global economic synergy. 45. On an analysis of the drafting architecture of Section 29(1) and on a true and fair construction of its provisions, the conclusion is irresistible that while the right to take over the management or possession or both is only in relation to the industrial concern; the right to transfer by way of lease or sale is in respect of every property pledged, mortgaged, hypothecated, or assigned to the Financial Corporation including the property or assets of a surety. 46. The construction to the contrary propounded by the petitioner appears impermissible either on empirical analysis of the text or on grammatical or even purposive construction of the provisions of Section 29(1), read either in isolation or in conjunction with other provisions of Section 29 or the other provisions of the Act. No provision of the Act either expressly or by compelling implication signals the intent that every industrial concern must have adequate assets of its own before it can approach the Financial Corporation for accommodation. Such as an assumption is also inconsistent with the market and commercial realities of contemporaneous society. 47. The legislative dynamics of Section 25 equally negate an assumption that an industrial concern must have adequate assets of its own. As originally enacted, Section 25(2) prohibited accommodation being given by a Financial Corporation under Clauses (a) and (e) of Section 25(1) unless, it is sufficiently secured by a pledge, mortgage, hypothecation, or assignment of Government or other securities, stocks, shares or secured debentures, bullion, movable or immovable property or other tangible assets, in the manner prescribed by Regulations. By the State Financial Corporations (Amendment) Act, 1956 Sub-section (2) of Section 25 was amended. As per this amendment a Financial Corporation could also grant accommodation if the repayment of the principal and payment of interest is guaranteed by the State Government, a Scheduled bank or a State Co-operative Bank. The section was further amended by the Amendment Act, 1962. This amendment though did not change substantially the character or the manner of the security required, was necessitated in the context of new types of businesses that could be carried on and transacted by the Financial Corporation, in the context of the other amendments incorporated by the 1962 Amendment. There was a 3rd Amendment (insofar as Section 25(2) is concerned). In 1985 Sub-section (2) was omitted and as a consequence the normative basis of the Financial Corporations' activities shifted from a security oriented approach to a project-oriented approach. 48. From the evolutionary history of Section 25, it is apparent that consistent with commercial realities, an industrial concern could approach a Financial Corporation for accommodation even when it did not have adequate assets of its own, provided it could make available sufficient security or guarantee for the repayment of the principal and the payment of interest. 49. To support the petitioner's contention in this behalf, Section 29(1), to the extent relevant, should read: ...the Financial Corporation shall have the right to take over the management or possession or both, as well as the right to transfer by way of lease or sale and realize the property pledged, mortgaged, hypothecated or assigned to the Financial Corporation, by the industrial concern." Such is not the legislative text. 50. Another contention canvassed on behalf of the petitioner in respect of the contention on this aspect is that since under Section 29(1) the financial corporation is not empowered to take over the management or possession (or both) of a third party other than the industrial concern, conferment of a mere right to transfer by way of lease or sale the property of a surety would tantamount to empowering the transfer of an imperfect right, sans possession. The purchaser or the lessee, as the case may be, of the property of a surety (pledged, mortgaged, hypothecated or assigned to the financial corporation) on a transfer by way of sale or lease would again have to pursue appropriate (and dilatory) remedies for obtaining possession on such transfer. This would debilitate the core legislative purpose of providing a speedy remedy. For this reason also the right to transfer by way of lease or sale must be construed as restricted to the property or asset of the industrial concern; excluding the property of a surety, is contention. 51. Section 29(2) enjoins that any transfer of property made by the financial corporation in exercise of its powers under Sub-section (1), shall vest in the transferee all rights in or to the property transferred as if the transfer had been made by the owner of the property. In the light of this legislative prescription the transfer made by a financial corporation, exercising power under Section 29(1), by way of lease or sale of a property, including the property of a surety would transfer to the lessee or purchaser as the case may be, all the rights of the owner of the property as if the transfer were made by the owner. There would thus be a pro tanto divestiture of the rights of the owner and vestiture in favour of the transferee, on the financial corporation exercising its rights under Section 29(1). In the case of a transfer of the property of a surety, in case of resistance by the surety (owner) to deliver possession of the property, legal proceedings to secure the coercive powers of the State could be availed of to obtain possession. Merely on this ground it cannot be gainfully contended that the right conferred on the financial corporation to transfer (by way of lease or sale) is confined to the property of the industrial concern. It is left to the legislative judgment as to how comprehensive even a speedy remedy ought to be. But wherever a speedy remedy is provided and in an exclusive legislative architecture, the statutory intent and thrust ought not to be derailed by an artificial construction that hampers or retards the clear legislative intent and purpose. Do not discard a baby with the tepid bathwater, is a sound principle even in statutory construction. 52. It therefore does not appear permissible to narrowly construe the provisions of Section 29(1) to restrict the rights of the Financial Corporation (to lease or sell) only in relation to assets belonging to the industrial concern. Such a narrow construction, in the considered view of this Court does violence to the legislative purposes as well. 53. The learned Counsel for the petitioner also contended that the auction held pursuant to the impugned sale notification dated 20-2-2006 was not preceded by due and adequate publicity and notice so as to fetch the best possible and competitive market price and the process should therefore be invalidated. Reliance for this contention is placed on the decisions of the Supreme Court in Gajraj Jain v. State of Bihar and Ors. (2004) 7 SCC 151 and S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors. (2004) 7 SCC 166. It is contended that in both the decisions the principle is reiterated that in a sale under Section 29(1) of the Act even where the financial corporation is the first charge-holder, it should so act as to obtain the best possible price for the mortgaged asset and the best possible price must, in the context, mean the fair market value. In S.J.S. Business Enterprises (P) Ltd. (2004) 7 SCC 166 the Supreme Court pointed out that Section 29 being a statutory power vested in a State Financial Corporation under the Act must be exercised bona fide. In the context, adequate publicity means to ensure maximum participation of bidders and for that a fair and practical period of time must be given to the purchasers to effectively participate in the sale. Unless the subject matter of the sale requires immediate disposal, an opportunity must be given to the possible purchaser who is required to purchase the property on "as-is-where-is basis" to inspect the property and make a considered offer. This principle is reiterated in Karnataka State Industrial Investment & Development Corporation Ltd. v. Cavalet India Ltd. and Ors. (2005) 4 SCC 456. 54. It requires to be noticed that in Cavalet India Ltd. (2005) 4 SCC 456 the Supreme Court had pointed out that the relationship between the financial corporation and the borrower is that of a creditor and debtor, a feature that cannot be lost sight of. The financial corporation would be well within its rights and enjoined by public policy considerations as an instrumentality of the State to recover the amounts due so that fresh loans could be given. Interfering with such right to speedy recovery of the dues owed to it by an industrial concern on jejune grounds and contrived doubts would be to subvert the legislative purposes, debilitate the economic health and derail public purposes charter of a State Financial Corporation. In any event there is no plea in the writ petition that the sale notification was not attended by due publicity with a view to secure the best possible price. 55. The respondent-financial corporation in its counter affidavit has specifically pleaded that after giving sufficient and in fact unmerited latitude to the first petitioner to repay the dues by successive one time settlements and accommodation, it was eventually decided in a Board resolution dated 21-9-2006 that the land given as collateral security and the building, furniture and fixtures of the first petitioner should be sold after calling the two tenderers for negotiation. 56. There is no material, by way of pleadings or otherwise to legitimize a conclusion that the auction and sale of the secured assets of the petitioner by the respondent-State Financial Corporation is vitiated by irrationality, arbitrariness or imprudent conduct. This plea orally urged is without a factual basis and is therefore rejected. 57. Sri Y. Vivekananda, the learned Counsel for the petitioner (a young member of the Bar, of about 5 years standing) has presented the case on behalf of the petitioners with assiduous and thorough preparation. He has not only cited several relevant precedents on the issues arising in this case but has also made an efficient and clinical analysis of the relevant provisions of the State Financial Corporations Act, 1951 with reference to empirical principles of law and statutory construction. His effort deserves appreciation. 58. There are no merits. The writ petition is dismissed. The interim order dated 25-9-2006 stands dissolved. There shall be no order as to costs.

Author: G Raghuram

Sri Devi Hotels Private Limited, ... vs A.P. State Financial ... on 7 February, 2007

Andhra High Court

Gujarat High Court Case Information System Print CR.A/2016/2006 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 2016 of 2006 ========================================= PRASHANT DAULATBHAI MODI - Appellant(s) Versus RAJU HARIBHAI KOTHARI & 1 - Opponent(s) ========================================= Appearance : MR RA MISHRA for Appellant(s) : 1,(MR TS NANAVATI) for Appellant(s) : 1, MR PRABHAKAR UPADYAY for Opponent(s) : 1, PUBLIC PROSECUTOR for Opponent(s) : 2, ========================================= CORAM : HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 02/02/2011 ORAL ORDER Board shows that bailable warrant is not executed upon the accused due to short date. Hence, await for service of bailable warrant. The matter is adjourned to 22nd February 2011. (Z. K. Saiyed, J) Anup     Top

Author: Z.K.Saiyed,&Nbsp;

Prashant vs Unknown on 2 February, 2011

Gujarat High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM Tr.P(C).No. 214 of 2009() 1. SREE REKHA.R.I. AGED 26 YEARS, ... Petitioner Vs 1. T.S.AJITH KUMAR, AGED 35 YEARS ... Respondent For Petitioner :SRI.JOHNSON GOMEZ For Respondent :SRI.N.KRISHNANKUTTY PILLAI The Hon'ble MR. Justice THOMAS P.JOSEPH Dated :23/09/2010 O R D E R THOMAS P JOSEPH, J. ---------------------------------------- Tr.P.C.No.214 of 2009 --------------------------------------- Dated this 23rd day of September, 2010 ORDER This petition is filed by the wife seeking transfer of O.P (HMA).No.1579 of 2008 from Family Court, Nedumangad to Family Court, Kollam. It is stated that petitioner is residing at Pattathanam, in Kollam district, has a 1= year old child and that she finds it difficult to travel all the distance from her place of residence to Nedumangad. It is also stated that petitioner has filed O.P.No.415 of 2008 against respondent/husband in Family Court, Kollam which is pending consideration of that court. In the circumstance, request for transfer. 2. Petition is opposed by the respondent who contend that petitioner is residing at Madavoor which is only 30 kms away from Family Court, Nedumangad. 3. It is seen from the copy of O.P(HMA).No.1579 of 2008 filed by respondent before the Family Court, Nedumangad that address of petitioner is given as residing at Pattathanam, in Kollam district. As such, I do not find reason to disbelieve the statement that petitioner is residing in that address. Learned counsel for petitioner points out that Family Court, Kollam is  Tr.P.C.No.214 of 2009 : 2 : about 4km from her place of residence while it is 30km from Nedumangad. O.P.No.415 of 2008 is now pending consideration in the Family Court, Kollam. The Supreme Court in Sumitha Singh Vs. Sanjay Kumar & Another (AIR 2002 SC 396) and Arti Rani Lrs. Pinki Devi and Another Vs. Darmendra Kumar Gupta (2008(9) SCC 353) has stated that while considering request for transfer in matrimonial proceedings convenience of the wife has to be looked into. I am inclined to think that comparative hardship is more on petitioner if transfer requested for is not allowed than the hardship respondent may have to suffer if transfer is allowed. Hence I am inclined to allow the petition. Resultantly this petition is allowed in the following lines: (i) O.P(HMA).No.1579 of 2008 pending in Family Court, Nedumangad is withdrawn from the court and made over to Family court, Kollam. (ii) The transferor court while transmitting records of the case to the transferee court shall fix date of appearance of parties in the transferee court with due intimation to counsel on both sides. (THOMAS P JOSEPH, JUDGE) Sbna/-

Sree Rekha.R.I. Aged 26 Years vs T.S.Ajith Kumar on 23 September, 2010

Kerala High Court

Court No. - 29 Case :- BAIL No. - 5890 of 2010 Petitioner :- Sabban @ Aftab Respondent :- The State Of U.P. Petitioner Counsel :- Firoz Ahmad Khan Respondent Counsel :- Govt.Advocate Hon'ble Ashwani Kumar Singh,J. Heard learned counsel for the accused applicant and learned counsel for the State. Perused the F.I.R., medical report and other relevant papers filed in support of the bail application. Submission of the learned counsel for the accused applicant is that, as alleged, accused applicant and co-accused Guddu @ Imran took Kumari Sinduja and Kumari Shristi Lucknow and then to Kanpur, as alleged, they committed rape. According to medical report no definite opinion regarding rape could be given and the age of prosecutrix Kumari Sinduja was about 16 and half years and Kumari Shristi was about 17 years and the other features were suggesting that both the girls used to sexual intercourse. It is also submitted by the learned counsel that in the statement of the prosecutrix recorded under Section 164 Cr.P.C. there is no whisper that both the girls raised any alarm or tried to escape from the clutches of the accused applicant. It is also submitted by the learned counsel that the story set up by the prosecutrix is false and concocted. The accused applicant is in jail since 04.05.2010 as averred in para 18 and has no previous criminal history as averred in para 4 of the bail application. Considering the facts and circumstances of the case, let the accused applicant Sabban @ Aftab be enlarged on bail in Case Crime No. 2163 of 2010, u/S 363, 366, 376 & 506 I.P.C., P.S. Kotwali Nagar, District Faizabad on his furnishing a personal bond and two local and reliable sureties each in the like amount to the satisfaction of the court concerned/Remand Magistrate. Order Date :- 5.8.2010 Kan

Sabban @ Aftab vs The State Of U.P. on 5 August, 2010

Allahabad High Court

ORDER G.A. Brahma Deva, Member (J) 1. Whether the Passenger Lift is eligible to avail Mod-vat credit in terms of Rule 57Q is an issue to be considered herein. 2. It was the contention of the party that the passenger lift in addition to carrying the passengers was also used for handling and shifting the raw materials in the Plant and this plea was specifically taken before the concerned adjudicating authority, but the same was not taken into consideration. 3. On a careful consideration of the facts and circumstances, I do not find any justification to deny the Modvat credit. Accordingly appeal is allowed.

Rajashree Cement vs Commissioner Of Central Excise on 13 May, 2003

Customs, Excise and Gold Tribunal - Bangalore

JUDGMENT Vijender Jain, J. 1. This writ petition under Article 226 of the Constitution of India, inter alia, impugns the order passed by the learned Single Judge on May 7, 1999. Briefly the facts are that the petitioner had issued notice invoking the Arbitration Clause for appointment of Arbitrator on 23rd September, 1997. Arbitrator was not appointed by the respondent. The petitioner was constrained to file a petition under Section 11(6) of the Arbitration & Conciliation Act, 1996 in September, 1998. It seems that after filing of the petition in the High Court under Section 11(6) for appointment of an Arbitrator the respondent appointed the arbitrator on 3rd May, 1999. When the arbitrator was appointed by the respondent, the petitioner filed A.A. No.371/98. The learned Single Judge dismissed the petition in the following words :- "This petition is for the appointment of arbitrator. Learned counsel for the respondent has placed on record a copy of fax letter dated 3.5.99 by which an arbitrator has been appointed. In this view of the matter, this petition has become infructuous and is dismissed accordingly. Parties are directed to appear before the Arbitrator on 21st May, the date already fixed." 2. Learned counsel for the respondent has vehemently contended that after the appointment of the Arbitrator by the respondent, counsel for the petitioner appeared before the Arbitrator and invoked Section 16 of the Arbitration & Conciliation Act, 1996, to challenge the jurisdiction of the Arbitrator and that application is still pending and has not been decided by the Arbitrator. Therefore, on the basis of submission of learned counsel for the respondent, once the petitioner had submitted to the jurisdiction of the arbitrator, the writ petition impugning the order passed on 7.5.1999 is not maintainable. 3. Another limb of the arguments is that the petitioner filed an FAO against the order dated 7.5.1999 and that FAO being not maintainable was dismissed. Learned counsel for the respondent has relied upon State of Orissa and Ors. v. Gokulananda Jena (2003) 6 SCC 465 and Konkan Railway Corpn. Ltd. v. Mehul Construction Company (2000) 7 SCC 201. 4. We have given our careful consideration to the arguments advanced by learned counsel for both the parties. In view of the law laid down in the case of Datar Switchgears Ltd. v. Tata Finance Ltd. and Anr. JT 2000 (Suppl. 2) SC 226 it is no more res integra that the vacancy can be supplied by a party pursuant to the arbitration agreement even after thirty days of the receipt of the notice. However, once a party approaches the Court and files a petition for appointment by the designated authority of the Chief Justice of that Court under Section 11(6) of the Arbitration & Conciliation Act, the right to supply vacancy by the opposite party is extinguished. If that right stood extinguished on filing of the petition under Section 11(6) of the Arbitration & Conciliation Act, in September, 1998 the appointment of an arbitrator on 3rd May, 1999 could not be made, therefore, in our view, the order passed by the learned Single Judge on 7th May, 1999 suffers from patent illegality. Therefore, the submission of the respondent that the petitioner had appeared before the arbitrator and the application of the petitioner raising preliminary objections is pending adjudication which inter alia challenges the jurisdiction of the arbitrator to decide the dispute is of no consequence as from the order reproduced above it was pursuant to the directions passed by the learned Single Judge that the parties were directed to appear before the Arbitrator. The petitioner had no other option but to appear before the arbitrator and after appearing before the arbitrator the petitioner has not submitted to the jurisdiction of the arbitrator, rather has at first opportunity taken the objection that the arbitrator had no jurisdiction to proceed with the matter. 5. In this regard we are following the view which we have taken in Union of India v. R.R. Industries [WP (C) No.8204/2005 decided on 19.5.2005] where we have held that once a party does not supply the vacancy or fails to supply the vacancy before filing of a petition under Section 11(6) of the Arbitration & Conciliation Act, loses the right to supply the vacancy in terms of the arbitration clause. What remains is only the arbitration clause, i.e. the dispute has to be resolved under the mechanism of alternative dispute redressal scheme but no right survives to the respondent to supply the named arbitrator in the arbitration clause. 6. There is no merit in the submission of the learned counsel for the respondent. For the reasons stated above, the petition is allowed. Appointment of the arbitrator appointed by the respondent is quashed. We appoint Justice J.K. Mehra, retired Judge of this Court as arbitrator to adjudicate upon the disputes between the parties. Parties are directed to appear before the arbitrator on 12th July, 2005. Arbitrator will fix his own fees.

Author: V Jain

Delkon (India) Pvt. Ltd. vs The General Manager, Bharat Heavy ... on 24 May, 2005

Delhi High Court

14.02 hrs. Title: Regarding passing of the Indian Medicine Central Council (Amendment) Bill, 2002; the Petroleum (Berar Extension) Repeal Bill, 2002; the Delhi Municipal Corporation (Validation of Electricity Tax) Act and other Laws (Repeal) Bill, 2002; the General Insurance Business (Nationalisation) Amendment Bill, 2002 and the Insurance (Amendment) Bill, 2002 by the Rajya Sabha. SECRETARY-GENERAL: Sir, I have to report the following messages 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 Indian Medicine Central Council (Amendment) Bill, 2002 which has been passed by the Rajya Sabha at its sitting held on the 30th July, 2002.; "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 Petroleum (Berar Extension) Repeal Bill, 2002 which has been passed by the Rajya Sabha at its sitting held on the 30th July, 2002." "In accordance with the provisions of rule 127 of the Rules of Procedure and Conduct of Business in the Rajya Sabha, I am directed to inform the Lok Sabha that the Rajya Sabha at its sitting held on the 30th July, 2002 agreed without any amendment to the Delhi Municipal Corporation (Validation of Electricity Tax) Act and Other Laws (Repeal) Bill, 2002 which was passed by the Lok Sabha at its sitting held on the 18th July, 2002." "In accordance with the provisions of rule 127 of the Rules of Procedure and Conduct of Business in the Rajya Sabha, I am directed to inform the Lok Sabha that the Rajya Sabha at its sitting held on the 30th July, 2002 agreed without any amendment to the General Insurance Business (Nationalisation) Amendment Bill, 2002 which was passed by the Lok Sabha at its sitting held on the 9th May, 2002." "In accordance with the provisions of rule 127 of the Rules of Procedure and Conduct of Business in the Rajya Sabha, I am directed to infrom the Lok Sabha that the Rajya Sabha at its sitting held on the 30th July, 2002 agreed without any amendment to the Insurance (Amendment) Bill, 2002 which was passed by the Lok Sabha at its sitting held on the 15th May, 2002.   2. Sir, I lay on the Table two Bills as passed by Rajya Sabha on the 30th July, 2002. The Indian Medicine Central Council (Amendment) Bill, 2002. The Petroleum (Berar Extension) Repeal Bill, 2002. -------------------MR. SPEAKER: We go to the Calling Attention. Shri H.D. Devegowda to raise the matter. … (Interruptions) SHRI G.M. BANATWALLA (PONNANI): Sir, I have given a notice for Adjournment Motion. … (Interruptions) That notice should prevail over other works. I will only mention the subject and ask for your observation that the Government has taken a stand against the minority educational institutions … (Interruptions) MR. SPEAKER: Shri Banatwalla, please wait for a minute. Let me bring it on record that Shri H.D. Devegowda is not present in the House. Therefore, the Calling Attention notice is dropped. On this issue, there is no other notice. There is only one notice. … (Interruptions) श्री रघुनाथ झा (गोपालगंज): अध्यक्ष महोदय, एक मिनट हमारी बात भी सुन लीजिए।…( व्यवधान) SHRI HANNAN MOLLAH (ULUBERIA): Sir, I have given a notice. … (Interruptions) MR. SPEAKER: I have received three notices of Adjournment Motion. One is from Shri Ramji Lal Suman. The second one is from Shri G.M. Banatwalla and the third notice is on growing attack on the media. I have received these three notices of Adjournment Motion. I am not in a position to admit these notices. But since the issues are important, I can allow the Members to speak tomorrow, as a special case, during the `Zero Hour’. I am not in a position to admit them for various reasons. … (Interruptions) SHRI SHARAD PAWAR (BARAMATI): The Adjournment Motion is for today’s Business. … (Interruptions) MR. SPEAKER: They will give fresh notices tomorrow for Zero Hour. … (Interruptions) SHRI G.M. BANATWALLA : Sir, I have given notices for the past two weeks. … (Interruptions) SHRI HANNAN MOLLAH : Sir, during the last few months after the Gujarat riots, as media covered the Gujarat riots effectively, the Government started attack on the media. So, I have given an Adjournment Motion to raise it in the House. … ()

Regarding Passing Of The Indian Medicine Central Council ... on 1 August, 2002

Lok Sabha Debates

JUDGMENT Khem Chand Sharma, J. 1. This criminal appeal by appellant Harkesh sent through, Superintendent, Central Jail, Jaipur arises out of the judgment of the learned Additional Sessions Judge, Gangapur City converting the appellant for offence under Section 302 IPC and sentencing him to undergo life imprisonment and to pay a fine of Rs. 500/-, in default thereof to undergo simple imprisonment for two months. 2. The appellant was charged with the offence of committing murder of his real brother Hansraj by inflicting injuries with a knife, in the intervening night of 28/29.7.1998 while deceased was sleeping at the field. According to the prosecution case, Hari Prasad Meena P.W. 1 submitted a written report Ex.P.1 at the police station Bamanwas on 29.7.1997 mentioning that Hansraj, son of his uncle Sukh Lal, in routine, went to the field known as Telyadi Wala in the evening at about 7-8 on 28.7.1997 to keep watch. He used to sleep at the field. It was mentioned that today i.e. on 29.7.1997 in the morning at about 6 A.M., when Lakhan Lal Meena went to attend the call of nature at his field, he found Hansraj dead. He then disclosed this fact in the village. As per the case of the complainant, he alongwith Ramswaroop Meena, Batti Bairwa and Chuttan Lal son of Badri Meena and other villagers went at the field of Lakhan Lal and found Hansraj dead, having numerous knife injuries on his person. It was mentioned that some unknown persons killed Hansraj, causing injuries by knife. The police on the basis of this written report registered a case for offence under Section 302 IPC vide FIR No. 130/1997 (Ex.P.2) and proceeded with the investigation. 3. During the course of investigation, site-plan Ex.P.3 and inquest report Ex.P.4 were drawn. Blood stained soil and controlled soil was taken vide memo Ex.P.5. A towel, a knife, a watch and one ball-pen were seized from the place of occurrence vide Ex.P.6. Foot-prints were also taken vide Ex.P.12. Post mortem on the dead body of Hansraj was conducted by Dr. MP Jain, P.W. 18 on 29.7.1997 and the post mortem report is Ex.P.15. As per the post mortem report there were as many as 27 injuries on various parts of the body of the deceased, out of which 2 were bruises and the rest 25 were stab wounds. As per the opinion of the doctor the cause of death was cardiorespiratory failure due to multiple injuries to lung, liver, stomach (vital organs) and internal haemorrhage and external haemorrhage. 4. As per the prosecution case, on 2.8.97 appellant Harkesh made an extra judicial confession (Ex.P.10) before some of the villagers. Appellant Harkesh, was arrested vide arrest memo Ex.P.18 on 2.8.1997 at 2.00 P.M. and he was medically examined for his injuries and injury report is Ex.P.16. Underwear and Baniyan of appellant Harkesh were seized vide memo Ex.P.9. A pair of shoes of appellant Harkesh was also seized vide Ex.P.11. On completion of investigation, the police filed a charge sheet against the appellant Harkesh in the court of Civil Judge (Jr. Division), Bamanwas who finding the case exclusively triable by court of sessions, committed the case for trial to the court of Sessions. 5. The learned trial court, on the basis of evidence and material collected during investigation and placed before it and after hearing counsel for the parties, framed charges against the appellant for offence under Section 302 IPC. The accused denied the charge and claimed to be tried. 6. In order to prove its case, the prosecution examined as many as 19 witnesses and produced some documents. Thereafter, the appellant was examined under Section 313 Cr.P.C. In defence no witness was examined. In his explanation, the appellant denied the charges and stated about his false application. 7. At the conclusion of trial and after hearing counsel for the parties, the learned trial court found the prosecution case as alleged proved and accordingly convicted and sentenced the appellant as mentioned hereinabove vide impugned judgment and order dated 9.10.1998. Hence, this appeal against conviction and sentence. 8. We have heard learned counsel for the parties and have carefully gone through the evidence and material on record. 9. There is no direct evidence and the case squarely rests on circumstantial evidence. Having gone through the impugned judgment we find the following circumstances put forward by the prosecution and relied upon by the learned trial court: (1) Extra-judicial confession (Ex.P.10) made before the residents of the same village to which the appellant belongs. (2) Injuries found on the fingers of the appellant and for which there is no explanation. (3) Blood stains on the Baniyan and Underwear recovered from the body of the appellant, for which also, there is no explanation. 10. During the course of arguments, Shri Anurag Sharma, learned Amicus Curiae while referring some lacunas in the prosecution case has urged that the prosecution has utterly failed to prove the circumstances in a manner so as to complete the chain of circumstances pointing out only to the guilt of the appellant. As per the learned counsel neither the name of the appellant finds place in the FIR nor he was present in the village as he had gone to Delhi 5-7 days prior to the date of incident. There was no immediate cause or motive for the murder. Learned Amicus Curiae argued that the prosecution has failed to produce the FSL report to prove the presence of human blood on the Baniyan and Underwear seized from the body of appellant. Further, there is no report as regards the blood stained and controlled soil as also the foot- prints, though these articles were sent to FSL for chemical examination. On the strength of above arguments, learned counsel submitted that conviction of the appellant cannot be sustained. 11. The learned Public Prosecutor on the other hand has supported the judgment of the learned trial court and contended that no interference is required in the impugned judgment in the facts and circumstance of the case as the prosecution has been able to establish the circumstances in a manner so as to complete the chain of circumstances pointing out only towards the guilt of the appellant. 12. We have considered the rival submissions. From the evidence on record, we find that extra judicial confession of the appellant made before the villagers is one of the important circumstance existing against the appellant. Before we proceed to have reappraisal of the evidence concerning confession, we would like to refer the law on the point. 13. In Gura Singh v. State of Rajasthan (1), their Lordships of the Supreme Court have observed as under: "It is settled position of law that extra-judicial confession, if true and voluntary, it can be relied upon by the court to convict the accused for the commission of the crime alleged. Despite inherent weakness of extra-judicial confession as an item of evidence, it cannot be ignored when shown that such confession was made before a person who has no reason to state falsely and to whom it is made in the circumstances which tend to support the statement." 14. The Apex Court in the cases of Rao Shiv Bahadur Singh v. State of V.P. (2), Maghar Singh v. State of Punjab (3), has held that the evidence in the form of extra-judicial confession made by the accused to witnesses cannot be always termed to be a tainted evidence. Corroboration of such evidence is required only by way of abundant caution. If the court believes the witness before whom the confession is made and is satisfied that the confession was true and voluntarily made, then the conviction can be founded on such evidence alone. 15. Their Lordships of the Supreme Court in another case Narayan Singh v. State of M.P. (4), have cautioned that it is not open to the court trying the criminal case to start with a presumption that extra-judicial confession is always a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession is made and the credibility of the witnesses who speak for such a confession. The retraction of extra-judicial confession which is a usual phenomenon in criminal cases would by itself not weaken the case of the prosecution based upon such a confession. 16. In the case of Kishore Chand v. State of H.P. (5), their Lordships of the Supreme Court have held that an unambiguous extra-judicial confession possesses high probative value force as it emanates from the person who committed the crime and is admissible in evidence provided it is free from suspicion and suggestion of any falsity. However, before relying on the alleged confession, the court has to be satisfied that it is voluntary and is not the result of inducement, threat or promise envisaged under Section 24 of the Evidence Act or was brought about in suspicious circumstances to circumvent Sections 25 and 26. The court is required to look into the surrounding circumstances to find out as to whether such confession is not inspired by any improper or collateral consideration or circumvention of law suggestion that it may not be true. All relevant circumstances such as the person to whom the confession is made, the time and place of making it, the circumstances in which it was made have to be scrutinised. 17. Again in the case of Madan Gopal Kakkad v. Naval Dubey (6), their Lordships of the Apex Court held that extra judicial confession which is not obtained by coercion, promise of favour or false hope and is plinary in character and voluntary in nature can be made the basis for conviction even without corroboration. 18. In the light of aforesaid ennunciation of law, we would now evaluate the evidence both oral and documentary. 19. Ex.P.10 is the written confessional statement, which bears the signature of appellant Harkesh from portion marked 'C' to 'D' and the signatures and thumb impressions of the villagers before whom the appellants confessed. He made the confessional statement before the residents of the same village, of which he belongs. In Ex.P.10 the appellant has stated that first he entered in the village at 12.00 O clock and from there went to forest and returned to the village. Thereafter he went to the 'Bada' of Ram Swaroop. Thereafter went to the house of Kishan from where he took Sulpi (a clay article used for smocking tobacco) and Kothli (an article of stitched cloth used for keeping tobacco) and then went to the field and found that Hansraj was sleeping alone. He came beneath Bewadi (a big Bush); put off his clothes and put the same under the bush. Then he returned to the place where Hansraj was sleeping and started inflicting knife blows on the chest of Hansraj while he was sleeping on the cot. The appellant further stated that he chased Hansraj inflicting injuries to him up to Banjad and pushed him there and then inflicted 4-5 injuries by knife. Hansraj then ran from there and fell down in the field of Lakhan and became unconscious. As per the memo of confession, the accused inflicted 20 knife blows and killed the deceased. Thereafter he left the place and went to Gangapur and from Gangapur he went to Delhi and then returned to his house. None had brought him and he came himself. This document has been signed by the appellant and other villagers and was submitted to the police on 2nd August, 1997. 20. Having gone through the written confessional statement (Ex.P.10), we are of the view that confession is true and it was made to the signataries of Ex.P.10 voluntarily, without threat, coercion, force or promise. While examining the accused under Section 313 Cr.P.C., question No. 7 was specifically put to him regarding extra judicial confession Ex.P.10 having been made by him to the villagers but his answer to this specific question was that 'it is wrong' (Galat Hai). Thus evidently, the appellant has failed to offer any explanation as to the disclosure statement made before the witnesses and recorded in writing as Ex.P.10, which bears his signatures as also the signatures of the witnesses in whose presence he confessed. 21. It is well settled that corroboration of confessional statement is required to be sought only as a measure of abundant caution but to satisfy ourselves, we have gone into the oral evidence produced by the prosecution to corroborate the memo of extra-judicial confession (Ex.P.10) for which the prosecution has examined Bharat Lal P.W. 5 and Ram Sahai P.W. 6. In his examination-in-chief PW 5 Bharatlal has deposed that on the next day of Tiye ki bethak, the appellant came to the village. All the villagers collected at the school, inquiries were made from the accused and then, in the presence of the villagers the accused Harkesh confessed that he killed Hansraj. Accused Harkesh disclosed that he came to his house and then went to the field where Hansraj was sleeping and he murdered Hansraj by inflicting knife blows. The witness was cross-examined at length but nothing could be elicited to suggest that the confession was not voluntary or it was obtained by coercion, threat or promise. 22. PW 6 Ram Sahai, in his examination-in-chief, has deposed that the accused himself came to the village at 3.00 P.M. The appellant confessed in the presence of the villagers present at the school that he had killed Hansraj. The appellant confessed that at 12 O' Clock in the night he saw Hansraj sleeping at the field. He put off his paint and shirt and kept the same on the tree. He first ascertained that his parents and uncle (Tau) were sleeping in their house at the village and for that purpose he went to the village and came back and inflicted knife blows on the chest of Hansraj when he was sleeping. When Hansraj ran away from the house, he chased him and inflicted knife blows. This Witness categorically deposed that the accused made confession at his own accord and it was voluntary without any threat, coercion or promise. Even from his cross-examination, nothing could be suggested that the confessional statement was not voluntary or was the result of any inducement, threat or promise. 23. PW 8 Murari Lal and PW 11 Hariman have also stated similar to what above two witnesses have stated and hence these two witnesses have corroborated the statements of Bharat Lal (PW 5) and Ram Sahai (PW 6). 24. We also do not find any suggestion having been put to the prosecution witnesses whether there was animosity of the appellant with the witnesses of confession. The persons before whom the accused appellant made confession belonged to his village and they have categorically deposed that accused appellant without fear and pressure, on his own accord made voluntary confression. 25. Thus, from the evidence discussed above, it must be concluded that appellant Harkesh made confessional statement at his own accord, it was voluntary and was not obtained either by coercion nor threat or promise. Accordingly, the first important circumstance stands well established beyond reasonable doubt. 26. Now we proceed to deal with remaining circumstances, first of which is the injuries found on the fingers of the appellant. PW 18 Dr. M.P. Jain who conducted autopsy on the dead body of deceased noticed as many as 27 injuries, out of which 25 were stab wounds caused by knife. The injuries No. 16 and 27 have been stated to be grevious in nature. In the opinion of Dr. Jain, the cause of death was cardiorespiratory failure due to multiplicity and injuries to lung, liver, stomach and internal haemmorahage and external haemmorahage. Dr. Jain also examined, the injuries of appellant and prepared report Ex.P.16. He found one abrasion and two incised wounds both measuring 0.7cm x 1mm x skin deep on middle phalenx of right little finger and three incised wounds measuring 0.5 cm x 1cm x skin deep, 0.4cm x 1mm x skin deep, 0.3 cm x 1mm x skin deep on middle phalenx of right ring finger. As regards the injuries of appellant, Dr. Jain explained that the incised wounds of the appellant can be caused in the course of infliction of knife injuries to some person. The presence of injuries on the person of appellant was also noticed by PW 19 Ghanshyam Singh at the time when he arrested the appellant and he made a reference of the injuries in the arrest memo Ex.P.18. As per the doctor, the duration of injuries No. 1 to 27 found on the person of deceased and the incised wound of the appellant was the same, meaning thereby the injuries of the deceased and that of appellant were sustained at the same time. That apart, the accused appellant in his examination under Section 313 Cr.P.C. could not be able to offer any explanation as to how he sustained the injuries described in the injury report, although specific question No. 20 was put to him. He simply relied 'does not know' (PATA NAHIN). In these circumstances it can safely be inferred that accused appellant sustained injuries in the process of inflicting injuries to the deceased. The second circumstance, therefore, also stands established. 27. Now remains the last circumstance i.e. the presence of blood stains on the Baniyan and underwear of the appellant. The Baniyan and underwear of the appellant were seized by the investigating officer but the same could not be produced in the court. Admittedly, the prosecution has not been able to produce the above seized items in the court. Further, there is no FSL report as regards the presence of blood on the underwear and Baniyan of the appellant. It may also be noticed that the incident happened in the night intervening 28/29.7.97, whereas the accused was arrested on 2.8.97 i.e. after 5 days of the incident and the underwear and baniyan were also settled after 5 days of the incident. Thus the fact that at the time of recovery of these articles after five days of the incident cannot at all be believed, as no one would continue to wear the same cloths having blood stains after the commission of crime. In this view of the matter, we are of the firm view that the prosecution has not been able to prove the last circumstance against the appellant. 28. The two important circumstances, first the extra judicial confession of the appellant and second, the injuries noticed on the person of appellant having found established beyond doubt, in our considered view, are sufficient to complete the chain of circumstances, which unmistakably prove the gruesome offence of murder, unerringly establishing the guilt of the accused appellant beyond all reasonable doubts. Accordingly, we hold that appellant was the perpetrator of the crime. The trial court has rightly found him guilty of committing murder of his brother Hansraj. 29. The result of above discussion is that this appeal fails and is hereby dismissed. The conviction of the appellant under Section 302 IPC and the sentences awarded thereunder by the trial court are maintained.

Author: K C Sharma

Harkesh vs State Of Rajasthan on 28 July, 2003

Rajasthan High Court

CENTRAL INFORMATION COMMISSION Room No.415, 4th Floor, Block IV, Old JNU Campus, New Delhi 110066. Tel: + 91 11 26161796 Decision No. CIC /OK/A/2008/00455/SG/1119 Appeal No. CIC/OK/A/2008/00455/ Relevant FactsRTI application filed on : 27/09/2007 PIO replied : 26/10/2007 First appeal filed on : 27/10/2007 First Appellate Authority order : 13/12/2007 Second Appeal filed on : 09/04/2008 emerging from the Appeal Appellant : Mr. Faisal Zia Siddiqui, Lecturer in Civil Egg. Section, University Polytechnic, AMU, Aligarh. Md. Arifudin Ahmad, Dy. Registrar (Legal Section) & CPIO, Respondent : Aligarh Muslim University, Aligarh - 202002, U.P.The Appellant had filed an application seeking information regarding on going installation of water purifier by the brand name of Alfa-500 in various Halls. Dept. and Officers of the University. The information required with the PIO's Reply as follows: S.No Information Sought The PIO Reply 1. The specifications of the water purifier The information provided by the MIC currently being installed by the brand name (Purchase) and Finance Officer is enclosed. Alfa-500. The information as desired by you is very volumouns. Hence, it attracts Section 7 (9) of RTI Act, 05 you may specify specific hall, Dept. or office to provide the information in desired format. 2. The cost per unit of the water purifier. As above. 3. The specifications and brand name of the As above. water purifiers previously installed. 4. The cost per unit of the purifier previously As above. installed. 5. The date on which the previously water As above. purifiers were ordered. 6. The date on which the previously water As above. purifier installed. 7. A copy of the notice inviting tender for the As above. purchaser of the said Alfa-500 water purifier. 8. Name of the companies/organizations that As above. were short listed including a certified copy of the comparative chart prepared. 9. Name & add. Of the company/organization As above. that was awarded this contract including their telephone/mobile nos. and UPTT & CST numbers. 10. The total value of the contract awarded As above. (Alfa-500). 11. The total values of the previously awarded As above. contract vide which the water purifier were installed. 12. Name & add. Of the company/orgn. Which As above. was previously awarded the contract for installation of water purifier that is currently being replaced including their telephone/mob. Numbers and UPTT & CST numbers. 13. Certified copy of the comparative chart As above. prepared for the previously awarded contract The Fist Appellate Authority Ordered: The FAA said public authority is needs not to crate and generate the information at the desired format of the Appellant. To collect the information from each and every Hall/Dept. and offices and convert the information in your specific twenty two criteria is definitely attracting Section 7 (9) of the RTI Act, 05. The the Appeal is rejected. The following were present Appellant: Mr. Faisal Zia Siddiqui Respondent: Md. Arifudin Ahmad, Information has been provided on point no. 1,2,7,8,9,10 and 14 to 22. The remaining information on point number 3,4,5,6,11,12, and 13 will be provided before 5 February 2009. Decision: The Appeal is allowed. The PIO will give the information mentioned above to the appellant before 5 February 2009. This decision is announced in open chamber. Notice of this decision be given free of cost to the parties Shailesh Gandhi Information Commissioner 16th January, 09. (For any further correspondence, please mention the decision number for a quick disposal)

Mr. Faisal Zia Siddiqui vs Aligarh Muslim University on 16 January, 2009

Central Information Commission

Any suit (except a suit Thirty When the before the Supreme years period of Court in the exercise of limitation its original jurisdiction) would begin by or on behalf of the to run Central Government or under this any State Government Act against including the all suits by Government of the State a private of Jammu and Kashmir person. JUDGMENT Rajesh Balia, J. 1. The only ground raised in this appeal is about the limitation of the counter claim filed by the State in a suit filed by the appellant. The counter claim relating to a money claim of the State has been entertained by the trial Court by treating the limitation in filing a counter claim in a suit by the State in any matter to be 30 years in accordance with the provisions of Article 112 of the Schedule appended to the Limitation Act, 1963. 2. It has been contended by learned Counsel for the appellant before the learned Single Judge as well as before us that limitation for filing of a suit for the plaintiff-appellant had been three years and necessarily for that reason the limitation for entertaining any counter claim in such suit can only be three years and not different from the limitation of the suit in which counter claim has been filed. It was also contended by learned Counsel that Article 112 is restricted to the suit in relation to the immovable properties as according to him the corresponding provision in the Limitation Act, 1908 was operative only in the field of suit filed by the State relating to immovable property which was repealed by the Act of 1963. 3. These contentions, in our opinion, cannot be sustained in view of the plain language of Section 3(2)(b) read with Article 112 which reads as under: Section 3(2)(b) any claim by way of a set-of or a counter-claim, shall be treated as a separate suit and shall be deemed to have been instituted (i) in the case of a set-off, on the same date as the suit in which the set-off is pleaded; (ii) in the case of a counter-claim, on the date on which the counter claim is made in court. Article 112. 4. It is apparent from the perusal of the Article 112 that it makes no distinction between the suit involving immovable property or movable property. In fact it applies to suits of all kinds irrespective of nature of claim made by or on behalf of the Central Govt. or any State Govt. including the Government of the State of Jammu and Kashmir. 5. The date of the commencement of the limitation remains the same as in the case of the like suit to be initiated by the private person but the terminal point in the case of the State is 30 years whereas the terminal point in the case of private person shall be governed in accordance with the nature of suit and provisions governing the specific matter of the suit to be filed by the private person. 6. It is also well settled and statutorily recognised Under Section 3(2)(b) of the Act of 1963 that the counter claim by any defendant filed in a suit is to be considered as a separate suit itself and it is deemed to have been instituted on the date on which the counter claim is made in the Court. Such claim is to be tried and adjudicated as a separate suit, all be it in the same proceedings. The expression, counter claim only suggests that it only denotes that it has not preceded the filing of the suit but has been filed in answer to a suit filed by the person against a defendant, who claims to have an enforceable right against the plaintiff and wants its adjudication. 7. As the suit to be filed by the State, if seen independent of plaint filed by the appellant, was within 30 years of the date when cause of action arose, the claim put forward as a counter to suit filed by the present appellant, such counter claim has to be treated as a separate suit by the State. The limitation for entertaining the adjudication of the counter claim shall be governed by Article 112 and will have to be adjudicated on that basis. Thus the contention of appellant on this premise must fail. 8. No other point has been raised. 9. The appeal fails and is hereby dismissed in limine. 10. 50% of the Court fee may be refunded to the appellant.

Author: R Balia

Narula And Co. vs State Of Rajasthan on 10 January, 2002

Rajasthan High Court

Court No. - 5 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 15359 of 2010 Petitioner :- Om Pal Respondent :- State Of U.P. Petitioner Counsel :- Sunil Kumar Dubey Respondent Counsel :- C. S. C. Hon'ble Ravindra Singh,J. Heard learned counsel for the applicants and learned AGA. This bail application has been filed with a prayer to release the applicant on bail in case Crime No. 147 of 2010 under Sections 302, 201 I.P.C. P.S. Chhaprauli, District Baghpat. It is contended by the learned counsel for the applicants that first informant is not eye witness. He has lodged the F.I.R. on the basis of information given by Pravendara Kumar. The alleged incident taken place in night of 10.04.2010 at about 4.00 am. The F.I.R. has been lodged on 10.04.2010 at about 7.15 am. It is alleged that four persons including the applicant caused injury on the person of the deceased. But no specific weapon has been shown in the hands of the applicant and other co-accused. According to the post-mortem report the deceased have sustained the injuries caused by hard and blunt object. The applicant is in jail since 13.05.2010. He has no criminal history. In view of the facts and circumstances of the case, submissions made by the learned counsel for the applicant without expressing any opinion on the merits of the case the applicant is entitled to be released on bail. Let the applicant Om Pal involved in case crime No. 147 of 2010 under Sections 302, 201 I.P.C. P.S. Chhaprauli, District Baghpat be released on bail on their furnishing a personal bond and two heavy sureties each in the like amount to the satisfaction of the Court concerned with the following conditions: i. That the applicants shall not tamper with the evidence. ii. They shall report to the Court of C.J.M. concerned in the first week of each month to show their good conduct and behaviour till the conclusion of the trial. In default of the above conditions, the bail granted to them shall be deemed cancelled and they shall be taken into custody by the C.J.M. concerned. Order Date :- 18.6.2010 Naresh

Om Pal vs State Of U.P. on 18 June, 2010

Allahabad High Court

Gujarat High Court Case Information System Print LPA/2128/2009 3/ 3 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No. 2128 of 2009 In SPECIAL CIVIL APPLICATION No. 7272 of 2009 With CIVIL APPLICATION No. 11282 of 2009 In LETTERS PATENT APPEAL No. 2128 of 2009 ============================================= SHREE AVANIA TELIBIYA UTPADAK SAHAKARI MANDALI LTD - Appellant(s) Versus DEPUTY REGISTRAR (APPEAL) & 2 - Respondent(s) ============================================= Appearance : MR SACHIN D VASAVADA for Appellant(s) : 1, None for Respondent(s) : 1, 3, MS MANISHA SHAH ASST GOVERNMENT PLEADER for Respondent(s) : 2, ============================================= CORAM : HONOURABLE THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA and HONOURABLE MR.JUSTICE AKIL KURESHI Date : 13/04/2010 ORAL ORDER(Per : HONOURABLE MR.JUSTICE AKIL KURESHI) The appeal is filed by the original petitioner challenging the judgment and order dated 16.07.2009 passed by the learned Single Judge in Special Civil Application No.7272 of 2009. 2. The petitioner had, in the said petition, challenged the orders passed by the authorities ordering winding up of the petitioner co-operative society in exercise of the powers under the Gujarat Co-operative Societies Act, 1961. 3. Learned Judge noticed that the competent authority after giving reasonable opportunity of being heard to the petitioner society found that the society needs to be wound up under Section 107 of the Gujarat Co-operative Societies Act, 1961. The appeal and revision filed by the petitioner also failed. In particular, the learned Judge noticed that the society came to be wound up on the following grounds. The business of the society was not carried out as per the object and there was violation of the bye-laws. Even when the notice was issued, the lacunas were pointed out by the Auditor in Audit report of the last two years, were not complied with and violation of the Section 85 of the Act. It was also noticed that the Society had ceased to continue its operation as required under Section 107(1)(c)(2) of the Act and no willingness was shown by the office bearer of the society to carry on it's affair in accordance with laws. 4. Learned Judge considered all the aspects of the matter and considered the arguments advanced on behalf of the petitioner society. Learned Judge, however, was of the opinion that in exercise of the writ jurisdiction under 226 of the Constitution, no interference is called for. It was also noticed that the society with which the petitioner was attached had themselves gone into liquidation. It was also noticed that on behalf of the petitioner society, no documentary evidence or any other evidence was produced to show that powers under Section 107 of the Gujarat Co-operative Societies Act were wrongly exercised. 5. Considering all the aspects of the matter, we do not see any illegality in the decision of the learned Judge. When the three authorities below as well as the learned Single Judge found on the basis of material on record that the society was defunct, we see no reason to take a different view. Counsel for the petitioner, however, submitted that the liquidation of the co-operative society should be last resort and in the present case, the authorities did not explore the other possibilities. In the present case, we do not find that either the authorities under the Gujarat Co-operative Societies Act or the learned Judge erred in coming to the conclusion that the winding of the petitioner society was the only choice available. In the result, the appeal fails and stands dismissed. Civil Application for stay also stands dismissed. (S. J. MUKHOPADHAYA, C.J. ) ( AKIL KURESHI, J. ) kailash     Top

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

Shree vs Deputy on 13 April, 2010

Gujarat High Court

JUDGMENT Srinivasan, J. 1. The appeal arises out of the suit filed by the respondent herein on a promissory note dated 18.8.1973, marked as Ex.A-1, for a sum of Rs. 50,000 executed by the appellant herein. The suit is filed by the Idol of Sri Sellandi Amman at Sri Sellandi Amman Temple, Noyyal Village, Karur Taluk. Originally the idol was represented by the fit person and later, the Executive Officer, Sri Kalyana Pasupatheeswarar Temple, Karur Taluk, Karur got substituted in the place of the fit person. The suit is based only on the promissory note and as per the plaint, valuable consideration passed under the promissory note. A lawyer's notice was issued on 22.1.1979 and the defendant sent a reply on 31.1.1979 admitting the execution of the promissory note, but pleaded loss in the toddy business and inability to pay the amount to the plaintiff. A rejoinder was sent on 12.2.1979 and the suit was filed on 5.8.1979. There was an endorsement on the promissory note evidencing payment of Rs. 100 on 6.8.1976. 2. In the written statement, the plea raised by the defendant is as follows: The defendant did not receive any cash consideration but executed the promissory note in favour of one Ramasamy Gounder, who was a poosari in the temple. During 1972-73 the arrack shop at Noyyal village was taken in auction by Ramasamy Gounder. That shop was run by the defendant. Out of the profits earned by him, he paid a sum of Rs. 18,000 in all to the plaintiff temple and obtained receipts from Ramasamy Gounder. The villagers of the Noyyal village came to an agreement that the auction should be taken by a person agreed to by all the villagers and the benefit of the auction should go to the temple. It was also agreed in 1973-74 that the auction should be taken in the name of Ramasamy Gounder, poosari of the temple, but the business shall be run by the defendant, who shall execute a promissory note for Rs. 50,000 in favour of Ramasamy Gounder and another promissory note for a sum of Rs. 50,000 in favour of Nallappa Gounder, hereditary trustee of the temple. The two promissory notes were produced by the fit person of the temple before the Sub Collector of Karur, who called upon the defendant and got endorsements as if a sum of Rs. 100 was paid for each promissory note though no amount was paid actually. Subsequently, a panchayat was convened in the village and the promissory note executed in favour of Nallappa Gounder was given back to the defendant without any payment. The suit is not maintainable as the plaintiff is not the promisee in the document and it is also barred by limitation. The suit is also not sustainable as the transaction is illegal. 3. The trial court held that the suit promissory note is Supported by consideration and the plaintiff is entitled to maintain the suit. It is also held that the suit is not barred by limitation and not hit by the provisions of Section 23 of the Contract Act as the suit is filed de hors the illegality. 4. It is contended on behalf of the appellant that the plaintiff is not competent to file the suit as the promissory note is not in the name of the plaintiff. Reliance is placed upon the judgments in the cases of Narayanamoorthi v. Umamaheswaran A.I.R. 1930 Mad. 197 : 122 I.C. 345, Lachmi Chand v. Madanlal Khemka A.I.R. 1947 All 52, Bacha Prasad v. Janki Rai A.I.R. 1957 Pat. 380 (F.B.), K. M. K. Subbaraya Chettiar v. Abirami Animal and Babu Kalingarayar v. Rajam alias Rajalakshmi Animal (1978)1 M.L.J. 67. In those cases, it has been held that it is only a holder of the promissory note whose name appears on the document itself who can maintain the suit. Section 8 of the Negotiable Instruments Act, 1881 defines a 'holder' as any person entitled in his own name to the possession thereof and 10 receive or recover the amount due thereon from the parties thereto. It is vehemently argued that the plaintiff temple is not a holder within the meaning of the Negotiable Instruments Act as the name of the temple does not find a place in the suit promissory note. It is contended that even if as a fact the temple is the beneficiary of the promissory note, it cannot maintain the suit as it is based on a negotiable instrument. We are unable to accept this contention. We find in Ex.A-1, the relevant portion of the recital reads thus: The fact that the name of the temple is mentioned therein is sufficient to indicate that the promissory note is only in favour of the temple as such. Many persons do not know that Idol is a legal person and there can bean instrument in favour of the Idol. Hence, the document is written as if it is in favour of the temple. It is contended that the name of the temple and the office of the poosari are mentioned only to describe the promisee. We do not accept this contention. No doubt, the poosari's name is mentioned as Ramasamy Gounder, but that does not mean that the promissory note is in favour of Ramasamy Gounder and not the temple. This fact is substantiated by the admissions in the written statement itself. In paragraph 2(b) of the written statement it is stated very clearly that it was decided in the village panchayat that the promissory note should be executed in favour of Ramasamy Gounder for the temple. There is a similar recital in paragraph 2(c) of I he written statement. The relevant portion reads thus: 5. In Ex.A-4, the reply notice issued by the defendant's counsel to the plaintiffs Counsel on 31.7.1979 it is recited that the promissory note is executed in the name of Ramasamy Gounder for the temple. In Ex A-9 which is an agreement brought about in the village panchayat the defendant has agreed that he would pay a sum of Rs. 18,600 to the Idol within eight months. Ex.A-9 reads thus: That document relates to the previous year. It is not in dispute that the transaction was similar and there was a similar agreement in the previous year also. No doubt, the defendant has chosen to dispute the signature in Ex.A-9, but it is proved by P.W.3. He has stated categorically that the signature in Ex.A-9 is that of the defendant. In the cross-examination it is suggested to him that it is not the signature of the defendant, but he has denied it. The defendant has stated in the witness-box that in the note-book in which Ex.A-9 is a part, - his signature is not found. But we have compared the signatures of the defendant in the written statement as well as in the deposition with the signature found in Ex.A-9. We have no doubt that the signature found in Ex.A-9 is that of the defendant and he is making a false statement that he did not sign Ex.A-9. 6. Hence, we conclude that the promissory note is only in favour of the temple as such and it is entitled to maintain the suit. 7. Learned Counsel for the respondent has drawn our attention to the judgment of this Court in the case of Ponnusami Chettiar v. Vdkumuthu . In that case, the name of the promisee was not mentioned in the promissory note. The description of the payee was "son of Palaniandi Chettiar". The Court held that on the evidence it was made clear that the plaintiff was the only person who was entitled to be the payee. It was laid down that absence of the name of the payee in a promissory note will not make the note invalid where the payee was known with certainty even at the time of execution. The learned Judge observed, "the description of the payee in the suit promissory note was "son of Palaniandi Chettiar. He was certainly that. But there are also three other sons of Palaniandi Chettiar, according to the plaintiff, though they never lent a pie to the petitioner and had not come into the picture at all. I think the law is not so wooden as to allow this kind of quibbling by a debtor in a desperate attempt somehow to escape his just liability...So too, no amount of quibbling can change the fact that this particular promissory note was executed by the petitioner in favour of the plaintiff, that particular son of Palaniandi Chettiar." 8. Section 96 of the Evidence Act, 1872 provides that when the facts are such that the language used might have been meant to apply to anyone, and could not have been meant to apply to more than one, of several persons or things, evidence may be given of facts which show which of those persons or things it was intended to apply to. In the present case, the pleadings as well as the evidence are clearly indicative of the fact that the promissory note is only in favour of the temple and not in favour of the Poosari Ramasamy Gounder in his individual capacity. The said Ramasamy Gounder is named in the promissory note only as a representative of the temple. Hence, the contention of learned Counsel for the appellant is rejected. 9. It is next argued by learned Counsel for the appellant that the promissory note is not supported by consideration. There is no merit in this contention. No doubt, no cash was given as such when the promissory note was executed. But admittedly, the defendant was permitted to run the business of arrack shop which was taken in auction. He has also said that there is loss in the business and only if there is profit he is liable to pay any amount to the temple. Once it is admitted that the defendant has been running the business that would amount to valuable consideration to support the promissory note. Hence, this contention fails. 10. Next contention is that the suit is not maintainable inasmuch as the promissory suit is a result of an illegal transaction, which is opposed to Section 23 of the Contract Act. Section 23 of the Contract Act reads thus: What considerations and objects are lawful, and what not. The consideration of object of an agreement is lawful, unless., it is forbidden by law; or is of such a nature that, if permitted, it would defeat the provisions of any law; or involves or implies injury to the person or property of another; or the court regards it as immoral, or opposed to public policy; In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful, is void. The suit is based only on the promissory note. The promissory note does not fall in any of the clauses of Section 23 of the Contract Act. Even if it is assumed that there was an anterior transaction which is illegal and that resulted in the suit promissory note, the enforcement of the promissory note cannot be resisted on the ground of illegality. The suit is filed de hors illegality and therefore it is maintainable. 11. Similar question has been considered by this Court in the case of Pichaiah Fillai v. Govindaswamy Chettiar (1977)1 M.L.J. 107. The learned Judge has pointed out that the illegality did not attach to the suit contract and it was outside the contract. In the present case also whatever might have been the illegality in the agreement arrived at in the village panchayat, that does not vitiate the promissory note as such. Moreover, nothing has been placed before us to show that the agreement arrived at by the village panchayat is illegal or opposed to any provisions of law. Hence, this contention also fails. 12. In the result, the appeal has to suffer dismissal and it is dismissed with costs.

Author: Srinivasan

S.K. Samiyappan vs The Idol Of Sri Sellandi Amman At ... on 22 July, 1993

Madras High Court

[Section 28(1)] [Section 28] [Complete Act]

Central Government Act

ORDER T. Ramabhadran, J.C. 1. This petition, under Article 226 of the Constitution, arises under the following circumstances. 2. On 4-10-1956 A. D., petitioner Shri Prithi Chand was elected as one of the Directors of the Himachal Pradesh State Co-operative Bank Ltd. in accordance with the bye-laws of that Bank. By means of an application dated 12-1-1957 A. D., addressed to the Registrar, Co-operative Societies, Himachal Pradesh, one Shri Chet Ram Chandel, a shareholder of the above Bank, questioned the validity of Shri Prithi Chand's election as a Director, The Registrar, purporting, to exercise the powers, conferred upon him by S. 88 of the Himachal Pradesh Co-operative Societies Act, 1956 referred the dispute to the arbitration of Shri Nand Lal, District Audit Officer, Mahasu. On 18-7-1957, the arbitrator made an award, holding that the election of Shri Prithi Chand was invalid. Against that award, Prithi Chand filed an appeal to the Registrar, Co-operative Societies, under Section 113 of the Himachal Pradesh Co-opera tive Societies Act, read with the Second Schedule thereto. On 17-1-1958, the appeal was dismissed by the Registrar. Hence, this writ petition by Prithi Chand, wherein I am requested to issue a writ of certiorari, quashing the orders of the Registrar (in appeal) and the award of the arbitrator. 3. This petition was admitted by this Court on 5-4-1958 mainly on the ground that the Registrar had wrongly interpreted bye-law 59(v) of the Bank. 4. A written-statement was filed by the respondent No. 1 (Registrar, Co-operative Societies, H. P.) and the same has been adopted by respondent No. 2 (Shri Chet Ram Chandel). On 27-6-1958, I heard the arguments of the learned counsel for the parties on the preliminary objections, raised by the respondents and set forth in the opening portion of their written-statement. On 30-6-1958, I indicated that the preliminary objections could not be sustained, although the grounds for corning to that conclusion were reserved. On the 17th instant, I heard arguments on the merits of the petition. I now proceed to deliver judgment. 5. First of all, I take up the preliminary objections, raised by the respondents to the competency of this writ petition. Mr. Thakar Dass for the respondents submitted firstly that the petitioner had suppressed certain material facts and made false averments in his petition and, therefore, could not invoke the writ jurisdiction of this Court. In the second place he argued that disputed questions of fact had to be gone into and, therefore, the proper course for the petitioner was to file a regular civil suit. He invited my attention to the provisions of S. 112 of the Himachal Pradesh Co-operative Societies Aet, 1956, and pointed out that under sub-s. (3) thereof, when an order, decision or award under the Act was challenged on the ground of want of jurisdiction, a civil suit would not be barred. Learned counsel further cited, inter alia, (a) Sati Nath v. Suresh Chandra, AIR 1941 Cal 136 (A). There, Ameer Ali, J., indicated that: "A suit by A to establish the rights by declaration and injunction of B, C, D and E does not lie. A suit, challenging the position of a particular board of directors and to remove the directors from the directorate is wrongly constituted. But a suit for a declaration, that the plaintiff is a director and for the protection of his rights qua director, is competent." (b) Shyamapada v. Abani Mohan, AIR 1951 Cal 420 (B). There, Bose, J., observed that: "Recourse ought not to be allowed to an extraordinary remedy when it is not really needed, and a mandamus will never be granted to enforce the general law of the land, which may be enforced, by action. In the case of Informations or Writs in the nature of a Quo Warranto such Informations or Writs are not issued as a matter of course where there is an alternative remedy which is equally appropriate and effective. Under Article 226, the power of the Court is not confined to the power to issue Writs in the nature of Mandamus and other writs mentioned therein. Under the Article the Court has wider powers. But the power of the Court is discretionary and the proceedings under Article 226 being of a summary and coercive nature the powers under the Article should be sparingly used and only in those clear cases, where the rights of person have been seriously infringed and he has no other adequate and specific remedy available to him." (c) K.S. Rashid and Son v. Income-Tax Investigation Commission, AIR 1954 SC 207 (C). Therein, their Lordships, while dealing with a case arising out of the Taxation of Income (Investigation Commission) Act, 1947, were pleased to hold that : "The remedy, provided for in Article 226 of the Constitution, is a discretionary remedy and the High Court has always the discretion to refuse to grant any writ, if it is satisfied, that the aggrieved party can have an adequate or suitable relief, elsewhere. Where the petitioners have already availed themselves of the remedy, provided for in S. 8(5) of the Taxation of Income (Investigation Commission) Act and a reference has been made to the High Court, in terms of that provision which is awaiting decision, it would not be proper to allow the petitioners to invoke the discretionary jurisdiction under Article 226 of the Constitution at this stage. In case the proceeding occasions a gross miscarriage of justice, there is always the jurisdiction in the Supreme Court, to interfere by way of special leave." 6. On these premises, I was requested to dismiss this writ petition and to direct the petitioner to seek his remedy by way of regular suit, if so advised. 6a. Mr. M. L. Aukta for the petitioner, on the other hand, pointed out that neither of the two Calcutta rulings, (quoted above) referred to by Mr. Thakar Dass, related to cases arising out of disputes under the Co-operative Societies Aet. The Supreme Court decision, as already pointed out, arose out of an income-tax case. Mr. Aukta further submitted that no inquiry into disputed facts was necessary in the present case, because the factum of the election of his client (Shri Prithi Chand) as a Director of the Bank was not disputed. The only point to be decided here is whether the Registrar and the Arbitrator have erred in interpreting bye-law 59(v) of the said Bank to the petitioner's detriment. Learned counsel contended that once this Court comes to the conclusion that the bye-law has been misinterpreted, no further inquiry was necessary and a writ has to issue. 7. As was pointed out in T.K. Gopala Chetty v. Director of Public Instruction in Mysore, (S) AIR 1955 Mys 81 (D): "The powers of the High Court under Article 226 are wide and not limited to cases for safeguarding fundamental rights as implied from the words 'for any other purpose'". 8. Since, in my opinion, for reasons to be stated shortly, the Registrar and the Arbitrator have misinterpreted bye-law 59(v), resulting in a miscarriage of justice, this is a fit case where this Court should exercise its powers, conferred by Article 226 and not drive the petitioner to the necessity of filing a regular civil suit. The petitioner may have a right of suit, but, under the circumstances of the case, I would not consider it as an equally efficacious remedy. 9. It was for these reasons that on 30-6-1958 I overruled the preliminary objections, raised by the respondents, and decided to hear the petition on its merits. 10. Coming to the merits of this petition, two points were urged by the learned counsel for the petitioner: (1) The Registrar had no jurisdiction to refer the matter to the arbitration of Shri Nand Lal because there was no dispute as contemplated by S. 88 of the Himachal Pradesh Co-operative Societies Aet, 1956. Consequently it was urged that the proceedings before the Arbitrator and the award made by him were without jurisdiction. (2) Both the Arbitrator and the Registrar (in appeal) have totally misconstrued bye-law 59(v) of the Bank. 11. Since I find that bye-law 59(v) has not only been misinterpreted but also misquoted by the Registrar, thereby resulting in a miscarriage of justice, it does not appear necessary to go into the first question. Let us take up bye-law 59(v). It runs as follows: "No individual holding ordinary shares or a representative of society or institution is eligible for election to the Board, if ..... ..... (v) he is in default to the Bank or to his Society or the Society represented by him is in default to the Bank." The bye-law has been very clumsily worded. It relates to three categories of persons: (i) an individual holding ordinary shares; (ii) a representative of a society and (iii) a representative of an institution. Bye-law 59 (v) refers to all the three categories in one sentence. We have, therefore, to see carefully which part of this bye-law refers to which category. The expression "if he is in default to the Bank", obviously, applies to an individual holding ordinary shares. Similarly, the expression "if he is in default to his society" applies, not to an individual holding ordinary shares, but to a representative of a society. The Registrar in the course of his appellate order has misquoted bye-law 59(v). His rendering of this bye-law runs as follows: "No individual holding ordinary shares or a representative of Society, or institution is eligible for election to the Board, if, ..... (v) he is in default to the Bank or to a Society or the Society represented by him is in default to the Bank." The bye-law refers to "his" society and not to "a" society, as the Registrar seems to think. This, probably, accounts for the Registrar's conclusion that if an individual holding ordinary shares is in default to any society, he would be ineligible for election of the Board of Bank's directors. I am constrained to remark that the Registrar has not read the relevant bye-law carefully; otherwise, he would not have arrived at this wrong conclusion. The petitioner, Shri Prithi Chand, admittedly holds 10 shares in the Bank, in his individual capacity, and, therefore, would be eligible for election as Director, vide bye-law 59 (vii). It is no body's case that the petitioner has incurred any of the disabilities, set forth in bye-law 60, which would entail the cessation of his directorship. He was elected as a Director in that capacity and not a representative of a society or institution. Consequently, it is, immaterial if Shri Prithi Chand was in default to the Theog Co-operative Multi-purpose Society or not. Mr. Thakar Dass for the respondents suggested that it was highly undesirable that an individual, who is in default to a Co-operative Society should function as Director of the State Co-operative Bank. It may be desirable that the Directors of the Bank should not be in default to the Bank or any Co-operative Society. But bye-law 59, as it stands, merely does not prohibit the election of an individual holding ordinary shares to the office of a Director, unless he is indebted to the Bank. Consequently, unless bye-law 59 is amended, an individual holding ordinary shares, is not disqualified from seeking election to the directorship, unless he is in default to the Bank. The mere fact that he is in default to a Society would not debar him from seeking election. I am afraid that the legal position has not been correctly understood by the Registrar or the Arbitrator with the result that there has been a miscarriage of justice. I am, therefore, clearly of the opinion that this is a fit case where this Court should exercise its powers conferred by Article 226 of the Constitution. 12. It is unnecessary, under the circumstances, to go into the question as to whether there was a dispute within the scope of Sec. 88 of the Himachal Pradesh Co-operative Societies Act, 1956, which could be referred by the Registrar to an Arbitrator. 13. ORDER : A writ of certiorari will accordingly be issued to Respondent No. 1 (Registrar, Cooperative Societies, Himachal Pradesh) quashing the order, purporting to be an award, made by Shri Nand Lal, District Audit Officer, Mahasu, on 18-7-1957 inter partes, as well as the appellate order of the Registrar, Co-operative Societies Himachal Pradesh dated 17-1-1958, purporting to confirm the award. Parties are relegated to the position they occupied when the so-called dispute was referred by the Registrar to arbitration. 14. Since, this is the first case of this kind, which has come to the notice of this Court, I make no order as to the costs of this petition.

Prithi Chand vs Registrar, Co-Operative ... on 22 July, 1958

Himachal Pradesh High Court

JUDGMENT Om Prakash, J. 1. This is the first appeal from order dated 10-1-1979 passed by the learned Ad-Hoc Claims Commissioner, Allahabad (herein after referred to as, the Commissioner) awarding compensation aggregating to Rs. 10,000/- for loss of property and for pain and suffering caused to the claimant from the accident with the train, in which she travelled, had met on 10-10-1977. The claimant sustained two fractures besides other minor injuries and her V.I.P. Suit-Case containing jewellery and other articles was lost. 2. Considering the evidence available on record, the Commissioner awarded compensation to the extent of Rs. 4,500/- for the loss of property and Compensation of Rs. 5,500/- for the pain and suffering caused to the claiman from the injuries that she sustained. Aggrieved, the claimant has filed th instant appeal. 3. I have heard learned Counsel for the parties at some length. The contention of learned Counsel for the claimant is that the commissioner has not awarded any compensation for the loss of jewellery and the compensation awarded for the injuries is wholly inadequite. A careful perusal of the order of the Commissioner shows that the first information report of the said incident was lodged by the claimant on 13-10-1977. that is after three days of the train accident. The claim petition was submitted on 2-1-1978 and the details of jewellery were furnished on 11-1-1978. The details of the jewellery having not been furnished either in the first information report or in the claim petition, the Commissioner took the view that the explanation given for not having furnish ad the list of the jewellery prior to 11-1-1978 could not be believed. I do not agree with the approach of the Commissioner. No conflicting stand was taken in the first information repart. It was clearly stated in the first information report that some jewellery was lost and details of which would be furnished in due course. Thereafter, the claim petition was filed and the details were furnished on 11-1-1978. The explanation oa behalf of the claimant is that the treatment was the paramount conideration after the accident and therefore, not much attention was paid to furnish the details of the jewellery, the loss of which was alleged in the first information report. Thus the claimant fully explained as to why the details of the Jewellery were furnished at late as 11-1-1978. The claimant being a Hindu lady, it can be ordinarily presumed that she must be having some jewellery, which she might have lost when the accident occurred. 4. For the injuries, the Commissioner awarded Compensation aggregating to Rs. 5,500/-. learned Counsel for the appellant adverted my attention to Railway Accidents (Compensation) Rules, 1950 (Briefly, the Rules, 1950) Rule 6, Sub-rule (3) in part 111 of the Rules 1950 came up for interpretation before the Calcutta High Court in the Case of Union of India v. Adhoc Claims Commissioner and Ors. A.I.R. 1977 Calcutta 39 and then it was held that the word "any" occurring in Sub-rule (3) of Rule 6 of the Rules 1950 could not be read as "all" and therefore, for each injury the Compensation to the maximum limit of Rs. 10,000/- could be awarded. Then it was argued that the same High Court took the same view again and a warded Rs. 10,000/- for such type of injury and therefore, the Compensation of Rs. 10,000/- for each injury should be awarded to the claimant by the Commissioner. I have called upon learned Counsel for the appellant to point out as to what guidelines have been provided by the Calcutta High Court in the Case Union of India v. Adhoc Claims Commissioner (Supra) to award that maximum amount of Compensation. He has stated that no guidelines were provided in the said decision, fn the absence of any guiding principles, it is not safe to rely on the said authority and award the mxaimum Compensation of Rs. 10,000/- for each injury. However, looking to the materials available on record, I feel that the Compensation aggregating to Rs. , 5,500/- for the two fractures resulting into pain and suffering to the Claimant was inadequate. 5. Considering the loss of jewellery, the nature of injury resulting into pain and suffering and the loss of other properly, I feel that total Compensation aggregating to Rs. 15,000/- should have been awarded instead of Rs. 10,000/-. In the result, the appeal is partly allowed. The compen sation is enhanced by Rs. 5000/- only, which shall be paid to the Claimant within a month from the date of production of a certified copy of this order to the Railway Administration. The parties will bear their own Costs.

Author: O Prakash

Kailash Shukla vs Union Of India (Uoi) on 10 September, 1985

Allahabad High Court

ORDER 1. Whilst the first plaintiff was being examined in - chief by Mr. Laud and was deposing to an interview between himself and plaintiffs Nos. 2 and 3 accompanied by a broker named Narayandas Budhwani and the first defendant and one Chandrakant Thakore, he deposed to the terms which were offered by the first defendant in regard to the businesses of Femina Stores and Meghdoot Restaurant which were proposed to be taken by the Plaintiffs under a conducting agreement, along with ac option to purchase the same. The first plaintiff deposed that after those terms were proposed, there was a discussion which went on for about half - hour. The first plaintiff was then put a question, "what happened then ?" At the stage Mr. Shah on behalf of the defendants Nos. 1 to 5 raised an objection to the effect that in view of the plaintiffs' own case in para 7 of the plaint that the agreement in question had been reduced into writing in the form of annexure 'A' to the Plaint, no oral evidence could be permitted to be given having regard to the provisions of Sections 91 and 92 of the Indian Evidence Act. I have heard counsel on both sides at considerable length on that question of admissibility. Mr. Laud's contention on that question was two fold. First he contended that S. 91 barred the leading or oral evidence in cases in which a contract had been reduced into writing only in regard to the "terms" of that contract, and the statement contained in the concluding part of annexure 'A' to the Plaint that the transaction was subject to an agreement to conduct - cum - sale being entered within a month cannot be said to be a term of the contract between the parties. Mr. Laud pointed out that all the other statements contained in annexure 'A' to the plaint were terms of the contract which were in conformity that the oral contract pleaded in para 6 of the plaint. Fro that purpose, Mr. Laud also relied on Explanation 3 to Section 91 of the Evidence Act. The second contention of Mr. Laud was that he was in any event entitled to lead oral evidence for the purpose of showing the circumstances in which the provision relating to the execution of an agreement within a month came to be inserted in annexure 'A' to the plaint under proviso 6 to Section 92 of the Evidence Act which permits any fact to be proved which shows in what manner the language of a document is related to existing facts. 2. I will now proceed to deal with the first contention of Mr. Laud. I may stated at the very outset that neither counsel has cited any authorities before me except authorities in the nature of standard works and dictionary to show that is the precise legal connotation of the expression "terms" in relation to a contract. Turning first to the plaint language of Sections 91 and 92 of the Evidence Act, in my opinion, when those sections refer to the "terms" of a contract they necessarily postulate that there is a contract in existence, the statements contained in which are the nature of terms. As a matter of plain language and grammatical construction I have, therefore, no hesitation in taking the view that the expression "terms" of a contract in Section 91 and the corresponding expression in Section 92, have no application to a statement contained in a writing which is in the nature of a condition precedent to the very formation of that contract. It is the contention of Mr. Shah himself that the concluding words of annexure 'A' to the Plaint are in the nature of a condition precedent to the very formation of the contract, and that condition not having been fulfilled, no contract ever came into existence. As against that, it is the case of Mr. Laud for the plaintiffs that the statement contained in the concluding words of annexure 'A' is a mere expression of a desire as to how the transaction was to go through. In either view of the matter, therefore, it cannot be said to be a term of the contract. In Murray's English Dictionary (1919 edn.) the expression "term" is given as having several meanings some of which have relation to the concept of a period of time with which we are not concerned. One of the meanings which however is applicable to the present case is given as "limiting condition" and the plural of the expression "term" is given as having the meaning of conditions or stipulations limiting what is proposed to be granted or done. It is then stated that the expression is rarely used in the singular, and the meaning of the expression when used in the singular is stated to be "that which is so required or demanded, a condition or pre - requisite of something". The expression "terms" in the plural, therefore, means according to Murray's Dictionary a condition or stipulation which limits what is to be granted or done, and in my opinion, therefore, it cannot apply to something which is in the nature not of a limitation of what is to be done under a contract, but of a condition precedent to the very formation of the contract. In distinguishing between "representations" and "terms" in relation to a contract, Anson on the Principles of the English Law of Contract (22nd edn) at p. 114 appears to give to the expression "terms" the meaning of representation or assurances intended to be an integral part of the agreement. This again would, in my opinion, show that it can have no application to a statement or representation which is in the nature of a condition precedent to the very formation of the contract. On pp. 119 - 120 Anson deals with the distinction in the law relating to sale of goods between a condition and a warranty, but that I am afraid, is not of much assistance for the purpose of ascertaining the meaning of the expression "terms" used in Ss. 91 and 92 of the Indian Evidence Act. In dealing with the question of classification of terms, Chitty on Contracts (23rd edn.) Vol I p. 279 para 595 also deals with the distinction between conditions and warranties and the statements made in that paragraph are, therefore, also not of direct assistance for the purpose of determining the point of admissibility with which I am dealing. This much would, however, follow from the way in which the distinction between conditions and warranties has been dealt with both in Anson as well as in Chitty, that the expression "terms" connotes both conditions as well as warranties and that contracts are normally made up of a number of terms, some of which are regarded as major or essential terms and are, therefore, called warranties. From this also it would follow that the expression "terms" applies to provisions contained in contracts which have already come into existence and are legally enforceable, The proposition that Sections 91 and 92 are not applicable to just anything and everything that is contained in a written contract does not really need authority, but if authority were needed it is to be found in the decision of a Division Bench of the Madras High Court in the case of Venkatasubbiah Chetty v. Govindarajulu Naidu, (1908) ILR 31 Mad 45, where it was held that oral evidence was admissible to show that the party liable on the contract contracted for himself and as the agent of his partners, and that such partners are liable to be sued on the contract though no allusion is made to them in the written contract. In that connection, referring to Ss. 91 and 92 of the Indian Evidence Act, it was stated in the Judgment (at p. 47) that the question as to who the contracting parties were was not one of the "terms of a contract" within the meaning of those sections. I hold that the expression "terms" in Ss. 91 and 92 of the Indian Evidence Act must relate to statements, assertions or representations contained in a written contract which relate to the subject - matter of the contract and to something to be done or not to be done under the Contract, and has no application to a provision in the nature of a condition precedent to the very existence or formation of a contract. On that ground alone, therefore, the objection raised Mr. Shah to the admissibility of oral evidence for the purpose of showing the circumstances in which that provision came to be inserted in the writing annexure 'A' to the plaint must be rejected, and it is really not necessary for me to deal with the second ground which is urged by Mr. Laud to repel that objection. I will, however, briefly deal with the same also as it has been argued at some length. 3. The real question which arises in connection with the same is in regard to the scope and application of proviso 6 to Section 92 of the Evidence Act. It has been contended by Mr. Shah on behalf of defts Nos. 1 to 5 that the said proviso must be limited in its application to cases which fall within one or other of the sections of Chapter VI of the Evidence Act, which follow that proviso viz. Sections 93 to 98 thereof. The scope of Sections 91 to 98 of the Indian Evidence Act, including proviso 6 to Section 92 has been considered by me in the case of Belapur Co. Ltd. v. Maharashtra State Farming Corporation, in which after considering various authorities on the point, I have summarised the legal position in the following terms (para 24) :- "The propositions that emerge from a consideration of these authorities on the subject are as follows : (1) Cases in the English Courts of Chancery have no application to the law of India as laid down in the Evidence Act. (2) In view of the provisions of Section 91 of the Evidence Act, no extrinsic evidence, oral or documentary, can be admitted to prove the terms of a contract, grant or other disposition of property, except the document itself or secondary evidence of its contents when admissible under the relevant provisions of that Act and the court must find out the expressed intention of the parties. The fundamental rule of construction is to ascertain the intention from the words used in the document which is considered to be the written declaration of the mind of the author. (3) If the words are clear in expressing that intention and the language applies to existing facts, extrinsic evidence is not admissible for constructing the deed or for ascertaining the real intention of the parties e.g. surrounding circumstances cannot be considered with a view to holding that a document which is on the face of it as a sale deed was intended to operate as a mortgage. (4) If, however, the words are such that one may suspect that they do not convey the intention correctly or in other words, there is some doubt as to what the words mean or how they are to be applied to the circumstances of the writer or to the facts existing at the time when the document was executed, extrinsic evidence is admissible, both under proviso (6) to Section 92 of the Evidence Act as well as in English Law. In such cases, extrinsic evidence is admissible for the purpose of finding out the meaning of the words which have actually been employed, or what is same thing, in order to translate the language of the document by assigning a definite meaning to terms capable of such explanation or by connecting them with the proper subject - matter, or in other words for the purpose of throwing light on the meaning of the words used with a view to arrive at the true effect of the transaction to which the document relates. The whole object in such cases is to place the Court, as near as may be, in the position of the parties to the document. (5) The subsequent conduct of the parties is, however, not relevant or admissible for the purpose of construing a written document (6) If the language employed in the document is ambiguous, the question of admissibility or otherwise of extraneous evidence would be regulated by the provisions of Section 93 to 98 of the Evidence Act. The plain meaning of the word "ambiguous" is, obscure, or of double meaning (Concise Oxford Dictionary). (7) In view of Section 92 of the Evidence Act, oral evidence can, in no event, be admitted to contradict, vary add to or subtract from the terms of the document, as far as the parties to that document are concerned." I have also held (page 25) that proviso 6 to Section 92 of the Evidence Act is not an exception to the rule laid down in the main part of the section, as a proviso normally is, but it is substantive provision which itself lays down the law relating to the admissibility of extrinsic evidence as an aid to the construction of a document in cases in which it is necessary to find out how the document is related to existing facts. I have further held that it has nothing whatsoever to do with the question of contradicting, varying, adding or subtracting from the terms of the document with which the man part of Section 92 deals, and does not take away or qualify anything that would, but for that proviso, have fallen within the substantive portion of that section. The position in regard to proviso (6) to Section 92 of the Evidence Act in view of what I have held in Belapur Co.'s case is that extrinsic evidence is admissible under that proviso for the purpose of finding out the meaning of the words which have actually been employed, or what is the same thing in order to translate the language of the document by assigning a definite meaning to terms capable of such explanation with a view to arrive at the true effect of the transaction in question in cases in which the words used are such that one might suspect that they do not convey the intention correctly or in other words, there is some doubt as to what the words mean or how they are to be applied to the circumstances of the writer or toe the facts existing at the time when the document was executed. The words "subject to an agreement to conduct - cum - sale to be entered within a month" used in the concluding part of annexure 'A' to the plaint in the present case are capable of two possible meanings :one that the execution of a written agreement within a month was a condition precedent to the very formation of the contract: and that the other that it is the mere expression of a desire as to how the transaction was to go through. It is true that in English Law the words "subject to a contract in writing" or equivalent words have generally been construed by courts in England to mean that the agreement is of no legal effect until a written document is executed (Chitty on Contracts (23rd Edn.) Vol.I p. 79 , and Anson on the Principles of the English Law on Contract (22nd Edn.) pp. 53 - 54 and Cheshire on the Law of Contract (7th Edn.) p. 33). That, however, is not an inflexible rule. In fact, in the passage from Cheshire where this point is dealt with, it is stated (at p. 33) "Unless there is cogent evidence of a contrary intention, the courts, construe these words so as to postpone the incidence of liability till a formal document has been drawn up and signed," and (at p. 34). "The task of the Courts is to extract the intention of the parties both from the terms of their correspondence and from the circumstances which surround and follow it, and the question of interpretation may thus be stated . Is the preparation of a further document a condition precedent to the creation of a contract or is it an incident in the performance of an already binding obligation ?" Referring to an observation of Lord Wright it is further stated in Cheshire (at p. 36) that Judges would always seek to implement and not to defeat reasonable expectations though they could not invent a contract which the parties had been too idle to make for themselves. It is, therefore, clear that the position in English law is that even in cases in which the expression used in a written contract is "subject to a written contract" or other equivalent expression, it would be open to the Court and indeed, it would be its duty to extract the intention of the parties and to see whether there is cogent evidence to indicate that the parties intended a binding contractual obligation to come into existence even before a writing was executed. It was sought to be contended by Mr. Shah that whatever might be the position in English Law, the powers of the court in that behalf would be limited in this country by the statutory provisions of Sections 91 and 92 of the Evidence Act , but I see no reason why they should be so limited in view of the terms of proviso (6) to Section 92 of the Evidence Act which is, inter alia, intended to meet precisely such a situation. In fact, as indicated in my judgment in Belapur's Co.'s case (para 24) the position in regard to the admissibility of extrinsic evidence under proviso (6) to S. 92 of the Evidence Act as well as in English law appears to be the same. Mr. Shah on behalf of defendants Nos. 1 to 5 relied strongly on the decision of the Privy Council in the case of Harichand v. Govind, AIR 1923 PC 47 where a question similar to the question which arose before me arose before the Privy Council, the Plaintiff - purchaser contending that the two documents which formed the foundation of the suit constituted a completed contract and the defendant - vendor urging that it was only in the nature of a provisional agreement conditional on the preparation of a formal document. In the trial Court, the defendant had attempted to tender some oral evidence to show that actually took place on the occasion that the parties entered into the agreement relied upon by the plaintiff, but the trial Judge had refused the application in a single sentence in these words :"I reject that evidence : irrelevant and inadmissible". The Privy Council took the view that the ruling of the learned trial Judge was right and that under Section 92 of the Indian Evidence Act the evidence sought to be led was rightly rejected. It is however, clear from the judgment of the Privy Council that the statement in the judgment was based practically on a concession in the course of the argument before them for it has been stated (at p. 48, col. 2) that no attempt was made on appeal to take exception on behalf of the defendant to that part of the trial Judge's order. it is for the reason that with that brief observation, the Privy Council did not thing it necessary to refer further to that point. Under these circumstances, I do not consider the decision of the Privy Council in Harichand's case on which Mr. Shah has relied as his "trump card" to be a decision on the point which arises before me. In the event of my being wrong in the view which I have taken above, viz. that the statement contained in the concluding part of annexure "A" to the plaint is not one of the "terms" of the contract between the parties. I would still hold extrinsic evidence to be admissible under proviso (6) to Section 92 of the Indian Evidence Act for the purpose of showing the circumstances in which the said writing came to be prepared and executed, and this statement found place therein, with a view to arrive at the true effect of the transaction to which the document relates. I, therefore, overrule Mr. Shah's objection. 4. Order accordingly.

P.B. Bhatt And Ors. vs V.R. Thakkar And Ors. on 27 July, 1971

Bombay High Court

Gujarat High Court Case Information System Print SCA/12333/2009 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 12333 of 2009 With SPECIAL CIVIL APPLICATION No. 12334 of 2009 ========================================================= MAKWANA LALSINH RAMSINH & 21 - Petitioner(s) Versus STATE OF GUJARAT & 4 - Respondent(s) ========================================================= Appearance : MR SATYAM Y CHHAYA for Petitioner(s) : 1 - 2, 2.2.1, 2.2.2,2.2.3 - 19.- for Petitioner(s) : 0.0.0, 0.0.0,0.0.0 GOVERNMENT PLEADER for Respondent(s) : 1, None for Respondent(s) : 2 - 5. ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 12/01/2010 ORAL ORDER At the request of Mr.M.R. Mengdey, learned Assistant Government Pleader and so as to enable the State Government to file Affidavit-in-reply, S.O. to 3/2/2010. Affidavit-in-reply, if any to be filed on or before 21/1/2010. Rejoinder, if any, to be filed on or before 29/1/2010. [M.R. SHAH, J.] rafik     Top

Author: M.R. Shah,&Nbsp;

Makwana vs State on 12 January, 2010

Gujarat High Court

JUDGMENT Devadoss, J. 1. Defendants Nos. 1 to 3 mortgaged their property on 24th April 1912, by two deeds in. favour of Defendants Nos. 5 and 6 and Defendant No. 7. First defendant executed a third mortgage in favour of the plaintiff on 5th September 1916, Defendants Nos. 5 and 6 brought O.S. No. 3 of 1908, impleading the 7th defendant second mortgagee and obtained a mortgage decree. The third mortgagee, the plaintiff, was not a party to that suit. The property was sold in October 1919 and was purchased by the 4th defendant for Rs. 20,000. The 1st and 2nd mortgagees Defendants Nos. 5 and 6 and 7 were paid the amount due on the mortgages. Eighth defendant who had obtained a money-decree against Defendants Nos. 1 to 3 attached the surplus amount in Court and was paid by a cheque for Rs. 4,585. The plaintiff attempted to prevent the 8th defendant from cashing the cheque, but his attempts were of no avail. The money now in Court is about Rs. 1,000. The plaintiff has brought this suit on his mortgage and prays that the amount due to him on his mortgage may be paid out of the sum in Court and that the 8th defendant be directed to pay back into Court the sum drawn by him and that in the alternative the mortgaged property be sold for satisfying his debt and also prays for a personal decree against Defendants Nos. 1 to 3. The District Munsif gave a mortgage decree in favour of the plaintiff and held that the plaintiff was entitled to the surplus in Court realized in execution of the decree obtained by Defendants Nos. 5 and 6 and that the 8th defendant must refund the amount drawn by him. Against this decree 8th defendant appealed. On appeal the Subordinate Judge held that the plaintiff could only proceed against the property mortgaged to him and purchased by the 4th defendant and the proceeds of the sale hold in execution of the decree in favour of the Defendants Nos. 5 and 6 were not subject to the mortgage right of the plaintiff and the amount remaining after meeting the claims of the 1st and 2nd mortgagees, Defendants Nos. 5, 6 and 7, was the property of the mortgagor and as such could not be proceeded against by the plaintiff. With regard to the amount in Court he held that it would be available to the plaintiff in case he is unable to realise his debt by the sale of the hypotheca. Fourth defendant has preferred this appeal. 2. The contention of Mr. Varadachari is that the sale proceeds in Court represent the mortgaged property and the plaintiff is entitled to proceed against the money in Court after the claims of the prior mortgagees have been satisfied. The surplus proceeds of the sale are sufficient to meet the claim of the plaintiff. It is urged that inasmuch as the plaintiff was not a party to the suit of the prior mortgagees, his right to proceed against the property is unaffected and the proceeds in Court have been realized by the sale of the mortgaged property and the lien of mortgage right against the property attaches itself to the money in Court. It is also urged that the plaintiff has an option either to proceed against the mortgaged property by bringing it to sale or to proceed against the surplus sale proceeds in Court if the proceeds are sufficient to satisfy his claim. On the other hand, Mr. K.V. Krishnaswami Iyer contends that the remedy of the puisne mortgagee who was not a party to the suit of the prior mortgagee is only against the mortgaged property. He could either redeem the prior mortgagees? or ask for the sale of the property and bring the property to sale ; but he cannot claim to be paid out of the surplus sale-proceeds in Court as they are the property of the mortgagor. He further contends that the sale was subject to the encumbrance of the plaintiff and what was sold represented the interest of the prior mortgagees as well as that of the puisne mortgagee together with the equity of redemption and that the puisne mortgagee should only look to the purchaser for payment of his mortgage debt and has no claim against the surplus in Court as his mortgage has been included in the sale in Court auction. 3. What are the rights of the puisne mortgagee who was not a party to the suit and the execution proceedings under the prior mortgage ? If the prior mortgagee makes the puisne mortgagee a party and brings the property to sale, it is well settled that the puisne mortgagee could only proceed against the proceeds in Court after satisfying the claim of the prior mortgagee. In other words, his right of suit against the mortgagor is taken away by his being made a party to the suit of a prior mortgagee. Where a puisne mortgagee is not made a party to the suit of the prior mortgagee, does the puisne mortgagee lose any of his rights which he had as a mortgagee? "When property is sold under a mortgage decree, what is sold is the interest of the mortgagor at the date of the mortgage on which the suit is brought. If the subsequent mortgagees are made parties to the suit, the sale in execution, of the decree would convey the interest of the mortgagor as it was at the date of the suit. In other words, what is sold under such a decree is the property of the mortgagor and the proceeds of the sale have to be applied in discharge of all the encumbrances and the mortgagees have to be paid in the order of priority. But the sale cannot affect the title of a mortgagee who has not been made a party to the suit. 4. Section 75 of the Transfer of Property Act says that every second or other subsequent mortgagee has, so far as regards redemption, foreclosure and sale of the mortgaged property, the same rights against the mortgagor as against such prior mortgagee or mortgagees and the same rights-against the subsequent mortgagees as he has against his mortgagor. A puisne mortgagee has the right to redeem the prior mortgage or mortgages and has the right to bring the property of the mortgagor to sale and such a sale will be subject to the right of the prior mortgagee or mortgagees. A prior mortgagee cannot redeem the puisne mortgagee without his consent but if he acquires the equity of redemption, he will be entitled to redeem the puisne mortgagee. The plaintiff was not a party to O.S. No. 3 of 1918 and: the sale in execution of the decree in that suit cannot take away the rights of the plaintiff as mortgagee. The contention of the appellant is that the plaintiff has an option either to proceed against the mortgaged property by bringing it to sale or to proceed against the sale proceeds in Court after satisfying the claims of the prior mortgagees. The objection of the 8th defendant (respondent) is that the security for the debt cannot attach itself to the sale-proceeds in Court merely by the volition of the plaintiff; that the plaintiff's remedy is against the mortgaged property; and that when that mortgaged property was sold, it was sold subject to the plaintiff's encumbrance and he could not by making an election proceed against the money in Court realized by sale in which his own mortgage was included. 5. The contention that when property is sold in execution of a mortgage decree, it is sold subject to all the mortgages on it, is based upon two stray observations in Chinnu Pillai v. Venkatasamy Chettiar [1916] 40 Mad. 77. Mr. Justice Coutts-Trotter (as he then was) laid down two principles as governing the cases. The first is that what passes to a mortgagee is a right to sell the mortgagor's interest as it stood at the date of the mortgage subject only to this, that in his suit he must make all subsequent mortgagees parties if he wishes the sale to be free of their encumbrances. The other principle is that of any number of mortgagees, the later can always redeem the earlier, but cannot be compelled to do so and the earlier cannot redeem the later except by consent. Mr. Justice Srinivasa Iyengar in the course of his judgment observed: "To the suit of the second mortgagee the plaintiffs were not made parties. The second defendant's position is, therefore, that of an assignee of the first two mortgages and of the equity of redemption subject to the charge of the plaintiffs." At page 89 he further observed: The second mortgagee is entitled to, and must bring a fresh suit against the purchaser in the first sale to sell the property to the satisfaction of the second mortgage-debt subject to which the first purchaser took." Mr. K.V. Krishnaswami Iyer contends that these observations make it quite clear that the sale in execution of a mortgage-decree is subject to the mortgage in favour of a puisne mortgagee and, therefore, the puisne mortgagee can only proceed against the property in the hands of the auction-purchaser and cannot proceed against the sale-proceeds in Court if a surplus remains after satisfying the claims of the prior mortgagee and that if it was possible to hold that the puisne mortgagee could proceed against the surplus assets in Court, the learned Judges would have said so. I do not think this is the correct way of interpreting the decision. The question whether the puisne mortgagee could proceed against the assets in Court was not raised before them. Nor were they called upon to consider whether the puisne mortgagee had any other right than that of proceeding against the mortgaged property. The question in that case was whether a puisne mortgagee could bring the property to sale after it was sold in execution of a decree obtained by a prior mortgagee. Mr. Justice Srinivasa Iyengar sets out the rights and liabilities of the mortgagees at the end of his judgment and the 7th principle he lays down is as follows: "If the first mortgagee sues first without making the second mortgagee a party, the second mortgagee is not affected and can bring his own action for sale making the mortgagor a party, if there had been no sale in the first mortgagee's suit or if there had been a sale, making the purchaser a party in his capacity of the ultimate owner of the equity of redemption." Reliance is also placed upon Mula Veetil Seethi v. Achuthan Nair [1911] 21 M.L.J. 213. In that case a Full Bench of this Court held that the second mortgagee was entitled to the same rights as the first mortgagee with reference to his security having regard to the nature of his mortgage. After an exhausitve review of a number of decisions, certain propositions were considered as established. "(1) A second mortgagee is entitled to the same' rights as the first mortgagee with refer ence to his security, having regard to the nature of the mortgage. (2) The purchase of the equity of redemption after the first mortgage and the second mortgage both stand on the same footing with respect to their respective rights against the first mortgagee when they have not been impleaded in the suit instituted by him on his mortgage. (3) Those rights are unaffected by the suit of the first mortgagee to which they are not made parties and the decree passed therein and the sale made in pursuance thereof. (4) The purchaser in such suit, whether it is a first mortgagee or a stranger, does not acquire the rights of the mortgagor as at the date of the first mortgage but only those that subsist in him at the date of the suit." This decision does not support the contention that the only remedy of the puisne mortgagee is against the mortgaged property. The words used by Mr. Justice Srinivasa Iyengar in Chinnu Pillai v. Venkatasamy Chettiar [1916] 40 Mad. 77 subject, to the charge of the plaintiffs at page 80 can only mean subject to such rights as the puisne mortgagee has. It does not mean that the property is sold subject to the charge in favour of the puisne encumbrancer. The expression is not tantamount to saying that the purchaser has undertaken to pay the subsequent encumbrancer but means that the purchaser buys the property subject to the rights which a puisne encumbrancer has in regard to that property. In applying case law to the case before us, care should be taken not to take one or two sentences of a judgment, apart from their setting and give to them a meaning which the Judge who delivered that judgment did not intend to convey or did not think it would be capable of conveying. It should also be borne in mind when the decisions are sought to be applied to new facts, to see in what connexion and with reference to what facts the decisions or rulings were given. The contention of Mr. Krishma-swamy Iyer is that these two decisions support his contention by their silence as to the right of the puisne mortgagee to proceed against what is realized in execution of a decree obtained on a prior mortgage. I do not think that the Judges who decided them had that point argued before them nor do I think they intended to lay down the broad proposition that the puisne mortgagee's right is only to proceed against the property in the hands of the purchaser. 6. The facts in Barhamdeo Prasad v. Tarachand [1914] 41Cal. 654 are these: Certain immovable property was mortgaged in May 1887 to the appellants in that case. The same property was mortgaged in September 1887 to the respondents. Again in July 1889 the property was mortgaged to the appellants. The appellants brought a suit in 1890 impleading' the respondents and obtained a decree in execution of which the property was sold. After satisfying the decree the sale proceeds were deposited in Court. The appellants obtained a decree on their mortgage of 1889 without impleading the respondents as parties and in execution of that decree, without notice to the respondents they drew out of Court the surplus proceeds of the former sale. The respondents brought a suit in 1900 and claimed the money in Court. The question was whether that still was within time. Their Lordships of the Privy Council held that Article 132 of the Limitation Act appplied and that "The surplus sale-proceeds in execution of the previous mortgage-decree represented the security which the plaintiffs had under their mortgage of the 19th September 1887, and did not cease to represent that security owing to the fact that Ram Berhamdeo Prasad and Ram Sumran Prasad had wrongfully and in fraud of the plaintiffs drawn them out of the Court in which they had been deposited." They also held that they were not against the view that there was a charge in favour of the plaintiffs in the hands of the appellants. Though the respondents were parties to the suit of the first mortgage, they did not take the trouble to appear, Notwithstanding that, their Lordships of the Privy Council held that the sale-proceeds in Court represented the security which they had and therefore, they were entitled to proceed against the surplus money in Court. This decision was on appeal from the decision in Berhamdeo Prasad v. Tarachand [1906] 33 Cal. 92 wherein two Judges of the Calcutta High Court differed as to the right of the puisne mortgagee to proceed against the assets realized in execution of a decree in a prior mortgagee's suit, and Sale, J., agreed with Henderson, J., in holding that when property is sold under a decree obtained by the first mortgagee the puisne encumbrancer has a right to follow the surplus sale proceeds after the decree-holder's claim has been satisfied. These two cases lay down that the rights of the subsequent mortgagee who is not a party to the mortgage-decree under which the property is brought to sale is entitled to be paid out of the surplus sale proceeds, if any, remaining after the decree-holder is paid. In Gobind Lal Roy v. Ramjanam Misser [1894] 21 Cal. 70 Lord Macnaghten in delivering the judgment of their Lord-ships observed in dealing with the contention of the counsel for the appellant that the puisne mortgagee should only look to the proceeds realized by the sale under a decree obtained by a prior incumbrancer: "That however, in their Lordships' opinion is not the necessary consequence of a sale under a decree obtained by a prior mortgagee against the mortgagor in a suit to which the puisne encumbrancers are not parties." It follows from this that the remedy of the puisne mortgagee against the property is not taken away by a sale. 7. It is well settled now that the puisne encumbrancer who is not a party to a mortgage decree under which the. sale is held can bring the property again to sale; and from the ruling in Gobind Lal Roy v. Ramjanam Misser [1894] 21 Cal. 70 it is also clear that the right of such mortgagee can also be enforced against the sale-proceeds in Court. After the consideration of a number of cases on the point, the Full Bench of the Calcutta High Court held in Debendra Narain Roy v. Ramratan Banerjee [1903] 30 Cal. 599 that a puisne mortgagee was entitled to sell the property secured by his mortgage where the property has been sold in execution of a decree obtained by the first mortgagee in a suit to which the puisne mortgagee was not a party. 8. In Padmanabh Bombshenvi v. Khemu Komar Naik [1894] 18 Bom. 684 the facts were these : P held a mortgage on a certain land belonging to the 1st defendant. The mortgage was not registered. M obtained a registered mortgage on the same property from the 1st defendant. M obtained a decree upon this mortgage and applied for sale. F intervened but his claim was rejected on the ground that his mortgage was an unregistered mortgage. The land was sold by auction to the 4th defendant and the proceeds of the sale were applied partly in satisfaction of M's claim and a further sum. of Rs. 164 was paid to one S who had obtained a money-decree against the mortgagor Defendant No. 1. The balance of Rs. 103 was paid into Court and subsequently returned to No. 1. F sued for payment of his mortgage-debt out of the proceeds of sale or from defendants. The lower Court held that the plaintiff could not be called upon to refund the money which had been paid to him out of the proceeds and the plaintiff had a cause of action only against the mortgagor and not merely for the balance of Rs. 103-8-11 but for the whole claim. The High Court held that F was in the position of a puisne mortgagee and as second mortgagee he had a right over the balance in Court. Sargent, C.J., in delivering judgment of the Court observed: Although plaintiff's earlier mortgage was postponed to that of Defendant No. 2 by reason of its non-registration, the plaintiff still had the same rights over the balance as if he had been the second mortgagee in point of date. 9. The proceeds which are paid into Court after satisfying the first encumbrance become payable first to the other encumbrancers (if any) and then to the mortgagee, and so it is virtually provided by Section 97 of the Transfer of Property Act which directs that the residue is to be paid to the person proving himself to be interested in the property sold.' The learned Chief Justice relied upon the decision of the Privy Council in Raja Kishendatt Ram v. Raja Mumtaz Ali Khan [1880] 5 Cal. 198 to the effect that when the sale is effected under a power of sale in the mortgage-deed, the mortgagee exercising such power is a trustee so far as the surplus proceeds are concerned and held that the Court was not in a better position than he When the mortgagee exercises his power of sale, he sells it free of encumbrances and the purchaser gets it. free of all subsequent encumbrances But when a Court sells the property under a decree to which the subsequent mortgagee is not a party, it does not sell it free of the subsequent encumbrances. But that does not alter the principle of the decision. The attaching creditor in that case could not keep his hold on the money when the mortgagee came along, because the mortgagee had a prior claim by reason of his mortgage right. The mortgage right against the property is available against the proceeds into which it was converted. His right is only subject to that of the prior encumbrancer, but he has a prior claim over nay simple money creditor and the mortgagor. A simple money creditor who attaches the money in Court attaches it as the property of the mortgagor and the mortgagor certainly is not entitled to the money in Court in preference to the mortgagee whose debt he is liable to discharge. 10. The facts in Karan Sing v. Ishtiaq Husain [1921] 43 All. 268 are: A mortgaged the same property first to B and then by the separate mortgage deeds to C. B and C both sued on the mortgages, each party without impleading the other, and obtained decrees. B's decree was executed first. The mortgaged property was sold and was purchased by K.B's mortgage was paid up and considerable surplus money remained which was deposited in Court. C then endeavoured to execute his decree against the surplus sale proceeds. He failed and the money was ultimately withdrawn by the mortgagor. C next proceeded with the execution of his decree against the property in the hands of K, the auction-purchaser, and K in order to retain possession paid up the amount of his decree. He then sued the representative of A to recover and the amount was paid. A Bench of the Allahabad High Court held that K was entitled to a decree. The learned Judges observed at page 269: "In our opinion upon the sale of the property the security held by Mahabbat Bahadur and others was transferred to the surplus sale proceeds which represented the mortgaged property." And they go on to say: "It cannot be said that the plaintiff purchased the property subject to the subsequent mortgage held by Mahabbat Bahadur and others. The sale was in execution of a decree obtained upon the prior mortgage held by Khurshed-un-nissa and others. The only defect in the plaintiff's title was that it was still open to the second mortgagees who had not been made parties to the first mortgagee's suit, to redeem the prior mortgage, but it cannot be said that the plaintiff did not acquire the property itself, but only such rights as remained in the mortgagors and subject to the subsequent mortgages." This case is an authority for the position that the mortgagee's right to proceed against the surplus proceeds in Court is unfettered if he was not a party to the decree in execution of which the sale was effected. No doubt in that case it was found, that the surplus proceeds were sufficient to meet the claims of the subsequent mortgagee, but that was not the ground upon which the learned Judges held that the mortgage right attached to the proceeds in Court. 11. It is urged by Mr. Krishnaswami Iyer that the Bombay and Calcutta decisions should be read in the light of the previous decisions of those Courts, His contention is that it was considered at one time that the first mortgagee alone could bring the property to sale and not any subsequent mortgagee and such sale was clear of all encumbrances and they naturally took the view that then the property was sold in execution of a decree obtained by a prior mortgagee, the puisne mortgagees could only look to the sale proceeds to satisfy their decrees. I am unable to accept this contention. Whatever might have been the view before, the law is settled as to the right of the puisne mortgagee to proceed against the mortgaged property sold in execution of a mortgage decree obtained without his being a party to it, and it cannot be said that the learned Judges overlooked such a well-established principle and laid down the ruling that the subsequent mortgagee could only look to the sale proceeds realized in execution of the decree of a prior mortgagee for the satisfaction of his claim. 12. When the mortgaged property is sold and is converted into money, the right of the puisne mortgagee is not thereby lost. I am assuming in this connexion that he was not a party either to the suit or to the execution proceedings in which the: assets were realized. The property was his primary security and when that is converted into money, his security is not thereby lost, but is transferred from the property to the sale-proceeds, and his right is only subject to that of a prior-mortgagee or mortgagees. The objection to the puisne mortgagee proceeding against such assets is that the assets represented only the value of the equity of redemption remaining at the date of the sale and, therefore, the puisne mortgagee cannot proceed against the proceeds in Court. This argument overlooks the fact that the equity of redemption, whatever be its value, is liable either in the hands of the mortgagor or of a purchaser from him to satisfy the claim of the mortgagee. Suppose two items of property are mortgaged to two persons: first to A and then to B and if A brings a suit on his mortgage without impleading B and brings one of the items to sale and some surplus remains after satisfying A's decree, can it be said that B cannot proceed both against the other item not sold in execution of .A's decree as well as the proceeds in Court,? Take another instance: if a village or a large estate is mortgaged first to A and then to B, if A brings a suit and obtains a decree on his mortgage without impleading B and asks for a sale of the property, the Court would sell such portion of it as would be sufficient to meet A's claim And if after a portion of the property is sold and A is satisfied and surplus remains, can it be said that B cannot proceed against the rest of the property as well as the surplus money in Court ? His right is not in any way affected by the state in which he finds the property after the prior mortgagee's claim is satisfied He could certainly proceed against the rest of the property covered by his mortgage as well as against the money in Court. The contention of Mr. Krishnaswami Iyer is that he cannot have a right to both the property as well as-against the surplus money in Court in this case. But I do not think there is any objection in principle to the plaintiff proceeding both against the mortgaged property in the hands of the 4th defendant as well as against the surplus funds in Court. Reliance is placed upon the observation of Mr. Ghose in his well-known book of Mortgages, page 292, 5th Edition, for the contention that the property must be lost to the subsequent encumbrancer so as to enable him to proceed against the surplus sale proceeds: It is hardly necessary to point out that if the mortgaged property is converted into money under circumstances which would prevent the mortgagee from following such property, security would attach to the money unless the conversion is attributable to the default of the mortgagee." Section 73 gives the right to a mortgagee to proceed against the surplus sale proceeds of a sale held on account of default of payment of revenue, provided the default was not occasioned by the mortgagee. This section applies only to sales for arrears of revenue and does not restrict in the case of sales under mortgage decrees the right of the mortgagee to the proceeds in Court, and cannot be interpreted as laying down the principle that it is only when the property cannot be pursued by the mortgagee that he can proceed against the money in Court. Reference is also made to a passage in Gour's Book on the Law of Transfer in British India, Section 1683. Referring to Section 73 of the Transfer of Property Act, he says the section is inaccurately worded, but it is evidently intended to provide only for cases in which the sale is made free from all encumbrances. In any other view, the mortgagee would have both the surplus as well as the right to follow the land in the hands of the purchaser and this confers on the mortgagee an additional security merely because the mortgaged property is brought to sale. It is difficult to see how it can be said that the mortgagee gets additional security when the property mortgaged to him is sold and the proceeds are field in Court. The property mortgaged to him was liable for his debt and if the property is sold and the sale-proceeds are held in Court it cannot be said that he gets additional security for his debt. Supposing in this case the plaintiff brings the property to sale and in consequence of the fall in price or the state of the money market the mortgaged property goes to the prior encumbrancers or the price offered is just sufficient to cover the claim of the prior mortgagees, can it be said that he is to be without any remedy ? The surplus sale proceeds in Court cannot become the property of the mortgagor till all the mortgages are paid off. The sale proceeds in Court cannot be said to represent the equity of redemption for the whole of the property is security; the so-called equity of redemption is not merely the right of the mortgagor to redeem the property, but it also represents the difference between the value of the property and the amount due on the mortgage, and the difference in value cannot be absolved from the liability for the mortgage amount. That being so, it is difficult to see how the sale proceeds in Court in this case can be said to be additional security for the debt of the plaintiff. When the property was sold the 4th defendant purchased it, probably at its market value. But his title to the property is liable to be defeated when the plaintiff brings a suit to enforce his remedy under the mortgage. The question is not what the purchaser pays for the property. Whether he pays full value or not he only buys the interest of the mortgagor and the property which he buys is security for the debt of the puisne mortgagee who was not a party to the decree under which he purchased. Whatever may be the number of mortgages created on the property, the mortgagor can only have the surplus after meeting the claims of all his mortgagees. Supposing a mortgagor mortgages the property to three different persons, and supposing the first mortgagee brings the property to sale and the property is sold for a very large sum and after satisfying the claim of the first mortgagee the surplus money is drawn out by the mortgagor, and supposing the second mortgagee who was not a party to the prior suit brings the property to sale without impleading the third mortgagee and sells the property and is not able to realize his debt in the second sale after meeting the claim of the first mortgagee, what is to become of the third mortgagee? Is the third mortgagee to go without any remedy for the simple reason that the mortgagor has wiehdrawn the money from Court which was subject to the mortgage rights of the second and third mortgagees? To hold that the mortgagor is entitled to the surplus money in Court in such a case would be going against the law of mortgages under which the property as well as cash into which the property is converted is security for the debt due on the mortgages. In this case, therefore, there is no such thing as additional security by the mere fact that the property was sold and the sale proceeds are more than sufficient to meet the claims of the prior mortgagees. There is no warrant in law for holding that in such a case as this that the sale proceeds are additional security, After a careful consideration of the cases quoted at the Bar, "I could not find any thing in equity or in law which militates against the right of the puisne mortgagee in a case like this to proceed both against the property in the hands of the purchaser as well as against the sale-proceeds in Court. It is not necessary in this case for the plaintiff to proceed against the property, as the surplus proceeds in Court were more than sufficient to satisfy the claims of the plaintiff under the mortgage. The 8th defendant who withdrew the money from Court must pay it back as the amount was subject to the mortgage rights of the plaintiff, and the 8th defendant who obtained only money-decree against the mortgagor could not claim any preference over the plaintiff. 13. It is contended for the respondent that Order 34, Rule 13, can only apply to cases where all the mortgagees are parties. Under the Civil P.C., Order 34, Rule 1, all persons having an interest on the mortgage security or in the right of redemption should be joined as parties. Mr. Krishnaswami Iyer's contention is that Order 34, Rule 13, could only apply to cases where a subsequent encumbrancer is party to the suit and to the decree in execution of which the sale proceeds have been realized, and that when a puisne mortgagee is not a party to the suit Rule 13 cannot apply. No doubt Order 34, Rule 1. requires all Mortgagees to he brought on record, but that would not take away the right of puisne mortgagee to claim any amount in Court on the ground that he has an interest in the mortgaged property. For the last clause of Rule 13(1) says: "The residue (if any) shall be paid to the person proving himself to be interested in the property sold.'' It does not say that such person should be a party to the suit. All it says is that after meeting the legitimate demands mentioned in Clauses 1 to 4 the balance shall be dealt with in a certain way and the last clause does not restrict it to persons who are parties to the suit in which the assets are realized. 14. Mr. Krishnaswami Iyer next contended that in this case the property was sold subject to the mortgage. Exhibit II, the sale certificate, does not support this contention. Though the hypothecation in favour of the plaintiff is mentioned therein it is distinctly stated that that hypothecation is subsequent to that of the plaintiffs in that suit and does not affect them. It is difficult to see how this can be construed into a sale subject to the encumbrance in favour of the plaintiff. What was sold under the decree in O.S. No. 3 of 1918 was the right of the mortgagor as it stood at the date of the second mortgage. This is clear from all the authorities and it is unnecessary to go over the ground again. Exhibit II cannot be construed into meaning that the sale was subject to the encumbrance in favour of the plaintiff. 15. Another point was urged on behalf of the respondent, that the present appeal is not by the plaintiff but by the purchaser and, therefore, incompetent. It is urged that the purchaser who is the 4th defendant has no right to come in and ask that the money in Court be paid to the plaintiff. Inasmuch as the plaintiff is also a party to the appeal this Court has power to pass a proper decree in a case like this. It is unnecessary that the 4th defendant should first pay up the amount due to the plaintiff on his mortgage and then proceed against the 8th defendant and Defendants Nos. 1 to 3 as was done in Karan Singh v. Ishtiaq Husain [1921] 43 All. 268 This will only multiply proceedings in Court. The Court has power in order to avoid further litigation, to give a decree in favour of the plaintiff. 16. The last contention is that the 8th defendant could not be compelled to pay into Court the amount drawn by his as there was neither a charge nor a trust in favour of the plaintiff. I have already held that the plaintiff had a mortgage right over the money in Court. The 8th defendant is bound to pay back the money into Court which was subject to the mortgage right of the plaintiff. 17. In the result I set aside the decree of the Subordinate Judge and restore that of the District Munsif. The 8th defendant will pay the costs of the 4th defendant in this Court as well as in the lower appellate Court. The other parties will bear their own costs.

Author: Devadoss

K.N. Krishnaswami Bhagavathar vs N.A. Thirumalai Iyar And Ors. on 21 October, 1924

Madras High Court

Gujarat High Court Case Information System Print CA/8322/2010 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL APPLICATION - FOR CONDONATION OF DELAY No. 8322 of 2010 In LETTERS PATENT APPEAL (STAMP NUMBER) No. 1014 of 2010 To LETTERS PATENT APPEAL No. 1772 of 2010 ================================================= BARIA SOMABHAI KALABHAI - Petitioner(s) Versus UNION OF INDIA & 2 - Respondent(s) ================================================= Appearance : MR RAMNANDAN SINGH for Petitioner(s) : 1, DS AFF.NOT FILED (N) for Respondent(s) : 1 - 3. ================================================= CORAM : HONOURABLE THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA and HONOURABLE MR.JUSTICE ANANT S. DAVE Date : 31/08/2010 ORAL ORDER(Per : HONOURABLE THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA) Fresh notice on the respondents. Direct notice permitted. If no notice is served, on the next date, the case may be dismissed for non-prosecution. Post the matter on 16th September 2010. [S.J. MUKHOPADHAYA, C.J.] [ANANT S. DAVE, J.] (swamy)     Top

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

Baria vs Union on 31 August, 2010

Gujarat High Court

Secretary in Government IN THE HIGH COURT OF KAR'NATAK:'5 M f, BANGALORE" % % DATED "mxs THE 2131" DAY 0P%é<:T0B g:§§%200s% BEFOKi¥;". % A k THE HOWBLE MR; BYE VAV'AAREDDY WRIT PET'ITI(}N1$SoV._2}i.§}C}S o1?;_é;i'x>5%k(s-R) cm WRIT «§I-rrmom 01%: 2005 (SR) % _ % Smt. " h it) Late Goisindaraj _ " _ " Cfo G- Pushfpa Raj V R6td,;N'ur:st:ry Hefpcr " " _Resi_<__fi*ng .'.;t No.4, '~._ Ga.rdtm,_ Lirngziya Paiya j.I.I'1fi'a(_>ft>'i*, 003 PETITIONER (By...$hfi.VM; éF.'ifirlhasamihi and Shri. M. P. Szikanih, Advdcates) ' Education Department Primary & Secendary Education Dr. Ambedkar Vwdhi Bangalum-S60 001 IN W.F.No.2I9642'2O05 BETWEEN: Stat. M. Esthm" Rani 69 years, Die. M Manuel V . Retired Nursery School Teacher _ _V Residing atblo. 62 " South Gilberts, Marikupf-Jam _ K. G. F, Kular District V '_ _ VA .__ _.".'.~--_PE'I'I'FAIONER (By Shri. M. s. Parlhasara'1hiV'a.Argd r'a%.I?.j%[%sri::amh, AND: 1. The t0"'C':'*:13v¢%!'!1;'izeni Eduéafion Défi-:r3imf_. % 5 Primziry & E.;_3'm;a.£ion Ba_ngalore¥§6{} 301 2, The C"umih2.issiun¢v:f'lBr Public ' , V Instnxetiam 1*~¥s_vo: Public Ofiices : AK. Bangalore-S60 om _ 3. The Director uf Pubiic Instruction u ?_{olat'i)islricL Kolar Block Educaiional Officer K. G. F. Range K. G. F. Kolar Diflrict A S. The. Secretary & Curmspondtsrzt The Bhamth Gold Mines 6 "L52" Schuul for the purposes of pension and to declare eligible for payment of pension ii provisions (ref the Triple «. (hereinafter referred to as vghc «guiess / ii been rejected, the pctili0§1§:1*s_ ..Courti.iiii 2. The pgtiiiungr was a retired helper in a in the wcond of these is mntcndui that Aided in which thcst: petitioners were _workiifrg,Vi' rt:;{:=civ"i_ng"'i maintenance grants from the i i "vC'x¢}vau"ii3ri1"t:nl"t--:-grid to a consolidates} amuunt as pension, ' Schuois and High-Schuols, receiving msiii.£cna;1csViisI"t: aligiblc for payment of pension under the TBS H ii if services rendered by the petitioners nut having been talL£:'r:"'i into consideration fur payment of such pension is T "arbitrary and Ehcreiism, the pctitioncrs are before this Court. 6 3. T113 Cuunsei for the petitioner would corzjliéiidi V' pciilitsncr, in the first of these cases, fiéas 'appoinlcgiiii in the year 1964 and the same: was ~. salary grant-«in-aid by the: stirvcd for 28 years sihisiialliiiixacd the age of supurannuzniun. Rs. l,220f- as 011 um date ofhfiif ifA'i'j'i'"&iifi_ei}}:ti'*--J¢,3l_=i is The was employed, was uf the Grant-in-aid Code Schools. Upon the peliiigancarfts {lie year 1992, the sixth respondent9. The further deposit of the amount lowa:x§§s._il1c relevance is an unfair already stated, it pension papers 91' the petitioner for sanction iieiiéfiis admissible in the pctitiuner, as per {ha _V prosiisinnsfliciiiiilhe TBS Rules applicable to Kamalaka Private fiiumfiunai Institutions, including Nursery Schools as ' 3 of the said Rules. 3 No action having been taken V' sanction of pension pursuant to the IGt§vc:rnmg:nl_,l.l:}1§l;;fldsiied-.A 20.7.1994, wherein it has dimmed amount of Rs.380:'- per month School employees, plea that employees of gelling salary grant-in-aid Nursery School emplssyw they art: not cligiblc7:f0r__l clslm as per the TBS Rules. Accordingly' thy: sixiizl sanutioncd a ctmsolidalcd _ amuufxltlluf Rs.35'0fisllf.:3:r rfaonth lo the pctiliuncr, on the plea that ;3g;{i£i1';)1:¢:r.§922s'gc[1ing a salary grant-in-aid 50% and that the applicable to her. ll 4. the p-eii!.i0m:r's conlnulion ll1a1Chaplt:r-lll of the A "it Educaiiun grant-in-aid code deals with the payment :3!' V" gl'§~.1ni,s to High Schools, Primary Schools and Nursery Schools. The Memo dated 7.10.1996 in respect of the pciitioncr in W? 3 2196552005 and the Memes dated 16.5.3995 in petitioner in WP 2196-4/2005, issued by the sixth _ dwlafing that the petititmer was i_n.eIi,g§ble_--"fi5f" K" benefits and only sanctioning a neonéeiidated .1. Rs.38{)f- per month and the " Lt employees are ineligible.» 'vd£..'peneiG1i-Aetfiejms are 5. The cuttgtst-.1 we mgsttenor of the T88 Rules would,' which are department and which are in of the Government entitles the stall' 2.';-etlrrkingkéi§1erein.I~fof'.peii.siunary benefits irrespective of the dii"g:~ant#i}i'¥&id that an institution rem ives. The is not the criteria. for determining the _ etigii3iIity'o§' stall' for payment of pensienary benefits. The have been miseenstrued and incorrectly interpreted in .' pensitmary benefits to the petitioner under the Rules. 8 6. To fortify this contention that such . pcnsionaxy benefits is nut dcpendcntptx " " grant-in-aid is highiightcd by the ci:i:un;:§£ai1c¢tt'tha&.:}t «iVV:s::t.t_("r21.jI{$rt--:. with eflizct from 1.4.1967, as 'g1':ant- " Lt in-raid code, the Prirnary 313:1 'S1.:fih{)tJt$'aId:~i¥i mwipt of ctsnt-percent teaching the teaching staff working iq.vp:;t.t§§;t¢ prior to 1967 have been 3 irrcspectivt: of the be nu discrimination insofar tis receiving grant-in«aid from Govegnmgnt determining pcnsiunary benefits. tgfintfintiun that sincc Nursery Schools art: getting 150§?3«._3.;d',' :!2i's§v:__ of such Schouls are not cligibie fur --V fiznefits, is unrttasonable and wholly without V' "g~It§i'er«:,;;ccH to the Rules, which does not impose any such ' !'(§£§tI'iC1i0!'i insofiu as the pcnsionaxy bcntsfits are uouoemcd. 3 -4 10 '.- The. Counsel would submit that there is ampk: in granting such pensionary benefits as was diairiéi ' i-sf _ petition in WP 2885:1991 which was (i1i'Gitii';:3ii2:.i'99:3t: * it in similar circumstances, dirtacziingl iof benefits as wcii as in 'HP " ii disposed of on 29.5.l99?,g.nd of can 1.9.1998, whereby, it wasih-Eta tiix::1.,tiii"it" is made to the TBS than in them: ciwumstant:6i~:; Nursery institutions are: eligible i A i 7. mtcmtg:it;,,..g;mti§.i:,.1.;; that the primary objcctiun V raisegihgjby the St:itz:,_i_fC':ri)vciinzn<:nt, in its statement of objections, ;i§;'tuii:ti:t;i that since the pctitiemsr has not contributed iiBuund scheme, the petitioner would not be ' £'3I}titiiéii pension under the Time Bound Scheme: Rules. ii iC.g)unscl wuuki draw attention to Annexum-O which is :2 ii rtsiwipt for having deposited at consoiidatad amount of Rs.38{}r'-. Q --; 12 :- at Kindergarten Schools with cffiact fmm 19.12.1993 nut tenable, in View of the [hot that the petitioner ' case has retired before 1998, namcly:i'ti"'Lhz~: V' the amendment having come into yesif " . have no cflbcl insufar as the pclifitzzfér is cx)ncc n'::ad; was foifvihé' contribution in the {irsl insiancczlamli .bc deprived of the pensiunaxy benefits' on . .. _V V Egg Crgvemmcnl Advocate wouki, on the other hand, Statement of Objections. " 1it.'«:_H.§o'wcvcr, for {he reasens, as rightly contended by the v~:%_"(3A¢;V3IV{nL:"a"s,--;_¢:l fur the petitioner, the same are untenabic. The pfiitioner is entitled 10 the benefit of TBS Ruics and the uf fkzurslh-§,"V;;_t_;y'tA.:;aI1ier fmm the dale of receipt of a A V ' V _ _ the Ordtzr. ~. 14 ;~ For the reasons and cimumslanws [he petition in W? 21964/'Z005 is " dated 3.1.2005 passed in Revisipfl first respondent is htsrcby ' are 'V directed (0 count the School for the: periud E013 of pension and to lo pcnsionmy _i§m'n-xtxn as per the pnwisions of the TBS R:.s¢s%. .'41V"z§':.-;'.;3s.:;1F':1'»a_.;it'§_IV1l:~: shali comply within a pczitxi Sd/-» Judge

Author: Anand Byrareddy

Kanakammal W/O Late Govindaraj vs The Secretary To Government ... on 21 October, 2008

Karnataka High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 30005 of 2009(U) 1. P.C.MOIDEENKUTTY ... Petitioner Vs 1. THE SECRETARY, ... Respondent 2. JOINT REGIONAL TRANSPORT OFFICER,THIRUR For Petitioner :SRI.G.HARIHARAN For Respondent : No Appearance The Hon'ble MR. Justice S.SIRI JAGAN Dated :18/11/2009 O R D E R S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W. P (C) No. 30005 of 2009 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 18th November, 2009. J U D G M E N T The petitioner is a stage carriage operator who obtained a regular permit to operate on the route Anjuparamb, Kilinakode, Vengara - Kondotty, Manhengara touching Parappur, Cherekkad and Muthalamad (Via) Kunhipuraya, Chinnammapadi, Mini Kappue, Cheroor, Muthuvilkund, Achanambalam, Kunnampuram, Thottassery Ara, Tharayittal - halt at Kilinakode. The petitioner's grievance is that the 1st respondent is not settling timings and issuing the granted permit. The learned Government Pleader submits that granted permits are issued after settling timings in accordance with the priority of grant of permit in view of the heavy backlog of cases pending before the respondent. In the above circumstances, this writ petition is disposed of with a direction to the 1st respondent to settle timings and issue permit to the petitioner as granted by the RTA in accordance with the priority of granted permits. Sd/- S. Siri Jagan, Judge. Tds/ [True copy] P.S to Judge.

P.C.Moideenkutty vs The Secretary on 18 November, 2009

Kerala High Court

JUDGMENT P.K. Misra, J. 1. The claimants in a reference under Section 18 of the Land Acquisition Act have filed this revision. It is stated that the reference numbered as M.J.C. No. 59 of 1987 in the file of the Civil Judge (Senior Division), Jeypore, was taken up before the Lok Adalat for disposal, but due to illness of petitioner No. 2, no steps were taken on behalf of the present petitioners and consequently, the award was confirmed. Therefore, an application was filed under Section 151, Code of Civil Procedure, to set aside the order dated 25.10.1992. The said application having been rejected as not maintainable, the present Civil Revision has been filed. 2. The Court below has held that since the award by the Collector had been confirmed by the Subordinate Judge, an appeal under Section 54 of the Land Acquisition Act should have been filed and as such an application under Section 151, Code of Civil Procedure, is not maintainable. 3. Law is now well-settled that even though remedy of appeal is available, the power to recall an order under Section 151 can be invoked and existence of remedy by way of appeal is not an absolute bar for exercise of power under Section 151, Code of Civil Procedure. As such, the trial Court should not have rejected the application on that score. 4. In ordinary course, I would have remanded the matter to the trial Court for fresh consideration of the application under Section 151, Code of Civil Procedure. However, since "he award of the Collector has been confirmed in the absence of the petitioners during Lok Adalat, I deem it necessary to remand the matter to that stage. If the petitioners were absent during Lok Adalat which is meant to resolve dispute by amicable settlement, the Court could not have confirmed the award in the absence of the petitioners and should have posted the same for regular hearing. The explanation of the petitioners that due to illness of petitioner No. 2, they could not take steps appears to be acceptable. At any rate, since the Court had no power to dispose of the matter in Lok Adalat without consent of the parties, the said order should not stand in the way of the matter being heard on merit. 5. In the result, the revision is allowed and the Civil Judge (Senior Division), Jeypore, is directed to dispose of the reference under Section 18 (MJC No. 59/87) on merit by affording opportunity to the parties to adduce evidence. Both the parties are directed to appear before the trial Court on 29th, September, 1997, for receiving further direction in the matter. There will be no order as to costs.

Author: P Misra

Sadasiba Nayak And Ors. vs Zone Officer No. I, Upper Kolab ... on 2 September, 1997

Orissa High Court

JUDGMENT T. Ramaprasada Rao, J. 1. The appellants in both the appeals are the plaintiffs respectively in O.S. Nos. 139 of 1966 and 3527 of 1963 on the file of the Court of the City Civil Judge, Madras. The plaintiffs were unsuccessful in their attempt to recover damages with interest as against Thandava Co-operative Agricultural and Industrial Society Limited, Tuni in Andhra Pradesh which is a Society which was manufacturing and distributing sugar to its customers. The plaintiff in O.S. No. 139 of 1966 claims that he entered into a contract with the defendant through Messrs. Aries Sugar Agencies Limited, Madras, for the purchase of 'Tuni' Sugar, four waggons (880 bags) from the 1962-63 crops of sugar manufactured by the defendant at Rs. 106 per bag, f.o.r. Tuni. The contract was so entered into on or about 7th January, 1963 under Exhibit A-3. A sum of Rs. 4,400 was paid as earnest money by the plaintiff-appellant through Messrs. Aries Sugar Agencies Limited. According to the plaintiff, he was ready and willing to perform the contract by paying and taking delivery of the goods, that he was calling upon the defendant through Messrs. Aries Sugar Agencies Limited to perform the contract, that the defendant failed to deliver the goods and that in accordance with the main term of the contract, the defendant did not apply for or obtain an allotment to the waggons from the railway for the purpose of despatching the goods to the plaintiff. The plaintiff having waited for a reasonable time and as in any event such goods were not supplied before the first week of April, 1963, issued the suit notice Exhibit A-5 and the reply Exhibit A-6 given by the defendant not being satisfactory, has come to Court claiming damages for non-delivery of the said 880 bags at the rate of Rs. 19 per bag being the difference between the market rate and the contract rate which was reckoned on the basis of the prevailing market rate between the second week of March and first week of April, 1963. 2. Similarly, the plaintiff in O.S. No. 3527 of 1963 entered into a contract with the defendant through Messrs. Aries Sugar Agencies Limited, under the contract marked as Exhibit A-l for the purchase of 660 bags of sugar of the 1962-63 crop at Rs. 108 per bag f.o.r. Tuni. The clause regarding despatch, which we shall consider in detail in the course of our judgment, provides that the goods have to be despatched to Royapuram as and when waggons were allotted to the defendant by the Railways. The plaintiff in this action also paid the necessary advance through Messrs. Aries Sugar Agencies Limited and was awaiting supply till the first week of April, 1963. The defendant failed to supply the goods and did not deliver the goods as per the contract. The plaintiff accuses the defendant as not having taken diligent steps in the matter of the application and allotment of waggons by the Railways and that the defendant failed to deliver the goods within a reasonable time and in any event such supplies ought to have been made by the first week of April, 1963. Consequent upon the defendant's failure to do so and after issuing the suit notice and after having obtained a reply on the same lines of the reply notice given in the other suit, the plaintiff has come to Court claiming a sum of Rs. 11,220 as damages for non-performance of the contract, though the plaintiff was ready and willing to do his part under it, on the basis of Rs. 17 per bag being the difference between the contract rate and the market rate. 3. The defendant raised practically a common defence which we shall summarise in so far as it is relevant for our purposes. According to the defendant, the City Civil Court had no territorial jurisdiction to entertain the suit and the defendant denied that it committed any breach of contract. It referred to the Sugar Control Order of 1955 and stated that there were enough Governmental restrictions in the matter of the release and supply of goods for domestic consumption and that such inevitable delays were beyond the control of all the parties to the contract and they were bound by such delays. The defendant says that the Society and the plaintiff were not direct contracting parties sui juris and it was only the Madras firm of Aries Sugar Agencies Limited which brought about the contracts and which was acting as Agent of the plaintiffs both in the matter of the formation of the contracts as well as in the manner of its execution. A bunch of contracts were entered into at about the same time when the suit contracts came into existence and Messrs. Aries Sugar Agencies Limited, expressed that such performance was to be in strict priority, that is to say, according to the numerical order of the purchase contracts. There were three sets of contracts, two of them relating to the new crop (1962-63) sugar) and the other to the old crop of which there was a small stock available with the defendant society at or about the time when Messrs. Aries Sugar Agencies Limited caused the contracts to be made. The defendant explains that the necessity for obtaining the waggons would arise only after the necessary release orders were obtained from the Governmental authorities and that the said application for waggons could only be made thereafter should be deemed to be an implied term in the contract. The defendant set out seriatim as to how and in what manner it secured the necessary release orders from the Government and would explain that in accordance with the instructions given by Messrs. Aries Sugar Agencies Limited, who were the prime movers of these contracts throughout, both in their formation and in the matter of their execution, it supplied according to the priority rule to the buyers of sugar strictly in conformity with the serial number of their contracts and by the time they could reach the suit contracts, the Sugar Control Order of 1963 was promulgated whereby it became impossible for the Society to respect the contracts, as under the Control Order the performance of the suit contracts became impossible or unlawful. It would refer to the Sugar Control Order of 1963, dated 17th April, 1963 and the consequential notifications issued thereunder by which all the pending contracts including the suit contracts had become completely frustrated. In those circumstances the defendant would state that at no point of time there was any breach of the conditions of the contract and that it is not in any way responsible for the non-performance of the contract. Regarding waggons, the case of the defendant is that it was possible for the Society to apply for waggons only after the release of stocks by the orders of Government and only for such number of waggons as were required for the despatch of the quantity of sugar released. The defendant claims that it has performed the contract in accordance with the strict instructions given by Messrs Aries Sugar Agencies Limited and that there was no delay or wanton avoidance on its part in the matter of the application for the waggons or getting the allotment of waggons from the Railways. It would add that the contracts contained reciprocal promises and that the plaintiff did not apply to the Society for delivery of the goods and that the plaintiffs cannot be said to be persons who were always ready and willing to perform the contracts. In these circumstance the defendant claims that the plaintiff in both the actions are not entitled to the damages as claimed. 4. The following issues were framed for trial in O.S. No. 3527 of 1963: 1. Has this Court no territorial jurisdiction to try this suit? 2. What are the nature and terms of the suit contract? 3. Has the defendant committed breach of contract as alleged in the plaint? 4. Is the. suit for damages maintainable where the plaintiff does not allege that he ever applied for delivery and that he was ever ready and willing to pay and perform his part of the contract? 5 Whether the plaintiff can claim damages without any attempt by him to mitigate the alleged loss or damages? 6. Is the plaintiff entitled to any damages? If so to what extent? 7. To what relief is the plaintiff entitled? 8. Is the defendant entitled to compensatory costs under Section 35-A of the Civil Procedure Code? Additional issues framed on 14th November 1966: 1. Whether the suit contract is a contingent on conditional one and not an absolute contract? 2. Whether performance of the contract was rendered impossible and the contract became void for the reasons mentioned in the written statement? The, following issues were framed in C.S. No. 139 of 1966: 1. Has the defendant committed breach of the contract? 2. Has this Court no jurisdiction to try the suit? 3. Is the plaintiff entitled to any damages and if so to what amount? 4. Was the suit contract conditional contract and not an absolute contract? 5. Was there any time limit for the performance of the contract by the defendant? 6. Was the performance of the contract rendered impossible for the reasons mentioned in para. 10 of the written statement and the other paragraphs? 7. To what relief if any is the plaintiff entitled? The defendant did not press toe, issue that the City Civil Court had no jurisdiction to try the suit. On the nature of the terms of the contract and so to whether the defendant committed a breach the learned Judge came to the conclusion that the contract is not an absolute contract, but a conditional one, that the term, in the contract that the goods should be despatched only after the defendant obtained release orders from the Government and thereafter only should apply for the waggons could be implied in it, that in view of the Control Orders which were in force and having regard to the manner in which the bunch of contracts should be executed strictly in accordance with the priority rule imposed by Messrs. Aries Sugar Agencies Limited there was no breach of contract on the part of the defendant and the Aries Sugar Agencies Limited acted throughout as representatives of the plaintiff s and not as indenting agents of the defendant, and that the unperformed portions of the contracts including the suit contracts became frustrated after the Sugar Control Order of 1963, was promulgated. It was in those circumstances the learned Judge held that the plaintiff was not entitled to any damages. He also held that there was no. time limit for the performance of the contract. On the question whether the plaintiff would at all be entitled to damages, he held that as the plaintiff did not suffer actual damages, he is not entitled to claim damages. In the result he dismissed O.S. No. 3527 of 1963 with costs and refused to award compensatory costs in both the suits, but denied costs to the defendant in O.S. No. 139 of 1966-as both the suits were tried together. It is as against this judgment and decree that the plaintiff in each of these suits has come up to this Court in appeal as stated above. 5. The defendant in O.S. No. 139 of 1966 has filed a cross appeal since the lower Court did not award costs to it. It is said in the memorandum of cross objections that there was no exercise of real judicial discretion when costs were disallowed by the trial Court in the connected suit. 6. Mr. P.V. Subramaniam, learned Counsel for the appellants contended that the lower Court was wrong in having implied a term into the contract and holding that the obligation to apply for allotment of waggons would arise only after release of the sugar by the Governmental authorities. He would also say that Aries Sugar Agencies cannot be said to be their agent or representative and that the defendant in any event had enough stock after its performance in part of the prior contracts which were anterior in point of time to the suit contract and that it failed to despatch the goods notwithstanding such availability of stock and on. this ground the defendant is bound to pay damages for non-performance of the contract at least in part as was done in the other prior contracts. He would not seriously object to the finding of the Court below that the performance of the contract in so far as it related to their unperformed portion is concerned became impossible by the promulgation of the Sugar Control Order, 1963. He would however state that there was no such frustration in the instant case. His case is that the defendant avoided to apply for waggons and get an allotment of such waggons even though it had the requisite stock with it for despatch to a few of the contracting parties in accordance with the so called priority rule and that there is no proof in the instant case that the defendant did apply for such waggons and did not get allotment within time as required under these contracts to enable it to despatch the goods at least in part performance of the contract. He would say that in so far as the plaintiff in O.S. No. 139 of 1966 is concerned, he would be entitled to damages for non-supply of at least a part of the contracted goods and he claims such damages at the rate of R.s. 11 per bag, though, according to him, there is evidence available in the Court below that the difference between the contract rate and the market rate was decidedly more. On the other hand Mr. P.V. Chalapathi Rau, learned Counsel for the respondent, while sustaining the judgment of the Court below, urged that in commercial practice like the one with which we are concerned, an implied term could be introduced and that the defendant was obliged to apply for waggon only after release of the stock by the Government and that its course of conduct in the light of the above plea by Aries Sugar Agencies Limited throughout the bargain does not reflect any breach of the concerned contacts on its part and that it is therefore not liable for damages He would, however, press his cross-objections in A..S. No. 724 of 1969. 7. Instead of considering the issues framed by the trial Court seriatim and answering them, we find it convenient to consider the contentions raised by the learned Counsel before us and group the said contentions under certain decipherable heads so that the issues between the parties could be adjudged in the light of the concerned material and evidence let in. Broadly speaking, the points for determination are: (1) Whether Aries Sugar Agencies Limited acted as the agent of the plaintiff or only as an indenting agent? (2) Whether the rule of priority dictated by Aries Sugar Agencies Limited was accepted by all the buyers and was it acted upon to the knowledge of the buyers including the appellants? (3) Whether the defendant at all material points of time attempted to obtain release of stock from Governmental authorities? (4) After obtaining such release, did the defendant take all reasonable steps to despatch the goods in accordance with the contract and instruct in order of priority all the contracts which formed part of the bunch of contracts entered into by it with various buyers including the appellants through Aries Sugar Agencies Limited? (5) Whether the defendant at the crucial point of time attempted to get waggons for the despatch of the released stock of sugar with it, and it did not do so at least in respect of a portion of the stock with it? (6) Is the defendant liable for damages for non-performance of at least a part of the contract? (7) Is the contract an absolute one or a contingent one? (8) Has the remaining portion of the "unperformed part of the contract become frustrated by reason of the Sugar Control Order, 1963? (9) Is the plaintiff in any of the suit entitled to damages? If so, what is the quantum of damages? (10) Is the respondent in A.S. No. 724 of 1969 entitled to succeed in the cross appeal? 8. Though there are three groups of contracts which were brought about by Aries Sugar Agencies Limited, we are practically concerned with only two groups. The second group of contracts in the series of the activities of Aries Sugar Agencies Limited related to the purchase and sale of sugar of 1961-62 crop. It consisted of three contracts, one of which was forged by the plaintiff in O.S. No. 139 of 1966 on the file of the City Civil Court, Madras. By order, dated 15th March, 1963, under Exhibit B-41, the Government of India treated the available stock of 1961-62 crop with the defendant as 1962-63 stock for purposes of release of such stock by the Sugar Mills for purposes of domestic consumption. Thus it is evident that the 1961-62 crop sugar, which was the subject-matter of the second group of contracts, was never released at all by the Government for distribution until March, 1963. Therefore the contract Exhibit B-14, though entered into by the plaintiff in relation to the old crop, is not the subject-matter of these suits under consideration by us. There is no reference to this in the pleadings. 9. We have therefore the contract Exhibit A-3, dated 7th January, 1963 between the plaintiff in O.S. No. 139 of 1966 and the defendant for the supply of 880 bags from 1962-63 stock, which could be loaded in four waggons and the contract Exhibit A-l, dated 28th January, 1963 between the plaintiff in O.S. No. 3527 of 1963 and the defendant for the supply of 880 bags in three waggons from the new crop. It is necessary in the first instance to ascertain as to who was responsible for the formation of these contracts. Aries Sugar Agencies was a firm at Madras who was interested in bringing together the defendant as manufacturer of sugar with persons like the plaintiffs in both the suits, as the purchasers of the stock. It is abundantly clear from the correspondence and the evidence let in these cases, that Aries Sugar Agencies Limited, hereinafter referred to as Aries, initiated the commercial activity more at the instance of the plaintiff rather than the defendant. D.W. 1 examined on the side of the defendant makes this position clear. D.W. 1 says that the plaintiffs did not contact the defendant directly and Aries brought about the suit contracts and that there was no direct correspondence between the plaintiff and defendant in both the suits before-the formation of the contracts. He would add that all contracts were received from Aries and that Aries sent the advances under the contract after collecting them from buyers and that they personally negotiated with the buyers. It may also be stated that this was the stand of the defendant in the pleadings. In the written statement, the defendant's case was that the defendant society and the plaintiff were not directly the contracting parties sui juris and that Aries conducted and managed the course of performance of the same. D.W. 1's categorical assertion on the role, of Aries was not in the least disturbed in cross-examination. Above all, the plaintiff did not care to examine Aries, a Madras firm on whom they had reposed so much of confidence and through whom they spoke and acted throughout till they came to Court. From the exhibits filed it is seen that Aries started the correspondence in December, 1962 and kept on doing so until all the contracts in the three groups were ultimately finalised. The plaintiffs chose to remain in the background and held out Aries as the catalyst and indeed as their negotiating representative or in other words as their agent. Exhibits B-67, B-68, B-69, B-60 and B-71 exchange ed between 31st December, 1962 and 7th January, 1963 advert to the first group of contracts including Exhibit B-11 which is numbered as T-11 contract (in O.S. No. 139 of 1966), Exhibits B-75 to B-79 written between 10th January, 1963 and 18th January, 1963 relate to the second group, numbered as T-12, T-13 and T-14 contracts. The prior correspondence between Aries and defendant in relation to the third group of contracts have been marked as Exhibits B-16 to B-19, exchanged during 22nd January, 1963 and 28th January, 1963 and which culminated in the suit contract Exhibit A-l for Exhibit B-25) numbered as T-20 contract (in O.S. No. 3527 of 1963). There is no particular reason why the plaintiffs should remain in the background throughout the relevant and material time. In fact, as we shall establish presently, the contracting parties willingly acquiesced as well in the manner of performance of the contract by Aries. 10. It was Aries who was dictating on behalf of the generality of the buyers and especially for and on behalf of the plaintiffs, as to who should be supplied first. The priority rule as to "supply was the mandate of Aries. This was acquiesced in by all the buyers. The tone of correspondence also supports this view. In Exhibits B-19, B-27, B-28, B-32, B-35 and B-26, Aries brings out its real image and the significant part played by it for the plaintiffs and other buyers. It imposes on the defendant what is understood by the parties as a priority rule. The learned trial Judge has referred to those documents. In all the above exhibits it gives specific instructions as to hew the defendant should execute the bunch of contracts. The buyers were aware and at least presumed to be aware of the fact that sugar had long been a Government controlled commodity under the provisions of the Sugar (Control) Order of 1955 promulgated by the Central Government under the Essential Commodities Act, The defendant rightly referred in the written statement to the following: Sugar had long been a Government-controlled commodity under the provisions of the Sugar (Control) Order, 1955 promulgated by the Central Government under the powers conferred by Section 3 of the Essential Commodities Act, 1955. By the force of the said Order, all sugar produced by the Society was made liable to be stored in or removable from the banded godowns of the Society's factory in the presence of the Central Excise Inspector in charge of the Factory and the Society was not free to fulfil its contracts with buyers until and unless the Directorate of Sugar and Vanaspati, Ministry and Food and Agriculture of the Government of India issued orders c f release of quantities of sugar for domestic consumption and the Society was. enabled on the strength of such orders to apply for and obtain allotments of wagons for despatch of sugar to its buyers under subsisting contracts. These Governmental restrictions caused inevitable delays beyond control and both sellers and buyers were bound by such delays. The mandates it gave in the correspondence are highly consistent with its attitude as agent of the plaintiffs. It would ask the defendant to execute the contracts belonging to the second group first before it touched upon. Grade I and Grade III contracts. It wants the defendant to execute the suit contracts and the allied contracts strictly in serial order as all the buyers knew of their serial order numbers. Regarding the first and third group contracts, it says in Exhibit B-28: 106. Contracts : 'You have loaded one waggon New Crop on account of Haji Kamaludeen Saib and Company and one waggon on account of R. V. Ramia Chetty and Company'. So, now, you should load the next waggon for Ayyaswamy Nadar and the next to this for Ponnuswamy Chetty. Then contract No. ASA/T/5 should start; Likewise, please despatch according to contracts serial numbers, so that parties may not be displeased. Then it gave encouragement to part and piecemeal performance of the contracts in seriatim. In Exhibit B-32 it says: Priorities : As already requested kindly see that all orders are executed strictly in the serial order of the purchase contracts so that complaints may not emanate from parties. in Exhibit B-35 it wires: Despatch strictly according to contracts serial numbers only. In Exhibit B-36 it assets: As already advised you, in our previous letters and also by our above telegram kindly see that the orders at Rs. 106 per bag, are executed very strictly according to the serial numbers of the buyers' contracts only, so that there may not be misunderstanding from them on our side as we now understand parties have been either writing to you or wiring you to despatch their ordered quantity. All parties are aware of their priority turns as per their numbers of their contracts. In this letter it is further stated that the five waggons, under despatch, accordingly should be on the account of the persons mentioned in it. It would be fantastic to expect an indenting agent, as Aries is sought to be made out by the appellants, to assume the role of a representative of the buyers, if it was not authorised to do so and if it was not allowed to act as such. Thus we agree with the Court below that Aries was held out more as agent of the plaintiffs than as a bare indenting agent and the buyers also elected to accept performance of their respective contracts piecemeal, having regard to the stringent supply position of sugar, which was admittedly a controlled commodity under the Sugar (Control) Order. 11. The next relevant consideration is to see what steps did the defendant take to obtain the necessary release order from the Government so as to bona fide perform their part of the contract in making the supplies according to the agreed priority rule envisaged by Aries. We have already referred to the fact that the 1961-62 stock was to be treated for purposes of release, as 1962-63 stock (vide Exhibit B-41). With regard to 1962-63 stock, with which the present litigation is concerned, 11 contracts Exhibits B-l to B-11 and 7 contracts Exhibits B-20 to B-26 in January/February, 1963 were entered into. The contracts bear serially a number. We are concerned with T/11 which is the suit contract in O.S. No. 139 of 1966 (in A.S. No. 724 of 1969) and Contract No. T/20 which is the subject-matter of O.S. No. 3527 of 1963 (in A.S. No. 725 of 1969). No doubt, in the second group, with which however we are not concerned, the contracts were given numbers, to wit T/12, T/13 and T/14. Thus, in accordance with the priority rule of supply and that too in part, the defendant was obliged to exhaust the first ten contracts, i.e., T/1 to T/11, before it could think of performing contracts bearing numbers T/11, T/12, etc. To make such uniform supplies even in part, the defendant should have sought for release of stock from Government. Did it take reasonable steps for obtaining such order of release to respect the contracts on hand and see to the harmonious and equitable performance of all the contracts though in part and by piecemeal supply? 12. The above aspect could be well appreciated if we summarise the necessary events which led to the issuance of the release orders by the Government of India from time to time. The first release of the stock from the 1962-63 crop was under Exhibit B-15 dated 18th January, 1963. Under this order the Government directed the respondent Society to sell in India for the purpose of domestic consumption only including despatches to Nepal, Bhutan and Sikkim 45 Tonnes (Metric tonnes (450 bags) of sugar out of the production of 1962-63 and complete despatch of the aforesaid quantity of sugar by the 4th of March, 1965. As a result of such a release order, the Society applied for and obtained 2 waggons and delivered 440 bags under contracts T-l and T-4. This is seen from Exhibits B-28 and B-89. It had therefore a net balance of 10 bags stock of released sugar with it. Thereafter, a second release was made by the Government under Exhibit B-34 dated 11th February, 1963 for 204 Metric Tonnes (2,040 bags) of sugar out of the 1962-63 production. The despatch was to be completed by 28th March, 1965. The Society promptly applied for waggons for such despatch. But, according to the evidence of D.W. 1, he could only get an allotment of 5 waggons. The result was the Society despatched 1,100 bags in 5 waggons, each waggon containing 220 bags, to each of the buyers under contracts T-2, T-5, T-6, T-7 and T-8: This is evidenced by Exhibits B-36 and B-89. 13. Immediately thereafter the Society, under Exhibit B-37 dated 4th March, 1963 applied for further release of 300 Metric Tonnes, so that it could complete the bunch of contracts which were by then pending performance with it. It repeated its request for such release under Exhibits B-38 dated 13th March, 1963. Finally, on 14th March, 1963 the Government issued the third and the final release order under Exhibits B-40 releasing 54 Tonnes (540 bags) for distribution for domestic consumption. It is therefore clear that on or about 14th March, 1963 the Society thus had a stock of 10 bags as balance under the first release order, 940 bags under the second release order and 540 bags under the third release order, totalling 1,490 bags. Out of this 1,490 bags, it is not in dispute that one Sankaralinga Nadar, who entered into the contract T-9, took delivery of 220 bags at Tuni itself and removed the same by a lorry arranged by him. Deducting the said 220 bags, the net available stock of released sugar with the Society in or about the second week of March, 1963 was 1,270 bags. To despatch these sugars in accordance with the priority rule, the Society should have secured at least 6 waggons. We may also refer to Exhibit B-42 wherein the Society again requested for a release order for about 300 Metric Tonnes, apparently the request was not complied with. But it cannot be overlooked that if the Society obtained about 5 waggons at least from the Railways in order to clear the stock of released sugar in its hands by the second week of March, 1963 it would have performed five more contracts which would take in at least contracts T-10, T-11, T-12, T-13 and T-14. We are here concerned in these appeals with T-11 to T-20. To reach contract T-20 further release orders were required. The question is whether the -defendant made reasonable endeavours to secure at least 5 waggons before the control order was clamped on 17th April, 1963 making it impossible for the defendant to perform any portion of the subsisting contracts with it. 14. At this stage it is essentials to weigh the bone of contention of each of the parties, which has assumed some proportion due to the impact of law on the relative facts and situations projected in these contracts. As already observed, the parties were well aware of the difficult supply position of the essential commodity of sugar even by the manufacturer during the relevant period when the contracts were forged. The term of the contract which has bearing on this part of the case is: Despatching Despatchable as and period : when waggons are a Hotted to you by railways as agreed. On the bare text of this clause, Mr. P.V. Subramaniam contended that if the defendant strained every nerve to assure the waggons after performing in part contract No. T-9, it would not have been difficult for it to get the waggons allotted so as to perform at least contract No. T-11. On the other hand Mr. P.V. Chalapathi Rau urged that in the wake of the events that surrounded the formation of those contracts, an implied term can be spelt in them that waggons should only be sought for after the release orders and that such efforts were made by the defendant and therefore the defendant is not in breach to suffer damages for alleged non-performance of contract No. T-11. He would say that in so far as contract No. T-20 which is the subject-matter of O.S. No. 3527 of 1963 is concerned, it became frustrated because of the supervening imposition of the Control Order in April, 1963. 15. It is not in dispute that the Sugar Control Order, 1963 and the relevant communications were issued by the Government of India under the Essential Commodities Act in or about April, 1963. Exhibit B-91 is the copy of the notification dated 17th April, 1963 in Clause 3 of which a restriction on sale of sugar by purchasers is envisaged. Under Clauses 3 and 4 the sugar factory can sell as directed by the Government only to recognised dealers. It is common ground that the plaintiff in both the suits were not recognised dealers. Exhibit B-90 is a further communication dated 19th April, 1963 from the Chief Directorate of Sugar and Vanaspathi stating that the scheme for distribution of sugar will now be that the sugar factories will supply specified quantities of sugar at the ex-factory prices in accordance with the notification in Exhibit B-91. D.W. 1 in the witness box while referring to the Sugar Control Order of 1963 says that it was so promulgated by the Central Government after a declaration of emergency due to the Chinese aggression. Soon after the promulgation, of the Order, Aries, on behalf of buyers other than the plaintiffs, made efforts to adjust all the pending contracts by settling the issue and, as is seen from Exhibit B-54 and Exhibit B-56, such settlement was arrived at between the buyers under the various contracts excepting the plaintiffs in these two actions. It is also seen from the documentary evidence that under Exhibits B-59 and B-60 the defendant attempted to compromise the issue with the plaintiffs but was not successful. Exhibits B-62 to B-66 and B-84 to B-88 disclose that the defendant had made it clear to the plaintiffs that it was impossible for it to perform the contract after 17th April, 1963. We shall presently advert to the impossibility of performance of the unperformed portions of the contract to which practically there is no dispute by the appellants in these appeals. 16. At this stage it would be relevant to consider whether a term that waggons should be sought only after release of the sugar by the Government could be implied in the contract. Generally all contracts are to be interpreted literally without any interpolation in its text. But there are myriad circumstances attendant upon contracts which sometimes prompt the interpretation of such contracts, unless the language is scrupulously plain, to read into the contract a term, which was predominantly in the minds of parties when they farmed the same. Such an intention can be gathered from the surrounding circumstances, the conditions under which the contract was entered into, the compelling dents which the law would make in them for the general good and welfare of the community, etc. If such an irresistible intention which was at the back of the mind of the parties could be gathered by reasonable probe into the attendant circumstances governing the situation in a given case, then Courts as the authoritative interpreters of such contracts can imply a term in a contract, without unduly tinkering with it. 17. Two decisions of our Courts reported in Sannidhi Gundayya v. Illori Subbayya (1926) 51 M.L.J. 663 : 99 I.C. 459 : A.I.R. 1927 Mad. 89 and Satyabrata Ghose v. Mugneeram Bangur and Co. practically cover the issue. In Sannidhi Gundayya v. Illori Subbayya (1950) 1 All E.R. 51: The defendant entered into a contract with the plaintiffs for the delivery of certain bags of rice. The contract contemplated delivery by railway waggons. As a war measure the Government had imposed 'waggon restrictions' and 'priority certificates' all over the Presidency; and the existence of those restrictions was well-known to all the parties. Owing to the shortage of waggons on account of the enforcement of the rules the defendant was not able to perform his contract. In a suit by the plaintiffs for damages for breach of contract, the defendant therefore pleaded impossibility of performance as a defence to to the suit. Held, that the reasonable view of the contract was that the defendant agreed to supply the promised number of bags of rice if after using his best endeavours he was able to secure the necessary number of waggons, that the obligation to perform the contract was therefore, not absolute, but impliedly conditional, and that as the defendant failed to secure the waggons in spite of his best endeavours, he was not liable. Strong reliance, however, was placed by Mr. P.V. Subramanyam on the decision of English Courts reported in C.K.C. Sethia (1944) Limited v. Partabmull Rameshwar. (1950) 1 All E.R. 51 Considering the question whether in such circumstances a term could be implied in a contract, the Court of Appeal said: The Court would read an implied term into a contract only where it was clear that both parties knew that the contracts could only be met out of the sellers' quota, the question whether that quota would suffice for the purpose depended on matters concerning the conduct of the sellers' business which were peculiarly within their knowledge as opposed to that of the buyers (e.g., the sellers alone would know (a) which year they had chosen as their basic year and what quota they were likely to receive as a result of their choice, and (b) what contracts with other buyers had to be satisfied out of their quota), and an unqualified provision to the effect that the contract was subject to the quota being sufficient and to the seller using his best endeavours to obtain a sufficient quota, would be quite inadequate to secure the business efficacy of the contracts; as, therefore, the parties could not be taken to have intended that the term. sought by the sellers to be implied should be incorporated in the contracts, it was impossible to read into the contracts of July and September, 1947, the term contended for by the sellers. That case was decided on its facts. Further, as was observed by the Supreme Court in Satyabrala Ghose v. Mugneeram Bangur and Co. 1954 S.C.J. 1 : 1954 S.C.R. 310 : (1954) 1 M.L.J. 41 (S.C.) "The. decisions of the English Courts possess only a persuasive value". We are of ,the view that it does not lay down a general principle which is applicable to all contracts which ex facie present a condition for performance instead of being absolute in its tenor. La our case the specific clause contains the words "Despatch-able as and when wagons are allotted to you by railways as agreed". Generally in a commercial contract such a peculiar situation is not contemplated. The parties usually give the station c f destination and the station of despatch. Normally the Railways are bound, subject to availability, to allot waggons for movement of goods, which are not subject to any control or the movement of which is not regulated by any law or order. But under Clause 3 (b) of the Sugar (Control) Order, 1955, the Central Government may even restrict or prohibit the transportation of an "essential commodity like sugar. The parties were aware of this. If they do not know ignorantia juris non-excusat. It is this statutory control not only in production, but also in movement, that has compelled the parties to stipulate that the goods are to be despatched after allotment of waggons. They knew that such an allotment would be made only if the sugar is released sugar. If the sugar is not released for distribution or for home consumption, it will be an offence to move the same or carry the same. Having regard to such inherent difficulties surrounding such contracts, the clause regarding despatch was introduced. We have no hesitation to hold that the contract is a contingent contract or a conditional contract and not an absolute one as contended by Mr. P.V. Subramaniam. It should be held that the defendant agreed to supply the contract sugar after obtaining the release order and that his applying for the waggon was conditional upon his securing free sugar, free from control and free to move. A term that the defendant should apply for waggons after the release order is made can be implied in the suit contracts. 18. But even then the question is whether the defendant made all best endeavours to obtain the waggons. We have already referred to the principle in Sannidhi Gundayya v. Illoori Subbayya 99 I.C. 459 : 51 M.L.J. 663 : A.I.R. 1927 Mad. 89 and according to it, the defendant should establish that it used its best endeavours to secure the necessary number of waggons and if such proof is available it will not be liable. It follows that if such proof is not available, it would be liable. We shall refer to a few letters marked in the course of trial which have a bearing on the question. Under Exhibit B-33 Aries queries the Society and regrets that the Society did not furnish so far the registration numbers of indents to enable expeditious allotment of waggons. Under Exhibit B-81 dated 18th February, 1963 the Society replies that it has indented for 5 waggons and gave the registration number of indents and concluded that as and when waggons were allotted it shall be despatching sugar. Under Exhibit B-46 dated 28th March, 1963 the Society writes, after obtaining the third release order for 54 tonnes, that it has indented for two more waggons and gave the indent numbers. It also confirmed that it gave a telegram reading ''Release order received fifty-four tonnes indented wagons. Sending according to priority." Thereafter we do not have any follow-up correspondence to show what endeavours were made by the Society to obtain an allotment of waggons. It would not be sufficient for a seller under a conditional contract like the one under consideration, to refer to his application for indents without proving as to what steps he took to pursue the matter further to obtain an allotment of waggons. Even when D.W. 1 was in the box he was not specific on this question. After referring to the fact that it was possible for the Society to perform the contract piecemeal because of the limited release of the sugar by the Government and apparently in view of the strict instructions as to priority issued by Aries, the witness would say "we have not registered waggon in respect of the suit contracts because the time had not come for performance. We did not apply to the Railway in respect of the suit contracts". But he would add thereafter that he did not maintain any register for placing indents with the Railway and that Rs. 35 should be deposited per waggon and that he applied for waggons for despatching 940 bags. The question, therefore is whether a mere application for indenting waggons or by paying the necessary fees which is to accompany such indents by itself would be equated to an honest bona fide endeavour on the part of the seller to perform the contract in accordance with its tenor. Though the contract is not absolute as is legally understood, and though it is conditional upon the allotment of waggons by the Railway, yet it is obligatory on the part of the seller to place such clinching material before the Court to show that he made all such endeavours to obtain an allotment of the waggons. In fact, no proper registers were produced and enough proof is not available to snow as to how the matter was pursued by the Society in the matter of allotment of waggons. It is doubtful whether waggons were or were not allotted between 21st February, 1963 and the beginning of April, 1963. There is not even clear proof to show as to what would be the time which the Railway would take to allot waggons after the indent is made for the purpose. Even assuming that the Society did make such application by forwarding indents for waggons in or about the end of February, 1963, the Society neither examined the Railway nor produced enough data for us to assume that there was no such allotment of waggons during that period. The reasonable presumption is that at least 6 waggons could have been obtained by the defendant which were the number of waggons which were required for the despatch of the available released stock with it. If such 6 waggons should be deemed to have been allotted if particular care was taken in the matter of such allotment, then the Society ought to have performed at least contract No. T-11 which is the subject-matter of O.S. No. 139 of 1966. To this extent, therefore, the Society is responsible for non-performance of the contract, even though it is a conditional one. 19. For the purpose of completing the discussion, we may also refer to the attitude of the Society in the matter of the non-performance of the contracts other than the suit contracts. D.W. 1 would say that at the intervention of Aries they adjusted several of the contracts which were contemporaneously entered into by settling the same with the buyers. He would say that a settlement was arrived at and the buyers not only got back the advance but dropped the demand for performance of the contract. He would also admit that an ex gratia payment was made to the parties other than the plaintiffs in this action. This is also a pointer to the fact that the Society felt guilty at one time for non-performance of the contracts. This could only be attributed to the fact that it did not take realistic steps to obtain waggons for the discharge and performance of the contracts as contemplated. 20. If, in the circumstances, it could reasonably be surmised that the Society could have obtained 6 waggons from the Railway, then it could have despatched one waggon each to 6 contracting parties. We have already referred to the fact that up to contract No. 1-9 the Society performed its part of the contract. By the reasonable assumption which we make in the instant case that 6 more waggons of sugar could have been despatched from the available released stock, the Society could have performed 6 more contracts. This takes us to contract No. T-15. As contract No. T-11 is included in that group, there has been a failure in the normal discharge of the contractual obligations by the Society in re: the plaintiff in O.S. No. 139 of 1966. To this extent, therefore, the Society is liable to pay the difference between the market price and the contract price as and towards damages. As regards the unperformed portion of the contract in T-11, beyond the supply of one waggon as above, it is frustrated as we would presently demonstrate. 21. Contract No. T-20 is the subjectmatter of O.S. No. 3527 of 1963. As, in our view, the time for performance of this contract according to the priority Rule did not arise prior to 17th April, 1963 when the Sugar (Control) Order came into force, the plaintiff in this action would not be entitled to any damages as no allotment of waggons for the performance of any portion of it was possible after the Sugar (Control) Order, 1963 came into force. The plaintiff in O.S. No. 3527 of 1963, therefore, would not be entitled to any damages. 22. Before quantifying the damage to which the appellant in A.S. No. 724 of 1969 would be entitled to, we would like to touch upon the law of frustration as in force in our country. Law is well settled that the doctrine of frustration takes into its fold not only cases of physical or literal impossibility, but also circumstances which make it impossible and illegal on the part of one of the contracting parties to perform the contract in terms agreed upon. There may be circumstances where Court may be inclined to opine that a case of literal impossibility has not been established. But such literal impossibility by itself is not the sole ground for accepting the non-performance of the contract on the ground of doctrine of frustration. If in a given lease there is acceptable material to show |that the events supervening after the formation of the contract have shaken the very root of it and the foundation of the contract having thus been shaken it would be impracticable to accept performance of the contract by a reasonable and prudent person; then only Courts will excuse the performance. The conclusion must be arrived at by sitting in the arm chair of prudence and practical wisdom. A priori and theoretical consideration ought not to weigh while deciding whether a contract has become frustrated or not. The decision should be the dictate of common sense, practical wisdom and normal commercial experience. Judged by these standards, we have to accept the case of the Society that on and after 17th April, 1963 contracts as a whole have become frustrated in so far as their undischarged and unperformed portion are concerned and therefore the claim of the plaintiff for damages for alleged non-performance is opposed to Section 56 of the Contract Act. Presumably because of this well-established principle Mr. P.V. Subramaniam would not pursue this aspect before us. 23. Having therefore held that a major portion of the obligation as to performance of the contract has become discharged by the doctrine of frustration, the only surviving question is as to what damages would the plaintiff in O.S. No. 139 of 1966, who is the appellant in A.S. No. 724 of 1969, be entitled to. 24. The plaintiff in O.S. No. 139 of 1966 claimed damages at the rate of Rs. 19 per bag. P.W. 1, an Accountant in a similar trade, was examined and he filed Exhibit A-7 to show the market rate of sugar at or about the time when the breach was committed. Exhibit A-8 is a purchase book filed by the same witness to show that 10 bags at the rate of Rs. 118 per bag were purchased and that the market was an the upward trend. This witness was subjected to severe cross-examination. The trend of cross-examination was that the witness was unable to say whether the subject-matter of the sale under Exhibit A-8 was equatable in all respects to the contracted sugar. We cannot, however, lightly brush aside Exhibit A-8 which shows that the market rate of sugar was Rs. 118 per bag. The contract rate was Rs. 106 per bag. In O.S. No. 3527 of 1963 the contract rate was Rs. 108 per bag. In the memorandum of grounds of appeal the appellant restricted his claim to Rs. 11 per bag. Taking all the circumstances into consideration and in the absence of any other proof, we accept that a sum of Rs. 11 per bag appears to be the reasonable damages to which the appellant in A.S. No. 724 of 1969 would be entitled to in the circumstances. We have already found that the Society is guilty of non-performance of the contract to the extent of non-supply of 220 bags (one waggon) before the Sugar (Control) Order came into force. It therefore follows that the appellant in A.S. No. 724 of 1969 would be entitled to Rs. 2,420 with proportionate costs throughout. As the performance of the contract in O.S. No. 3527 of 1963 did not arise prior to 17th April, 1963, the appellant in A.S. No. 725 of 1969 would not be entitled to any damages. In the result A.S. No. 724 of 1969 is allowed in part with proportionate costs throughout and A.S. No. 725 of 1969 is dismissed with costs. 25. The cross objections filed by Mr. Chalapathi Rao also deserves some consideration. We do not find any particular reason why the learned Judge could not have given costs in O.S. No. 139 of 1966. As costs always follow the event, he ought to have provided for costs and it is for this reason we have provided for proportionate costs throughout in O.S. No. 139 of 1966. Therefore the memorandum of cross objections in A.S. No. 724 of 1969 is partly allowed.

Author: T R Rao

Bansilal Fomra And Ors. vs The Thadava Co-Operative ... on 20 September, 1974

Madras High Court

JUDGMENT G. Radhakrishna Rao, J. 1. The appellant preferred this appeal being aggrieved by the Judgment and decree dated 20-9-1982 in O.P.No. 268/81 on the file of the Principal Subordinate Judge, Vijayawada enhancing the compensation to Rs. 1,75,000/- per acre for Act 4.55 of land in R.S.No. 65/A1 A as against the rate of Rs. 30,000/- per acre fixed by the Land Acquisition Officer. 2. The Land Acquisition Officer, after considering the potentialities of the land duly taking into account the importance of that area and the sale-statistics furnished by the concerned authorities, valued the land under acquisition i.e., Ac.4.55 cents at Rs. 30,000/- per acre. Section 4(1) notification was published in the official gazettee on 29-10-1975. Award was passed on 5-3-1981. On reference under Section 18 of the Land Acquisition Act, the learned Subordinate Judge took into consideration Exs. A-1 to A-16, B-1, B-2 and other oral evidence adduced on both sides and awarded Rs. 1,75,000/- per acre. It must be noticed here, that the claimant sought enhancement of compensation to Rs. 1,75,000/-per acre and the same was accorded by the lower Court in toto. 3. Learned counsel for the respondent claimant mainly contended that the learned Judge having carried away by the importance of the area, failed to take note of the legal effect of the document that was filed in support of the claim. It is true that post-notification sales will be of some help to the court to consider the increase of the rates in that particular area, but they cannot by themselves, be sole factors to be taken into consideration for fixing the value as available as on the date of notification. The crucial date for considering the market value that has been fixed by taking into account the comparable transactions is the date of Section 4(1) notification. 4. It is well settled that where sale-statistics have been considered by the Land Acquisition Officer and where those documents have not been marked after reference in the civil court, those documents cannot be taken into consideration and they have no evidentiary value. This view has been affirmed in Land Acquisition Officer, Vijayawada Thermal Station v. Nutalapati Venkata Rao, 1990 (3) ALT 305 = 1991 (1) APLJ 99 (F.B.). It is only the documents that were marked in the civil court, can be taken into consideration and none else. 5. The only document out of the transactions that is available for consideration prior to notification is Ex. A-1 dated 20-8-1973. It is a sale transaction for a small extent of land i.e., 175 Sq. y. for a consideration of Rs. 4,000/-. It works out to Rs. 1,10,629/- per acre, approximately. Exs.A-3 and A-4 are of the year 1949. Since the said transactions were of nearly 24 years prior to Ex.A-1, they cannot be taken as a comparable sale for the purpose of determining the compensation. Therefore, Exs.A-3 and A-4 have to be excluded. Then remains the other documents Exs. A-2, A-5, A-6, A-8, A-12, A-13, A-14( A-2) and A-16 which are of post-notification sales. The consideration that has been mentioned therein is taken into account and accordingly, it works out to 10% escalation on average per year. If the transactions are prior to the notification, the highest value depicted in the sale deed shall be taken into consideration for awarding compensation. If it is post notification sale, to find out the trend of the increase or standstill, we have to take into account the average, as in the case of small transactions, at certain times, the willing purchaser may pay high rate. Therefore, the average of sale transactions has to be taken into account to find out the escalation. If we take that into account, the increase will be about on an average, Rs. 10% per year. If Rs. 1,10,629/- rounded off to Rs. 1,11,000/- is taken into account by the date of notification i.e., 29-10-1975 (for about 2 years 7 months) and the increased rate of 10% per year is applied 28% (11+11+6) increase will come to Rs. 31,800/- which can rounded off to Rs. 32,000/-. That is Rs. 1,11,000/ - plus Rs. 32,000/- comes to Rs. 1/13,000/-. Normally when small transactional rates are applied to transactions of huge extents, the Supreme Court has pointed out that the percentage must be between 30% and 40%. If we take 1/3rd as the basis by giving sufficient margin, it will come approximately to Rs. 47,600/-rounded of to Rs. 47,000/-. If the said amount of Rs. 47,000/- is deducted from Rs. 1,43,000/- it-will come to Rs. 96,000/-. Therefore, we feel Rs. 96,000/- per acre would be the reasonable amount of compensation that can be determined as on the date of Section 4(1) notification. We accordingly fix the amount of Rs. 96,000/ - per acre as compensation to be awarded. Since the judgment under appeal was rendered in September, 1982, the claimant is entitled for the benefits of solatium at 30% and interest at 9% per annum from the date of taking possession of the land for one year and thereafter at 15% per annum till the date of deposit. (In this case, possession was taken on 30-4-1981.) The appeal is accordingly allowed in part. No costs.

Author: G R Rao

Land Acquisition Officer, ... vs Hindustan Commercial And ... on 18 February, 1992

Andhra High Court

JUDGMENT S.K. Ghose, J. 1. This is an appeal by the plaintiffs in a suit instituted under Section 92, Civil PC., for removal of defendant 1 from the post of mutwalli, for appointment of a new mutwalli in his place, and for certain other reliefs. The plaintiffs' case is based upon the existence of a wakf which was created by a wakfnama dated 6th Aswin 1305, in accordance with the terms of which defendant 1 is the present mutwalli. Plaintiffs' case is that defendant 1 has been neglecting to look after the estates and his duties as mutwalli in breach of terms of the wakfnama and committing acts of misappropriation. Their further case is that defendant 1 has come under the evil influence of defendant 2 who has induced him to come to an arrangement by which the wakf properties have been leased to defendant 2 in return for an annual payment of Rs. 1200 which again defendant 1 has been spending for his personal benefit. Various other acts in breach of the trust are complained of. The plain-tiffs who are three in number allege that they are interested in the trust and they bring the suit praying for reliefs which are specified in para. 22 of the plaint. These reliefs are directed both against defendants 1 and 2. Defendant 1 filed a written statement denying the allegations of malfeasance and misfeasance and con. tending that he has observed all the provisions of the wakfnama and further that he has given an Ijara of the properties to defendant 2 as an arrangement which would benefit the wakf estates in accordance with the provisions of the wakf. 2. Defendant 2 filed a written statement admitting the aforesaid Ijara and contending that he is not a trustee and as such he is not a necessary party in the suit, bud that he is only a bona fide lessee for consideration and therefore he should be dismissed from the suit. On 24th February 1934 the Subordinate Judge tried first Issue 5 on the point whether defendant 2 is a necessary party. He held that defendant 2 is not a necessary party. On 14th May 1934, the Subordinate Judge took up the case for hearing and in the result he dismissed it on his finding as to Issue 2 which runs thus : "Is the subject matter of the suit public or private wakf? Is it partly public and partly private? Whether the suit is maintainable in this Court?" The Subordinate Judge held that the subject matter of the suit is substantially a private wakf or at least partly public and partly private and that the suit is not maintainable under Section 92, Civil P.C. In that view he dismissed the suit. Hence this appeal by the plaintiffs. The first question raised in this appeal is whether the Subordinate Judge is right in determining Issue 2, namely that the suit is not liable to be brought under Section 92, Civil P.C. The answer to this will depend upon the view that is to be taken of the character of the wakfnama dated 6th Aswin 1305. 3. The document recites that the executant Nasibannessa executed a previous Towliatvnama in order to create "a perpetual wakf in the name of Allah for religious, pious and charitable purposes of all the properties" that she got from her husband excepting some which she had kept for her own personal use and that the wakf of 1305 was executed in order to meet cer-tain legal objections. The document repeats that the intention of the donor is to dedicate the properties "for the pleasure of God and in the interest of religion". She appoints herself as the first mutwalli and makes provision for the appointment of future mutwallis. The first charge on She estate is the allowance of the mutwalli and the naib mutwalli. After meeting these charges, it is provided that the net income that will be left over will be devoted to the performance of the duties specified in schedule Kha. This gives a 1st of four items entailing an expenditure of Rs. 353 annually and there is no dispute that these four items relate to public purposes of charitable or religious nature. There is a further provision that Rs. 300 is to be paid to the wakif's spiritual 'preceptor, with the proviso that, should the family of the latter become extinct, the allowance will be given to the poor or will be spent on any other item of pious acts specified in the wakfnama. After meeting all these expenses, it is provided that certain allowance will be paid to certain persons who are mentioned in schedule "Ga" "as persons who are poor and deserving of charity for their maintenance." At the same time, power is given to the mutwalli to reduce or discontinue these allowances and there is an express provision that the heirs and descendants of the beneficiaries would be debarred from claiming any right to the allowances as a matter of inheritance. Discretion is given to the mutwalli to distribute these amounts to the poor in certain circumstances. A provision is made that the donor herself will, as mutwalli, be entitled to an allowance of Rs. 30 per month and her brother as naib mutwalli to an allowance of Rs. 5 per month. At the same time there is an express provision that excluding the allowances mentioned "nothing more they will be entitled to on any account either as maintenance or any other allowance". 4. Then the document goes on to provide that after meeting all the expenses aforesaid one fourth of the savings will be set apart against unforeseen risks and the remainder will be "spent on the poor" or "for the purpose of excavating tanks, construction of bridges and similar other acts beneficial to the public". Amongst other things a mosque is provided for. The Subordinate Judge has found that it is a public mosque and this finding is not challenged. It is expressly provided further that the wakf property will not be liable to be attached or transferred for the personal debts of the mutwalli or his naib, that these officers shall not use any portion of the salami money for their personal use, and that the terms and conditions of the wakfnama will remain in force for all time, and it is noted that the donor herself had set apart separate properties to pay off her debts. These are the conditions set forth in the wakfnama. The Subordinate Judge has found that the annual income from the wakf estates will be about Rs. 1300 net, that out of this the sum of Rs. 353 as par schedule Kha has undoubtedly been set apart for public purposes of a charitable or religious nature, and that a good part of the balance has been set apart for the immediate benefit of private individuals. On this calculation the Subordinate Judge has taken the view that the bulk of the net income is to enure for the benefit of private persons. Therefore the Subordinate Judge says that it is case of a mixed wakf where a substantial portion of the benefit is allotted for private purposes and in that view it cannot come under the provisions of Section 92, Civil P.C. 5. In this Court the arguments at the bar have been directed to a number of reported cases in which the Courts have examined the terms of the trust in question in those cases with different results. In each case the question has been whether the trust was created for public purposes of a charitable or religious nature and this has been a matter of evidence depending upon the terms of the trust. In Verge v. Somerville (1924) AC 496 there is a passage in the judgment of Lord Wrenbury where he says referring to the term "public": whether it is for the benefit of the community or of an appreciably important class of community. The inhabitants of a parish or town or any particular class of such inhabitants, may, for instance, be the objects of such a gift, but private individuals, or a fluctuating body of private individuals, cannot. 6. There is no hard and fast rule that merely because there are certain provisions in favour of private individuals and certain others in favour of the public, that therefore the case falls within or without the class of public trusts to which Section 92 applies. It has also been pointed out in some oases that the words "public trust of a charitable or religious nature" should be given their ordinary meaning (Mohammad Shafiq Ahmad v Mahammad Mujtaba and that we must look to the real substance of the trust and the primary intention of the creator of the trust in every case: Shabbir Hussain v. Shaikh Ashiq Husain (1929) 16 AIR Ouah 225. In a number of oases, an examination of the terms of the trust has resulted in the view that it is substantially a private trust. Cases of this type are as follows : Sathappayyar v. Periasami (1891) 14 Mad 1, Abul Hasan v. Aziz Ahmad (1914) 1 AIR All 394, Gopal Lal Sett v. Purna Chandra Basak (1922) 9 AIR PC 253, Prasad Das Pal v. Jagannath Pal , Shabbir Hussain v. Shaikh Ashiq Husain (1929) 16 AIR Ouah 225, Ali Bakh Tear v. Hazi Khundkar Altap Hossain , Dinshaw Maneckjee Petit v. Jamsetji Jijibhai (1909) 33 Bom 509. On the other hand there are oases in which again an examination of the terms has led to the opposite result. Cases of this type are Jugal Kisore v. Lakshmandas Raghunathdas (1899) 23 Bom 659, Puran Atal v. Darsandas (1912) 34 All 468, Jadab Jha v. Satdeo Jha (1929) 16 AIR Pat 723, Sukhumal Manumal v. Uttam Chand (1937) 24 AIR Sind 230, Vaidya Natha Ayyar v. Swaminatha Ayyar (1924) 11 AIR PC 221, Ramanadhan Chettiar v. Vava Levvai Mara kayar (1916) 3 AIR PC 86. No useful purposes will be served by referring in detail to all these oases. But I may mention that the last mentioned two oases which are decisions of the Judicial Committed are likewise cases of trust in which there were provisions in favour of private individuals. For instance in Vaidya Natha Ayyar v. Swaminatha Ayyar (1924) 11 AIR PC 221, the terms recite that 2/3rds income would be givers to the wife and l/3rd first given towards the discharge of certain debts and thereafter to establish 'annadhanam' for the purpose of feeding the poor. There was a further provision that after the wife's death 2/3rds of the income given to her would be given to charity and l/3rd to the members of the family. In such case their Lordships agreed with the finding of the Courts below that the chatram so established was a public trust. In the case before us we have looked carefully to the terms of the wakfnama. Having done so, I am unable to resist the conclusion that the donor intended to make dispositions in favour of the public for religious and charitable purposes. Undoubtedly there were dispositions in favour of individuals but even Section 353 out of Rs. 1300 per annum, if that be taken to be the net income, is by no means a trifling or disproportionate provision in favour of the public. The provisions taken as a whole do indicate that they were intended to benefit the public, subject to certain payments which were also necessary for worship and charity. In that view I have no difficulty in holding that the trust was created for a public purpose of a charitable and religious nature. Therefore the suit is maintainable under Section 92, Civil P.C. 7. The next question is whether the Sub-ordinate Judge is right in holding that defendant 2 is not a necessary party. The plaint alleged that defendant 2 had undertaken the management and administration' of the wakf estate. There were prayers in. the plaint to the effect that there should be an injunction against defendant 2, that a receiver should be appointed to take charge of the estate, that defendant 2 should be ordered to be removed from acting as manager of the wakf estate and to account for his dealings as a trustee de son tort. The order of the Subordinate Judge dated 24th February 1934, shows that no evidence was adduced to show that defendant 2 is a manager. On the contrary the plaintiffs' pleader conceded that his clients were not in a position to prove that defendant 2 is a manager. Even if the Ijara in favour of defendant 2 be taken to be a collusive one the prayers set forth above as against defendant 2 could not be granted in a suit tinder Section 92, Civil P.C. In Abdur Rahim v. Abu Mahomed Barkat Ali (1928) 15 AIR PC 16, the Privy Council, after pointing out that the Courts in India are not agreed as to whether in a suit for removal of a trustee for unlawful alienation of the properties, the transferee is or is not a necessary party, held that a relief against third parties, that is stranger to the trust, is not within the scope of Section 92, Civil P.C. For the plaintiffs-appellants, in this Court, it is contended that defendant 2 is in a position of trustee de son tort. But this position cannot be maintained in view of the Ijara pottas Exs. 5 and 5 (1) which show that defendant 2 is a mere Ijaradar from defendant 1. The question as to whether a person in the position of defendant 2 should be before the Court in order that the Court may make a declaration against the defendant in the position of defendant 1 has been raised before us. In Gholam Moulah v. Ali Hafiz (1918) 5 AIR Cal 5, Sanderson C. J. pointed out that once it is decided that the claim against defendant 2 cannot be instituted under Section 92, he cannot be joined as a party in the proceedings. To the same effect is the judgment of Ashutosh Mookerjee J. It is pointed out further that the lower Court did not draw up a decree of dismissal of the suit on the ground that defendant 2 had been joined as a party. It merely held that defendant 2 is not a necessary party and thereafter it appears that defendant 2 took no part in the proceedings. In any case it seems to us that the learned Subordinate Judge is right in holding that defendant 2 is not a necessary party, and as it is not possible to grant any relief as prayed for as against defendant 2, it is not proper that he should be joined as a party at all. 8. The result is that the appeal must succeed as against defendant 1 and the suit must be remanded to the lower Court for the determination of the other questions. The appeal fails as against defendant 2. Plaintiffs will get their costs of this appeal from defendant 1. Future costs do abide the result. Defendant 2 will get half of his costs in this appeal from the plaintiffs. The hearing fee of this appeal is assessed at five gold mohurs. Patterson, J. 9. I agree.

Author: S Ghose

S. Massirat Hossain And Ors. vs Hossain Ahmad Choudhuri And Anr. on 23 November, 1937

Calcutta High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.7713 of 2009 GANAURI PRASAD & ORS Versus STATE OF BIHAR & ANR ----------- m.p. ( Gopal Prasad, J.) 3. 14.12.2010. The petitioners are directed to take fresh steps for service of notice on O.P. No. 2.

Ganauri Prasad &Amp; Ors vs State Of Bihar &Amp; Anr on 14 December, 2010

Patna High Court - Orders

ORDER C. Satapathy, Member (T) 1. This case was argued on 16.10.2002, 30.01.2003 and then to 13.03.2003. The issue involved is classification of Ultrasonic Lace Sewing Machine. The appellants claim classification under sub-heading 8452.29 which was accepted by the group Assistant Commissioner vide the impugned order-in-original. However, on department's appeal the Commissioner (Appeals) has changed the classification to the residual heading No. 84.79 in the impugned order-in-appeal. The present appeal is against the said order-in-appeal. We extract below the operative portion of the impugned order-in-appeal:- "The catalogue of M/s. Evergreen Ultrasonic Ltd., Taiwan for Model ECR 053 describes the machine as Ultrasonic Lace Machine and it states that the machine is capable of welding and cutting in a continuous curve line as well as straight line. The machine eliminates the problems associated with needles, threads and bobbins of conventional sewing machine. The machines are having multi functions to cut, weld, seam, slit, form, hold, emboss, colour coat and fold, all done in one process. According to the instruction Manual of the Machine, this imported machine can weld, cut, and emboss films and sheets of papers or cloth with frictional heat produced by Ultrasonic Vibrations. Thus the machine is not a one which can be used in any textile material/cloth but it is suitable only for thermoplastic material containing thermoplastic fiber above 65% which are melted by application of frictional heat produced by Ultrasonic Vibration, cut and sealed, apart from the other operations of embossing, colour coating folding etc. These machines therefore do not qualify for classification under 8452 which covers sewing machines intended for sewing together two or more pieces of textiles material, leather etc. Since these machines perform multiple function these cannot be treated as welding machine falling either under 84.68 or under 85.15. The machines are therefore classifiable only under the residual item under 84.79. The order-in-original is, therefore, defective and the facts and merits of the case are to be looked into once again. I, therefore, vacate the order with the direction that the same may be re-adjudicated after giving hearing to be respondent. At the time of hearing of the appeal on 16.10.2002, we had directed the learned S.D.R. to find out the practice of assessment for similar machines imported by other importers. However, he has not been able to obtain the details regarding the practice of assessment despite adjournments granted. We find that the Commissioner (Appeals) has proceeded on the basis that the impugned machine can not use any textile material/cloth but only thermoplastic material since the cutting and sewing operations are carried out by melting of thermoplastic fiber by application of frictional heat produced by ultrasonic vibrations. Therefore, the Commissioner (Appeals) has proceeded to distinguish the impugned machine from gods covered under heading 84.52 which include sewing machines and sewing needles. According to him, a sewing machine is one which is intended for sewing together two or more pieces of textiles material, leather etc. He also seems to have been influenced in his decision by the fact that the impugned machine is capable of performing multiple functions such as cutting, welding, sewing, slitting, forming, holding, embossing as well as colour coating and folding. Heading 84.79 is a residual entry in the machinery chapter, which covers machines and mechanical appliances having individual functions, not specified or included elsewhere in the chapter. Having decided that the impugned machine cannot be classified under Heading 84.52 or any other heading, he has opined that the same are classifiable only under the residual heading 84.79. 2. The short question in this appeal is whether the impugned machine can be called a sewing machine to enable its coverage under heading 84.52. 3. The learned advocate for the appellants has argued at length that the catalog and literature of the machine calls the product 'Ultrasonic Lace Machine. He also states that the applications are for production of lace clothes, sports wear, gloves, tablecloths, covers for chair, bed or pillow etc. He has also produced literature explaining thermoplastic joining techniques used in the machine. It is clear that the impugned machine does not employ needles for stitching nor uses the traditional techniques of a sewing machine for sewing together two or more pieces of textiles material, leather etc. The explanatory notes to HSN clarify that heading 84.52 includes sewing machines which in addition to ordinary sewing can also produce purely decorative work. The same notes also clarify that machines designed to do only embroidery work fall in heading 84.47, book sewing machines are to be classified under heading 84.40 and knitting sewing machines and other stitch bonding machines are to be classified under heading 84.47. The explanatory notes also indicate that the machines under heading 84.52 generally operate with two threads, on inserted by needle and one carried underneath by a shuttle though they may also be fitted with several needles and shuttles to produce a double or triple seam. The impugned machine admittedly operates without the use of needle and thread. Considering the specific entry under heading 8452 which covers sewing machine and sewing machine needles and the scope of its coverage as outlined in the explanatory notes to the HSN excluding the coverage of other types of sewing machine, we are inclined to hold that the Commissioner (Appeals) is correct in his determination that the impugned machine can not be classified as sewing machine under heading 84.52. 4. Accordingly, we find no reason to interfere with the decision of the Commissioner (Appeals) that the impugned goods can not be classified under heading 84.52. However, we note that neither side has urged before us possibility of classification of the impugned goods under heading 84.47 which specifically includes machines for making lace. Before, considering classification under the residual heading 84.79, one has to rule out possibility of coverage under specific headings such as 84.47. As such, we think it proper to remand the case to the original authority for deciding appropriate classification of the impugned goods, after affording a hearing to the appellants. 5. The appeal is dismissed but the matter is remanded to the original authority for re-classification of the impugned goods as indicated above. (Pronounced in Court)

Eskay Narrow Fabrics P. Ltd. vs Commissioner Of Customs on 1 September, 2003

Customs, Excise and Gold Tribunal - Mumbai

JUDGMENT 1. The plaintiffs appellants filed Civil Suit No. 2736 of 1975 in the City Civil Court, Ahmedabad on Sept. 10, 1975 claiming a permanent injunction against the defendants respondents restraining them from exhibiting the cinematographic picture named "Jai Santoshl Maa". Defendant-respondent No. 1 is a name and style of business carried on by defendant-respondent No. 2, who had produced the said movie. Defendant-respondent No. 3 is the Director of the movie and defendant respondent No. 4 had written the Them thereof Defendant-respondent No. 5 is the distributor and defendants-respondents Nos. 6 to 14 are the theatres wherein the aforesaid movie was exhibited in the City of Ahmedabad After filing of the suit the plaintiffs to* out a notice of motion for a temporary injunction restraining the exhibition of the movie by the defendants. On notice being given to the defendants, they appeared and showed cause. After hearing both the parties the learned City Civil Judge discharged the rule on the ground that the subject-matter of the suit did not involve any civil right of the plaintiffs and consequently did not far under Section 9 of the Civil Procedure Code. In order to complete the judgment the learned trial Judge considered the motion on merits and came to the conclusion that the title of the movie and the advertising literature thereof Cleary indicated that the mode was religious and mythological and it was natural that any person interested in mythology and when attracted and sm the picture, it would hurt his religious belief. It is this order refusing the temporary injunction which is challenged in this appeal. 2. The plaintiffs claimed to be firm believers in Hindu religion and in Gods and Goddesses of the said religion even though they do not be-, long to any qxcific sect or Sampradaya. The plaintiffs hold in high esteem all Gods mentioned in the Puranas and are firm believers of Brahma. Vishnu and Mahesh and Goddesses Lakshmi, Parvati and Saraswati, etc., and visit their temples according to convenience. The background of the suit film is since last 20 years a practice amonqst many Hindu women is prevalent of observino Wit in the name of Santoshi Maa and the said Vrat has acquired considerable importance amongst Hindu women. The person observing the said Vrat has to partake one meal on Friday. listen to the story of Santoshi Mata and distribute gran, and gur as 'prasad' and does not eat any sour items on that day. Defendants Nos. 1 to 4 have produced the said film taking the basis of the story of Santashi Mata which is fainiliar to these observing the Vrat. The said story in short is that an old had purchased and eaten 'Ambli'.lady has 7 sons, out of which she Santoshi Matta was infuriated because has more affection for 6 sons,, and of non-observance of the Vrat and, the seventh was not a favourite son. therefore, the Government officers The old lady used to serve food to had arrived and arrested the hus the 7th son which remained after band. 7herefore. the wife again serving dinner to the 6 sons. The went to the temple of Santoshi seventh son was a simpleton and Mate. and Prayed for forgiveness and was not aware of the discrimination while returning was gmted by her but his wife was intelligent and sharp. She informed her husband about the discrimination and after having been convinced aboutsuchdis crimination the seventh son went away to a distant city and obtained service in a shop. In course of time, because of his honesty and efficl nev he became a big businessman. His wife was very miserable' at home and she was sent to the forest to collect wood for fuel and was re cjuired to do considerable work. She was very badly treated and was given on ly a piece of bread and water in a broken dish. She saw some la.dies observing the Vrat of Santosht Matz~ and after asking them about the same she went to -the temple of Santoshi Mata after taking gram and gur and commenced observing the Vrat. After the lapse of one Friday she received a lefter from her husband, on the second Friday and on the third Friday she received money. Thereafter her husband got a message in his dream through Santoshi Mata to return to his wife and -accordingly he left for his house. His wife was in the temple and observing a cloud of dust she asked the reason thereof to Mataii who informed her. that her husband was returning. Her husband had gone home and when she entered the house with log of wood on her head and asked for her Piece of bread and water she was given the same in a broken dish and seeing that the husband took up a separate residence and stayed with his wife. Thereafter she wanted to celebrate the Vrat of Santoshi Meta and she had invited her elder sisters-in-law and their children. The elder sisters-in-law had coaxed the children to demand sour items for their food and the children had asked for sour items which were not given. There fore, they. asked for money and after taking the money the said children had puschased and eaten 'Ambli'. Santoshi Mata was infuriated because of non-observance of the Vart and, therefore, the Government officers had arrived and arrested the husband. Therefore, the wife again went to the temple of Santoshi mata, and prayed for forgiveness and while returning was greeted by her husband and, therefore, an the next Friday again the Vrat was celebrated at which Mataii assumed a devilish form and in spite of that the wife recognised her and waaRmtlyelated at her arrival, threw the child the Mataji who received the same in her arms and thereafter blessing all, Matail - disappeared. According to the plaintiffs the Vat of Santoshi Mats is a Vrat of folklore because - there is no reference thereto in the scriptures. There are also no ancient temples of Santoshi Mats. Notwithstanding the fact that the story is ON above, defendants Nos. I to 4 have produced the film which contains the following story. Ganpathy's sister Manse is tying Raksha on the hand of Ganpathy when, his 2 sons also are present and they insisted that their aunt Manse should also tie Raksha on their hands. Thereupon the aunt explained to them that Raksha could be tied by a sister and because they did not have sisters Raksha could not be tied on their hands. Thereupon the sons were disappointed and therefore, Narada requested Ganpathy to Produce a daughter and Ganpathy immediately produced a daughter whotiedRaksha to the sons of Ganpathy. . Narade declared that the daughter of GanpathV would be known in the world as santoshi Mata. There is no such incident in the Puranas and Ganpathv did not have a sister by the name Mansha. Ganpathv's sister's name was Usha and there is no reference in the Puranas that Ganpathv had a daughter. After the Introduction of, Santoshi Mats in the picture there is a scene of temple of Santoshi Mata and the song of arti of Santoshi Mats is being sung. Satyevati, the heroine of the said film, is returning home with her friends after performing the Aarti and on the way meets Biriu, the hero of the film. They fall in love atfirst sight, and thereafter "noth of them go to their respective houses.The father of Satyavati is also a devotee of Santoshi Mata. Biriu has brothers 'and an old mother. The brothers are cultivating lands but Biriuis an artist and is an expert in Playing the flute and singing songs. He is invited to recite Bhajan at the temple of Santoshi Mata in the village of 'the heroine Satvavati and ,therefore, Birju goes there and recites Bhalan at which time Satyavati and her friends are also present. While returning from the temple she is accosted by a villain, Bankav who with his associates tried to molest Satya-vati. At that time Birju with his.friends arrive on the scene and Birju and his friends give a beating to the villain and his associates. Bir.lu is slightly injured and Satyavati takes him to her house and in forms her father about the incident. Thereafter Birju goes to his house. The brothers of Birju thereafter arrange the marriage of Satyavati with Birju. The marriage is performedand Birju and Satyavati return home when her elder sisters-in-law deliberately cause inauspicious incidents to hap pen. Thereafter both of them go on a pilgrimage of various places of Santoshi Mata. Thereafter there are scenes of Brahmani, Laxmiji and Parvatiji. Narad goes before them and informs that he is a devotee of the three Goddesses but the people on earth are devotees of Santoshi Mata. Narada is praising Santoshi Mata and the devotion of Satvavati for Santoshi Mata. He further states that there is no Goddess like Santoshi Mata and, therefore the three Goddessesare jealous and decide to teach a lesson to Satyavati. In the meantime Brahma, Vishnu and Mahesh in the guise of mendicants go to the house of Satyavati for Bhiksha and when they return Sarasvati, Laxmi and Parvati inquire of them and, they also praise Satyavati and state that Satyavati isa staunch devotee of Santoshi Mata and thereupon the Goddesses decide that they will not allow the influence of Santoshi Mata to in crease and the Goddesses inform Satyavati to give up the devotion of Santoshi Mata but Satyavati humbly refuses to do so and thereupon theGoddesses challenge Satyavati to be prepared for the consequences. The wives of the brothers of Biflu dislike Birju and, therefore, whatever food is left over in the plates of the others is being collected and served in a plate to Birju. Satyavati sees this and informs Birju about it and Biriu also sees that. Thereupon there are disputes in the house and Biriu declares that he will return after earning money and leaves the house. Narada informs the three Goddesses that they must now have been 1pleased when the three Goddesses stated that so far only Biriu has left his house, 'we will bee what happens to him. After leaving the house Bir.lu is crossing a river in a boat and the Goddesses have the boat sunk and Biriu is drowned in the river. Satyavati prays to Santoshi Mata for the welfare of her husband, and thereupon Santoshi Mata lifts Biriu out of the river and places him on the bank and brings him to life. Birju thereafter goes to the temple to Santoshi Mata for Darshan where a rich jeweler becomes sick and unconscious. His jewellery is scattered over. Birju sees that and nurses the jeweller and brings him to his senses and returns the jewellery to him and the jeweller gives employment to Birju where BirJu' achieves considerable progress with hard work and becomes a family member of the jeweller. The daughter of the jeweller is in love with Birju. But Birju remembers Satyavati and when the daughter of je weller shows love to Birju then Birju gets up with the memory of Satyavati. At that time the three Goddesses contrive that Bidu forgets Satyavati and Birju accepts the daughter of the jeweller and forgets his house. Satyavati who is being harassed from all sides now performs the Vrat of 16 ' Friday. Narad informs the three Goddesses that on fhe completion of the Vrat of Satyavati the Maya of the three Goddesses willbe completed andthere will be reunion of the husband and wife. Thereupon the Goddesses declare that they will not allow the Vrat to be completed. Santoshi Mata asks Bir.lu to go to his home and when the Vrat is about to be completed Bir.lu returns home with jewellery, ornaments, riches etc. and everybody welcomes him but seeing the condition of Satyavati he is very angry and stays separately. Ilieve is celebration of Vrath and Satvavati invites the brothers of BirJu and at the tirne of worship and 13haian the wives of the brothers of Bidu Poar sour things in the food an- thereupon the children die and SantosM Mata is angry and there is destruction. Satyavati again prays to Santoshi Mata and Santoshi Mata ispleasedand revives the children. The case of the plaintiffs for injunctionis based ,on the ground that the movie is Pretented as a religious and mythological one even though it is rot so in fact. Persons havina interest in religion and mythology will be attracted by the picture md vAwn the same is seen by them ft will hurt their feelina as Goddesses Sarasveti, Laxmi and Parvatt are depicted jealous and are ridiculed. The diefendants have definitely distorted and abused Hindu mythology and they have depicted the mytholoff by introducing invented story. 3. The defendants have contested the application for invasion. to vrant of temporary injuriction, contending that the suit file d is not of eivil nature and no injuivetion could be issued either under the provisions of 0. 39. Civil P. C . fheremafter referred to as the Code) 43T the provisions of the Specific Relief Act. The suit had been filed by the plaintiffs with mala fide intention and to harass the defendants, adding that defendant No. I had information that the plaintiffs have previously filed a suit against the iffim narned 'H&T Har Mahadev." In Para 7 of the affidavit of respondent No. 1, it is stated that the film in question is religious and mythological one but denied that it litirt the religious feelings of Trindus. It is admitted by the defendants that some mythological boolm do not refer to the incidents of Safitosh! Maa. The said film discloses in the very beginning that the entire film is imaginary and it would he fallacy to appreciate the said film with reference to mythological books. The defendants state that it is usual and normal to show in religious and mythological films, certain incidents which go to show that Gods or Goddesses are tivitW to test the -sinceitty of the devotee and that end, the devotee is made to suffer misery and hurnihatiam In The film the three GodOessm are depicted to be saying that they tried to test the sk3oeritv of Satyavati in her devotion to Santoshi Mata and this itself indicates Ought there was no malice as alleged by iffie glaintiffs. They deny thut the movie bwts religious feelings of Erindus. The film had been exhi in a laTge number of c%es and towns. There were about 100 prints being -exhibited throughout the country. The said film was being exhibited sirme -last 4 -months, that is, &ince Ame, 1975 and -no person had complained about his religious feelkigs havinn been hurt by *m exibitian of 'the film. The film had 'been seen by about 1,46,00,000 People throughout India and none of *tem %save complained about their refigious fee%n*s being hurt. 'The fihn is being em%bited after the Board of Censor bas given certificate under the Cinematograph Att, 19S2. 4. The question is whether the present claftn of the m4ah7tiffs is of a tivil nature. Section 9 -of the Code provides Ithat tbe Court -shall have jurisdiction to try all arits of a -civil nature excepting suits of -which ,mw izarme is eltber expressly or impliedly barred. The explanation to the section provides that a suit in wbit4h rioht to property or to an of -fice is eorytested is a suit of a civil nature, notwAbstanding that such right way depend entirely on the decision of questions 'as to religious rkbes or cemn onies. Section 9 -of the Code thus prescribes the nature of the suit which a Court has jurisdiction to -erft-ertain. It can entertain tther saft of civil nature excepting the suits -of with voRnizance is barred. ne Court cannot entertain a suit which is not of a civil nature. Prima facie suits raising question of religious rites and ceremonies only am -not maintainable in Civil Court for they do not deal wJA legai rights of the parties. But the explanation to the -section accepting the said =disputed position, says that a ndt in which right to Property or to an office is contested is a suit of civil nature, notwithstanding that such right may 4wperA e - lee an the, daemon at the questions . as to religious rites cc ceremenhes. This implies two things, umnely, (1) a suit for ark affim is a soft ad a civi notare~ aed (2$ * does m* to be one if the said rizbt depends estirely upon a decision ad a questim as ix> the religiemt rites or cerwoonies. It iroplies further that question as t& reNgieva rites or - - . - ` canmet htdopendenft of such a right form the subtect-nuMder at a civil suit: vide, Sinha Ram&n.uta Jver Y_ Banga. Ramsnuja Jeez, AIR 1961 SC 1720,. 'Mere is no question in this suLt to the Property cc to an office and explanation to Section D has 100 application It is not suxaested in this ease diat the cognizance of suA is either expressly ar imphedly barred. The c of the plaintiffs is that the present case is of czvd nature which the defendants dimAe. In order to, support the cam that the Present suit is of civil nature, Mr. Modi for the appellants put forward two broad conterwons. The first eontention w thal Art. 25 of the Constitution guarantees freedom of conscience and free profession, practice and propagation of religion. Ordinarily civil right is raised to a status of a fundamental right and this fundamental. right can beenforced by a civil suit even though it can-, not be enforced under Art. 226 of the Constitution The second contention is that religious feelings ol an individual, is a part of civil right and any hurt to it is an actionable one. This is so. for 3 reasons,- (1), that an obligation is cast upon the defendants as a result of the provisions of Ss. 295 and 295-A of the I. P. C. not to destroy or defile any object held sacred by any class of persons with the intention of insulting the religion of such class of persons and also not to outrage religious feeling of any class of people by words, either spoken or written or by sign or by visible representations or not to otherwise insult or attempt to insult the religion or the reliqious, belief of that class and there is in the present case a breach of this statutory obligation. (2). the injury complained of by the appellants is not as a result of purely rrivate action inasmuch as the state has granted its sanction by issuing a certificate through the Central Board of Film Censor for public exhibition of the film. Issuance of such certificate clothes the production and exhibition of the movie with the authority or sanction of the State and the appellants are. therefore, entitled to i4junction for protection of their rights under Articles 25 and 26 of the Constitution of India hwr. infringement by any act which bears the impression of the State and (3) to hurt religious feeling of a Person is a tort. The question is how far these contentions raised by Mr. Modi with ability and pursuance can be accepted'. Now Art. 25(1) of the Constitution provides that subject to Public order, morality and health and to the other provisions of Part III, all persons are equally entitled to freedom of conscience and the right freely to Profess, Practise and propagate religion. Under this Article right to Profess is recognised as a fundamental right subject to certain limitations. This Article recognisesi the principle, that it is policy of the State to protect all religions but to interfere with none. It enunciates tradition of religious neutrality of the State. It enjoins to certain extent, that the State shall not interfere with the right to profess, practise and propagate religion. The provisions of Art. 25 of the Constitution are to be read with Art. 13 of( the Constitution and it is abundantly clear that what is provided therein is an express prohibition against the legislative interference with the rights mentioned in Art. 25 of the Constitution. In this connection the provisions of Arts. 17 and 23 of the Constitution may be noted. Art. 17 provides that "untouchability" is abolished and its practise in any form is forbidden. The enforcement of any disability arising out of "untouchability" shall be an offence punishable in accordance with law. Article 23(1) Provides that traffic in human b0ings and beggar and other similar forms of forced labour are prohibited and any contravention of this Provision shall be an offence punishable in accordance with law. The Provisions of these two Articles prohibit an individual from doing any act contrary thereto. That is not the case with Art. 25. The provisions of Art. 25 are similar to Articles 19 and 31 of the Constitution. The language of Art. 25 and its setting in Part III of the Constitution manifestly indicate that the violation of rights under Art. 25 by an individual is not within the purview of the Article; see the decision in P. D. Shamadasani v. Central Bank of India Ltd., AIR 1952 SC 59, where the Supreme Court considered the provisions of Arts. 19 and 31 of the Constitution, which Articles are worded similar to Art. 25 and the Court held that Arts. 19 and 31 were not intended to protect violation of the rights by an individual. 5-7. The next contention may now be considered and it is that certificate for exhibition of the movie granted by the Central Government clothes the production and exhibition of the movie with the authority and sanction of the State and law and, therefore, the appellants are entitled to protection of rights under Arts. 25 and 26 of the Constitution from infringement by any act which bears the impression of the State. In support of this argument much reliance was placed on the judgment of Mathew J. in Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi, AIR 1975 SC 1331:(1975 Lab IC 881), wherein the learned Judge was considering the question whether Oil and Natural Gas Commission, Life Insurance Corporation or Industrial Finance Corporation were 11 other authorities" within Art. 12 of the Constitution. The learned Judge held that the expression "other authorities" would include all constitutional or statutory authorities on whom powers are conferred by law. The learned Judge approached the question by observing (at p. 1353 of AIR): "Does any amount of state help, however inconsequential, make an act something more than an individual act? Suppose, a privately owned and managed operation receives direct financial aid from the State, is an act of such an agency an act of State? It would be difficult to give a categorical answer to this question. Any operation or purpose of value to the public may be enuraged by appropriation of public money and the resulting publicly supported operation can be characterized as a state operation. But such a rule would seem to go to the extreme. There seems to be no formula which would provide the correct division of cases of this type in~ to neat categories of State action and private action. Some clue however, to the considerations which might impel the court in one direction or the other may be obtained from an examination of the cases in this area. The decisions of the State courts in U.S.A. seem to establish that a private agency, if supported by public money for its operation would be 'state'. But in all these cases, it has been found that there was an element of control exercised by the State. Therefore, it may be stated generally that State financial aid alone does not render the institution receiving such aid a state agency. Financial aid plus some additional factor might lead to a different conclusion. A mere finding of state control also is not determinative of the question, since a state has considerable measure of control under its police power over all types of business operations. It is not possible to assume that the panoply of law and authority of a state under which people carry on ordinary business, or their private affairs or own property, each enjoying equality in terms of legal capacity would be extraordinary assistance. A finding of state financial support plus an unusual degree of control over the management and policies might lead one to characterize an operation as state action. Another factor which might be considered is whether the operation is an important public function. The combination of state aid and the furnishing of an important public service may result in a conclusion that the operation should be classified as a state agency. If a given function is of such public importance and so closely related to governmental function as-to be classified as a governmental agency, then even the presence or absence, of state financial aid might be irrelevant in making a finding of state action. If the function does not fall within such a description, then mere addition of state money, would not influence the conclusion. The state may aid a private operation in various ways other than by direct financial assistance. It may give the organization the power of eminent domain, it may grant tax exemptions, or it may give it a monopolistic status for certain purposes. All these are relevant in making an assessment whether the operation is Private or savours of state action." It is this reasoning on which the arguments of Mr. Modi are founded upon. Now the question thus involved is not a pure question of law but requires investigation of facts. It was sought to be raised for the first time in this Court by amending the memo of appeal. Under the provisions of the Cinematograph Act, 1952 Film Censor Board is established. It also provides for advisory panels at regional centres. The Board after examining the film permits it for exhibition. The principles for guidance are to be found in S. 5B of the Cinematograph Act, which provides so far relevant that a film shall not be certified for public exhibition if, in the opinion of the authority 'competent to grant the certificate, the film or any part of it is against the interests of the security of the State, friendly relations with foreign States, public order, decency or morality, or involves defamation or contempt of court or is likely to incite the commission of any offence. There are certain general principles laid by the Central Government in this connection. It is in pursuance of these provisions that certificate of exhibition was granted to the defendants for exhibition of the movie in question. To put in short the provisions of the Act relating to sanctioning of exhibition of a movie are regulatory and amount to licensing exhibition of film. There is no unusual degree of control over the management producing the movie. Merely licensing control envisaged by the provisions of the Cinematograph Act cannot be a determinative question for a state has considerable measure of control under its police powers over all types of business operations. It is, therefore, not possible to accept that this regulatory power of the State over the ordinary business of the defendants would result in extraordinary assistance of the State or that the production and exhibition of the movie is with the authority of the State or is the action of the State which would attract the provisions of Arts. 25 and 26 of the Constitution. The argument is misconceived and there is no merit in it. 8. The other contention may now be noted and it is that a legal duty or an obligation is cast upon persons and especially the defendants as a result of the provisions of Ss. 295 and 295-A of the Indian Penal Code. Ss. 295 and 295-A of the Indian Penal Code are as under: "295. Whoever destroys, dampers or defiles any place of worship, or any object held sacred by any class of persons with the intention of thereby insulting the religion of any class of persons or with the knowledge that any class of persons is likely to consider such destruction, damage, or defilement as an insult to their religion, shall be punished with imprisoment of ; either description for a term which may extend to two years, or with fine, or with both. 295-A: Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of citizens of India. by words, either spoken or written, or by signs or by visible representations or otherwise insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term. which may extend to three years, or with fine, or with both. Now there are certain wrongs which are exclusively criminal. The legislature intends to deal with such wrongs by declaring them as offences and providing punishment. All wrongs are not actionable torts or to put in other words they are not actionable In Civil 'Court. This point is raised for the first time in this Court and determination thereof depends upon the allegations made in the plaint. Now the relevant allegation in the plaints are that the Mendants have produced the movie taking advantage of I blind religious - faith of Hindus. The character of Gods and Goddess are depicted in arbitrary manner and without any authority of scriptures and in the manner that is likely to hurt the religious feelings of the Hindus. The movie is Produced for the purpose of earning money, that is, for commercial purpose. There are no allegations of mens rea as contemplated by the Provisions of sections 295 and 295-A of the Indian Penal Code with the consequence that no breach of legal duty or obligation has been alleged much less established. It is the duty of the plaintiffs to allege that there is a breach of duty or breach of statutory obligation before they can claim a right to sue. 7here is no complicit, of infraction of the provisions of Ss. 295 and 295-A of the Indian Penal Code and, therefore. the aforesaid arguments have no merits. The decisions in Monk -%r. Warbey 1935 KB 75 and Krishna Kali Mallik v. Babulal Shaw, AIR 1965 Cal 148, are of no assistance to the plaintiffs. It is. not necessary, therefore, to consider the argument of the respondents that the provisions of Ss. 295 and 295-A of the Indian Penal Code only provide for criminal liability and no liability in tort can arise from the breach thereof. 9. This leads to the last contention of - Mr. Modi that the movie depicts Gods -and Goddesses as jealous, they are ridiculed and there is a misrepresentation, because it is stated that the movie is based upon mythology and as a result religious feelings of the appellants and other Hindus are hurt. The defendants have committed a tort - and actionable one for which a civil suit can lie. No doubt, contended Mr. Modi, the respondents have a right to produce a movie and to exhibit the same. but this right is to be enjoyed by them in such a manner as not to hurt legal rights of other persons. The scenes in the president movie have hurt rellRiGus feelings of the appellants and other Hindus and have caused them mental Dain and strain. Tile reliflion embraces not merely matters of doctrine and beliefs pertaining to religion but the practice of it. Mythology is a part of religion. The religious susceptibility of persons of different religious persuasion or creed must be respected and there must be due regard to religious feelings irrespective of whether one shares the belief or not. Hence in the present ca there is infringement of legal rights of the appellants and other Hindus. There is damage to their feelings because the religious feelings are hurt which cannot be compensated in money In this case there is an actionable tort. The scenes depicting the Gods and Goddesses as jealous and wherein they are ridiculed are offensive and indecent and religious feelings of the appellants and other Hindus have been hurt. This act of the defendants amount to nuisance which is an actionable wrong. The misrepresentation made by the defendants that the story of the movie is based upon mythology though in fact it is not so, is also a tort. 10. The aforesaid arguments of Mr. Modi require careful consideration. Now in Para 6 of the affidavit filed by defendant No. 1, it is stated that the film is religious and mythological one. In Para 9 of the affidavit A is stated that mythological books do not refer to the Santoshi Maa. At the commencement . of the movie, it is stated that the entire film is imaginary and the narration of Santoshi Maa is derived from some, religious books and folk tales. It is not stated in the film that it is mythological Picture. It is only in the affidavit that it is stated that the film is religious and mythological. Reference to mythology in paragraph 6 is not totally untrue because Gods and Goddesses, namely, Ganpathy, Narad, Saraswatip Laxmi and Parvat! are referred to in mythology and are also shown in the movie. It is not the statement of the defendants that Goddess Santoshi Maa is a mythological figure. It is clearly mentioned in the introduction that Santoshi Maa narration has been derived from religious books and folk tales. In Ex. 30, the affidavit of defendant No. 1, it is stated that the story is based on incidents narrated in Kalyan Magazine, Shukravar Vrat Katha and Shiv Mahapuran and other relevant literature on the subject. The reference to religious books does not mean reference to books on mythology or Puranas. There is no dispute that there are certain religious books which give the story of Santoski Maa and these are considered as religious books. The Warning given before the actual movie commences has to be kept in mind and the movie is to be viewed in that light and not in ignorance of that. In view of the foresaid statement made at the commencement of the film it cannot prima facie be accepted that the defendants have made anv misrepresentation as alleged by the plaintiffs, viz., that the movie is pass~ ed off as a mythological film. And after all what is 'mythology'? The word mythology comes from the word myth and dictionary meaning of the word is fable. a legend, an invented story, a fabulous narrative founded upon a remote event, fictitious primitive tale. It is stated in the Webster's New Twentieth Century Dictionary, Unbridged, Second Edition, page 119 1, that parts of mythology are religious, Parts of mythology are historical, Parts of mythology are Poetical, but mythology as a whole is neither reltgion nor history, nor philosophy, -vor PoeaT. It comprehends all theft together under that peculiar form of expression which is natural and intelligible at a certain stage, or at certain recurring stages in the development of thought and speech, but which, after becoming traditional, becomes frequently unnatural and unintelligible. Mythology is after all traditions Interwoven with the history, origin, deities, etc. of a specific people." Taking this usual and dictionary meaning, it cannot be said that there Is misrepresentation about the film when the same is referred as mythological because in the story of the fund are interwoven the religious parts of mythology with historical parts or tradition is interwoven with history with a warning in the start that the entire film is imaginary. I therefore, do not agree with the I find in of the trial Court that the movie. is passed of as mythological. 11. Now nuisance is a word which 'is not capable of exact definition but may be defined as anything which is Injurious to health or offending to the senses and which causes injury or damage or annoyance or discomfort to others. In order that nuisance is an actionable tort. it is essential that there should exist (1) wrongful act; (2) damage or loss or inconvenience or annoyance caused to another. The latter alone can give no right to a legal action. Inconvenience or annoyance or discomfort to be considered must be more than mere delicacy of fastidiousness and more than producing sensitive personal discomfort or annoyance. Such annoyance or discomfort or inconvenience must be such which the law considers as substantial or material. A- person must submit to discomfort or annoyance in the interest -of the public generally or caused by lawful action of another. The question what constitutes nuisance is one which the Court has to determine. The Court has first to aseert,4n what in the circumstances is the legal duty of the individual alleged to be in default. The right to an injunction deneends on the legal right and this must be determined before any relief can be granted by the Court. A strong case need be made out by the plaintiff. Having noticed the principles of law, the objections of the plaintiffs to the exhibition of the defendents movie may now be considered. The objections of the plaintiffs that the film is based on the religion and mythology is considered here in before and the same may not be repeated. The second and the main objection of the Plaintiffs is that in the film the three Goddesse , Saraswati, Laxmi and Parvati have been depicted as jealous and arrogant. The learned trial Judge has observed in Para 4! of his judgment; "the role assigned to the three ancient Goddesses is that of a villainous character and nothing more or less than that." The case of the plaintiffs, therefore, is that the film would hurt the feelings of the lowers of Hindu religion. The question then is can it be said that any right of the plaintiffs is infringed so as to give right to file a civil suit. The answer to this question ' is, in my opinion, in the negative. Now the defendants have obtained a certificate of public exhibition under the Cinematograph Act and the certificate granted there under in the opinion of the Board of Film Censors is that the film or any part of it is not amongst other things against Public order, decency or morality and is not likely to incite the commission of any offence. The Board of Film Censor . s is the body who usually grants the certificate, it is a body fairly well conversant and experienced in the matter. After care fully examining the film and keeping in mind the -principles of guidance, the Board of Film Censors has certified the film. As the certificate of exhibition is granted to the defendants, they have a right to exhibit the film. The certificate is not challenged in this case. Exhibition of the film is a legal right of the defendants. The motion of temporary injunction is one which asks the Court to interfere with the legal right of exhibition of the movie by the defendants and this interference is sought on the ground that the religious feelings of the plaintiffs and other Hindus will be hurt. The plaintiffs must establish existence of such right and such curtailment of the-right which will be actionable in Court of law. The plaintiffs and other Hindus may have reverence for the said Goddesses but what legal right of theirs is curtailed by the defendants by exhibiting the film in exercise of the prima facie legal right? The defendants exhibit the film which is certified and they do so in exercise of their legal right. No legal right of the plaintiffs is in fringed. Mere fact that the defendants' movie shocked the religious sentiment of the plaintiffs is not it self a matter which gives rise to a cause of action. No person is entitled, to whatever religion he may be long, to enforce his religious views upon another or to restrain that other from doing any lawful act, because it would not fit in with the tenets of his particular religion. It is not the case that the action of the defendants is mala fide. Every one is entitled to his own religious be life but he cannot force them upon another so as to restrain the - other from dealing with right or property in a manner incompatible to those beliefs. The defendants have clarified at the very commencement of the film that the entire film is imaginary.. The folk story of Santoshi Mata is in vogue since last many years and there are religious books which refer to it. It% may be that the feelings of the plaintiffs and persons like them, would be aroused on seeing the film and annoyance may be the result but the annoyance is not such that a Court of law can take cognizance or recognize. It is true that tort is not affined. Torts are infinitely various and not limited and confined. The novelty of claim may arise and Court may recognize a noval claim. India is a country where various religions are followed and this has to be kept in mind while evolving a new tort. The hurt to religious feeling is not recognized by the Civil Court. In Behari Lal v. Ghisa Lal, (1902) ILR 24 All 499, the facts were that plaintiffs sued for injunction restraining the 'defendants from obstructing them in cutting certain branches of a pipal tree overhanging their property. The pipal tree grew in the enclosure of a temple, and the resistance was based on the ground that the tree was an object of veneration to Hindus, and that the lopping of its branches would be offensive to the religious feelings of the Hindu community. The Court in this case observed: "The question is serious one in this country, because, on the o-* hand, it is highly undesirable to insult or irritate the religious susceptibilities of the people; and on the other, one has to look for the existence of some principle of law by which the general feeling of one part of the population can be allowed to override the ordinary rights of property vested in another person. Mr. Tei Bahadur, for the appellants, contends that there is no such curtailment of individual right of property known to the law, and Mr. Malaviya, for the respondents, is unable, out of the long array of Indian cases, to produce a single authority in support of the judgments of the Courts below." The Court further observed: "The proposition put before me is, that if the general body of a --muhalla entertain a feeling of reverence towards any tree, no individual owning a house in that muhalla can seek to lop off any of its branches which may overhang his property, even though they may prejudicially affect it. That is a proposition unsupported by authority and inconsistent with common sense." In Vathiar Ramanuja Aiyangar v. Aiyanachariar, (1912) 17 Ind Cas 219 (Mad) Sundara Aiyar. J. referring to an application for temporary injunction to restrain the respondents from carrying the idol of Vedanatha Desikar in procession through certain streets, observed: "It seems to me that where no pecuniary or tangible loss is shown. it would not be right to grant stay of execution merely on the ground of annoyance to the feelings of the appellants . I think it, would be a sound rule to act upon that mere annoyance to feelings cannot- be a ground to grant stay of execution." In that case the only injury complained of was that the religious feelings of the community would be outraged and the petition for temporary injunction was dismissed. In Khaii D6dda' v. Nanjiappa, AIR 1939 Mad 642, the facts were that the Hindus of a village objected to erection of a Musjid on the land owned by the Mahomedans, on the ground that the feelings of the Hindus would be aroused if the construction of Musjid was allowed. On this basis an injunction restraining the Mahomedans from erecting the Musjid was asked for. The Court held that the land belonged to Mohomedans and the Court could not grant an injunction prohibiting the Mohorne dans from 'erecting the Musjid on the ground of mere annoyance. The Court further observed that it must be shown that some substantial any novanoe and one which the Court can recognize, had been actually committed, before the Court could interfere. The aforesaid decisions are no'doubt old but what is decided therein applies with more force in the present times wherein the ideas about religious beliefs are fast changing and are more liberal than the Orthodox - beliefs which were prevalent in those olden days. It is thus clear that the Courts of law !have not recognized hurt to religious feelings as a civil actionable wrong. 12. Mr. Modi relied upon the decision in Owens'v. Liverpool corporation.' 1939 (1) KB 394. In that case a funeral procession was going along Scotland Road, Liverpool, when a tramear was so negligently driven by a servant of the defendants that it violently collided with the hearse, damaged the hearse and caused the coffin to be overturned, with the result that the mourners at the funeral, who were relatives of the dead man, suffered severe mental shock. The aged mother of the deceased, an uncle, a cousin and the cousin's husband, sued the defendants for damages for the shock injury suffered by them. The Court in this case considered an English law prior to the decision and the law was that no action in tort lay for mere mental suffering unaccompanied by physical harm though caused by the willful act or carelessness of - the defendant. This principle was departed in this case and damages were awarded to the plaintiffs therein on the ground that the defendants were guilty of negligence and real injury genuinely had been caused for mental shock. Owens's case was not accepted by Lord Thankerton, Lord Machmillan, and Lord Porter in Hay or Bourhill v. Young, 1943 AC 92. In this connection Lord Porter observed: "With all respect, I do.not myself consider the Court of Appeal justified in thinking that the driver should have anticipated -any injury -to the plaintiffs as mere spectators or that he was in breach of any duty which he owed to them." Therefore the pertinent question- "I for determination must be, is there any legal duty violated by the wrongful act? There must be wrongful act and violation of the legal duty. In the present case these ingredients for the reasons stated aforesaid are not established and, therefore, the learned trial Judge was right, in my opinion, that none of the plaintiffs civil rights is involved and therefore, the suit cannot fall under Section 9 of the Code. 13. Granting of injunction is governed by the provisions of Order 39 of the Code and Section 41 of the Specific Relief Act. Sub-rule (1) of Rule 2, of Order 39 of the Code provides that in any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit, and either before or after judgment, apply to, the Court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained of. Section 41(f) of the Specific. Relief Act provides that an injunction cannot be granted to prevent on the ground of nuisance, an act of which it is not reasonably clear that it will be a nuisance. In cases of interlocutory injunctions in aid of -plaintiff's right, all that the Court usually has to consider is whether the case is so clear and free from objection on equitable grounds that it ought to interfere to preserve property without waiting for the right to be finally -established. See Halsbury's Laws of England, Third Edition, Vol. 21, page 364. In the present case in any case the plaintiffs cannot get an order of injunction of the Court against the defendants as it is not reasonably clear that the exhibition of the film will be a nuisance. 14. The next question is of the balance of injury. In order to grant temporary inj unction the principle of balance of injury is a material one. On this point the learned trial Judge has given the judgment in favour of the plaintiffs and it is attacked in this Court. The learned Judge came to the following conclusions: "In fact a folk story prevalent for the last about 50 years has been mingled by the author with mythological taint to impress, upon the audience to feel that the theme being shown to them is a part and parcel of mythology. The film in question was arranged to be shown to the court; having seen the film and the script produced at Exh. 35/1, if one were to speak in the legal parlance, an attempt is made by the defendants to pass off their theme as a mythological one to the orthodox believers . ... ..... If now, such a theme is being exhibited to the public when there is absolutely no mythological basis for it, it is very clear and patent that the tenets of the religion are being infringed if for a moment one considers Hindu mythology as part and parcel of Hindu religion The defendants have by introducing their theme, in my opinion deviated totally from true mythology understood as above. Again, it is well known that the Gods and Goddesses in Hindu mythology have been imputed by the authors of mythological scriptures with elements like anger, envy, hatred etc, In each mythology the particular God or 'Goddess to which it relates, is shown as superior and the rest as subordinate in rank or even much lower and much weaker. But then, all the aforesaid mythology. Speaking collectively thereof, has already' become part and parcel of Hindu religion and is quite too ancient. What ever it is, it is that mythology which is being revered by the followers of Hinduism. But, this aspect Of the mythological part of the religion does not mean that in the Present day, an author of a literary work or a Director or producer of a film has a right to further distort, deform of abuse ft. And if this view Of mine is correct one, to that extent, the defendants have gone be Yond their own scope of authority... ...... that the defendant's movie, as a whole, as well as in aforesaid parts or aspects discussed by me earlier thereof, would hurt the religious feelings of the followers of the Hindu religion and in that connection, I would also further state that the defendants had no right to depict the theme as mythological or religious one when, in fact, no such theme existed in Hindu mythology... ......the citizen in the present century has no right to impute vices such as envy, ego pride, prejudice, bias or vengeance or the like in the Gods or Goddesses of the Hindu religion and its mythology or other wise depict those Gods and Goddesses in any unseemly, deformed, abusive or lowering manner as the defendants have done." Now Santoshi Mata is referred in religious books. There are admittedly folk tales in her connection and as said -hereinbefore there is no case for passing off action as observed by the learned trial Judge in the sense that the Sm is passed as a mythologies am. What in necessary, to CDnsider Is overaH effect of the movie and the Mn is to be seen and appreciated as a whole. The incidents dxnlld not be broken from their respective consist; no pert of it should be isolated fmm the other At the 1 01 FM of the picture warnbg is given that the entire movie is Imaginary; at the end of the. Picture, ft is dewly shown that the three adtnowledged ancient Goddesses Wd in the Picture that they were testing the devotion of Satyavati to Santodd and it w4m with this holy and bona fide intention that they inflicted miseries upon her and they were happy that Setyevati successfully came cut of them Together with We num also take into account what defendant No. 1 has stated in Para 14 of his affidavit, namely, that ft film had been exhibited in large number of cities and towns; there were about 100 prints being exhibited Onvughotit the country, the said film was being exhibited since last 4 nxmft throughout the country avid no pea had complained about his or her religious feelings having been hurt by the exhibition of the film. In Zi , r, St. the affidavit of defend No. 4, it is stated that so far as per available record, the film had been man by 1,45,00,000 people Giroughout Didia. The aforesaid facts stand nemtroverted. The suit is sought to be filed in the representative capacity. but so leave of the Court has been obtained by the plaintiffs. Plaintiff No. I is Jain by religion, and the two plaintiffs alone have come forward with an allegation; that the exhibition of the film hurts their religious feelings The defendants have right to exhibit the film. in pursuance of the certificate of exhibition obtained by them. The film is not publicly exhibited. that is to say it is not being -shown to the "who do not want to Bee it; it is - shown on payment; People have to use their volition to gee the picture. There is no compulsion to see the film. If the feelings of the plaintiffs an hurt they may not see the movie 801n. The plaintiffs may propagate against the picture urging the f*How religionists not to see ft. ft more be that the religious feeling of the plaintiffs is hurt, but considering all the material circumstances of the case as stated herein above, I am of the view that balance of convenience is in favour of the defendants. The expression of opinion herein before is for the purpose' of temporary injunction only. 15. The result, therefore, is that this appeal of the plaintiffs is dismissed and the impugned order of the learned trial Judge is confirmed. There shall be no order as to costs of this appeal. 16. Appeal dismissed.

Ushaben Navinchandra Trivedi And ... vs Bhagyalaxmi Chitra Mandir And ... on 12 February, 1976

Gujarat High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM RCRev..No. 97 of 2007() 1. MUHAMMED ISMAIL @ ANEES, AGED 23 YEARS, ... Petitioner Vs 1. TOM THOMAS, AGED 63 YEARS, ... Respondent For Petitioner :SRI.T.M.CHANDRAN For Respondent : No Appearance The Hon'ble MR. Justice PIUS C.KURIAKOSE The Hon'ble MR. Justice P.S.GOPINATHAN Dated :23/09/2010 O R D E R PIUS C.KURIAKOSE & P.S.GOPINATHAN, JJ. ------------------------ R.C.R.Nos.95 & 97 OF 2007 ------------------------ Dated this the 23rd day of September, 2010 O R D E R Pius C.Kuriakose, J. It is submitted by Sri.T.M.Chandran, learned counsel for the revision petitioner, that the issue involved in both the RCRs are settled between the parties. We record the above submission and dismiss these revision petitions. PIUS C.KURIAKOSE,JUDGE P.S.GOPINATHAN, JUDGE dpk 

Muhammed Ismail @ Anees vs Tom Thomas on 23 September, 2010

Kerala High Court

[Section 353] [Complete Act]

Central Government Act

%'-*-'-M 'M nnnfifliflnfl nu-fin t-avunA :.. nnuuvnwusn ruun uuwxl Ur I&Ai<NA'lAI£A HIGH COURT OF KARMATAKA H161-1 COYJRT OF KARMAYAKR HIGH COUR1 1 IN THE 211911 9903'!' or Q AT BANGALORE % g , _ Dated this the 23"' day of % 3 THE MANGALORE C.A'E'H.QLI£3 _ . CO--OPERA'!'IVE EANKVL-mg) u * REP BY:Ts__MAriA<3Erz; _ _ - MORGARTAGATF. BRANCH A ' V' MA;~;c:A.LC'RP.3+5?s:;o4-.V. " PE'I'§'f'lONER Vfldv. for '''' " §'"§€ij3E£§f'€ii'Asst)ciai3cs, Adv] Am . A, Rsétofiamkfiwéfibm OFFICER AND TAXATION AUTHORITY ' 2.;-MANGALoRE;'575<)o1 " .COMMISSIONER FOR TRANSPORT " 'V-VS}-{IMQGA nrvzsaow s1~:;iMc2=<3A "'VSM.'1'"vJAYASHREE " _ W10 8. SURESH, MAJOR "SRINIDHI APARTMENTS CHILIMBI POST MANGALORE-575004 RESPONDENTScertain amount of A vehicle registered in It appears that the in payment of and the pefitioner- on 31-12-2002 for the Respondents" by Ms Niloufer Akbar, Advocate and the [By Ms Kfioufcr Akbar: AGA R-1 as 23 uuvuu '*'-"'-'*"A' *,.. ivfiniv-«IMAM ntun LUUKI ur KAKNATAKA HIGH COURT OF KARNATAKA HIGH COURT 0?' KARNATAKA HIGH COUR1 .' 'A who touch the vehicle. 2 THIS WRIT PE'I'l'fiO!'¥ IS F3LED UNDER AR'rIc1,E3€226 AND 227 OF' THE coNs'z'rI'U'I'IoN OF' INDi.A PRAYING 're »QEJ:A$H Ti-IE DATEQ 2~1~29:9§ Ifitzmo 23"'! THE F'IRf::"T'}%§$£§,.?Oif§D.-¥§NT vm-E ANNEXURE»-I-I AND E'l'C., " T. THIS PE'}'I'§'ION comma omvog or2'tSEi§S:: comm' MADE THE FOLLOWING: _ 2_R_M Writ petition by 3. of dues from the third respondent. motor vehicle has some special V be compared to Mithas and affects all Under the Motor Vehicles Taxation Act, 1957 [for short, A 5.' Act], any person who is in possession of a registered ' motor vehicle will automatically incur liability for payment of motor vehicle tax so long as such registered motor %/ 3 -- an Ilwwwmuun II"IIl'IlII" I I ..... .........._. gr ...-..........-..... um. wmu Ur nnxnnlmm man court? as rwzumnxa ms:-1 calm: as ICARNATAKA mar: come' 3 vehicle is pamm by the person. gs in addition to the liability tastenm on the vehicle. ' 3. The petitionm' registered mater vehicie an bus «- aatomaficaily 2 6? remm Gama' m far gs of motor vehicle tax is gmson me pemiomr to the authority date of seizure and it appeéiajttxat at the tra.__nsp_ortcrs' yggu ax .It mat tmautnoafity peraaittgcx _pe¥_:_itioner to tow on cm ._ at Bangalore. F'ur£'ha' story is that int.-imat& the taxation authaorfiies that the * was scraped and said to a scrap dmier in terms sf dated 19» 104995. The_pci_1'tio1_1§:r_falkawed up u 'ujwith a request to the authgréfies undm the Mater Vehicles _-.. ...._ .. ...-pg. -~»--Ly, cu-u\a'u~u.MI\l-I nmrri c...uuIu Ur KARNATAKA HIGH COURT or KARNATAKA HIGH comm" OF KARNATAKA HIGH com" §"'= 4 Act, 1988 [for shot, MV Act] seeking fez' of the certificate of registration with effect fitzm 4. It appears as a folIo:w--t:iJ;$AAbVa'L§:ti£)n,j senior motor vehicies of the regional Bangalore vfiited where the vehicle had 'éiubmitted a report indicating garaged at the piaoe and it date. 5. followed up its request for '1*~;'é:Vgist1'atioI1 with letters dated 9-5- 2':(:)3()€,>A,..T.:'12~:5--iéf§()t'3',**"I8-li2-2006 and 22-1-2007, mpies of at Anne:-mre--D to G respectively to .' While it is not very clear whether the A acted upon the rmuest of the petition:-,1' k ~% cancellation of regsuation, it appears that the h K ___5a11thorities had not paid much attention to the request of the petitioner for canoellafion, may be for the ostensible FIAIIIUC gm: -pn---.-_- ..-_ -___.__ It I-l'l0l"Ii\r"l 8 "VI I --vu"r§1_. nnnwnunnn rllufl LUUIG OF KARNATAKA HIGH COURT OF KARNATAKA HEGI-E COURT OF KARNATAKA HIGH COLFR1 6 6. Unfortunately for the petieoner, it this appeal was returned with an 25:12. 2007 [Annexure--L to the the petitioner had not A. of ': payment of admitted appeal, the appeal, T. for re- presentation afrer V requirements in terms of of read with Rule 3 1A(1)(a_3 Vehicles Taxation Rules, 1957 {for ~ e 7. comp§:3m1%e misery of the petitioner, the followed up with a flesh demand 23»:-2003 [Annexum--M to the writ petition], . petitioner to pay a sum of Rs '7,24,870/-- efith at the rate of 20% on this amount, " to be the tax due for the vehicle for the period 1'-2:-2002 up to 31-I-2003. However, this demand notice did not eever the tax liability for the period 1----2---2003 to _._--_._... ._ _._ ' """""' "' "'""""""""' ' '"-"' '-V'-*"A',.. S-_f' 'V'"\"MWu\H Wlvn -uuru vr nunavnunnn I-nun uuulu ur EU-\l(!Vll-\iHl\H rllurl KAJUKI ur tu-\:uVH:Aru-I ruurs gvux 7 31--4--20o4 and also a credit of a sum of_4R_s~..:_:25,0OO/--, which had been paid earijer. appellate authority the L» at Armexure--L, returning also the fresh demand {Hider £V2V8~I-€008, the 8. It is aggieved by of pe1:itioner--banker 9. Notices had the respondents. third respondent; has "':11n-represented. «-taken up for disposal and I have heard _Sri counsel for the petitioner and Ms vdflilvoufer AGA for respondents 1 and 2. '.- s"":"°;L1b_n§.ission of Sri Prasanna is that in the first the demands raised are not preceded by any '--iensortunity nor the demands preceded by a reasoned Wm" W ""'""""M "M" ""'""','"""'_:r M""""""" "*9" Uuuxi or KARNATAKA HIGH COURT or KARNATAKA HIGH COURT or KARNATAKA I-{SGH come 8 order to support the same and therefore at Axmexure-H and M are to be quashed. 12. The alternative submis~sioii" 'is AV authority was not justified. endorsement to of admitted tax for had disputed the appeal and there was no is no occasion for issue ' even in terms of Section_ i5{'fi3v{a) _' 13._ learned Addifionai Government for the first and second respondents, V hand, submits that the petitioner is obviously .' tax; that it is for the pefltioner to produce ef payment of admitted tax or no objection from the u e fi'jthority and it is also for the petidoner to satiety the appellate authority to this effect, as the appeal papers are only retxnned and the appeal is not rejected and therefore 52/. I Iuwunz W5 nu-nnavawuunps l"lll\Jl"l nu-uni. AMKIIMIHRH HIGH LUUK3 U!' KIKKNAIAKA H36" IJOURI O? 9 the matter need not be examined by this also submitted that the action taken not authorities but also by the _app¢Ilat;§;"' is; justified in terms of the p1'ovis§§o;1s. §>f 'j 14. Section 15 of the 15. who by any order "c}"a. made and in the 3 to the has Karnataka Act No 8 ca' agmieved-by..vany'order ofa Taxation Authority " maywithfintheprescribed authority. " appeal shall be entertained by the proof of the payment of the tax not 4% Vvwdfsputed in the appeal (b)NotwithstandingtIman%alhasbeen preferred un&2' (1L thetaxarother amountshallbepaidinaccordancewiththe order against which the appeal has been preferred: Io tr' oruvw "W" I '--'-4UI:AI,.-ggr nnmwatann ruurl LUUKK U? KARNATAKA HIGH COURT OF KARNATAXA HIGH COURT OF KARNATAKA HIGH COUR1 10 Provided that the appellate % may, in its diwretion, give darwuams o satisfaction in such in (3) Any appeal It is becausoof §§ub--wction 2(a) of Section submits that tiw retu1n:'r;g:V .£i'fJpea" V' the appellate authority 15, _ of action to the petitioner is to re- the to the appeflate authority pointilg out ' having disput$ the entire amount .' terms of Annexure-H, there was nothing V A to be mid and therefore the appeal is to be A 4_ by supporting the case fiom the language of o fme clause-(b) of Section 15(2) of the Act, even now to submit that the demand in terms of Annexure-M is not to 4.4....._.._ ._ __- aw in nu-urn: Ir-nnpwlulu ..........;_. gr .............w. nun": wuulu w mmmnm men CGURT or xAmAmcA men comer es KARNATAKA HIGH com 11 be frowned upon for the reason that the apml having been prefemed, the f nevertheiess enforce the 16. It is also subn:1itte,d__bY liabifity under Section 4 isiaiiiiiiatgmty rims on the registered owner mifioeeession of the vehicle; thai; was ganted the eondition is violated; that the vehicle which had viiiizilotit prior permission of the petitioner automatically loses the benefit ofV_Ve:iem§*otion and when once the exemption is ' of Section 4 of the Act, the entire liability for ._ the period during which the vehicle was stationary and off the roads and further at * fee on that, it is only proper that either raising a. demand of this nature or making V the person" Iiabie to pay this amount, a proposition notice 6/ ......... .. ...--.....n.n.u-. us-an \.uusa_. muuuwu-u:-\:\A rwurri LUUIH U!-' KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNAYAKA HIGH COUR1 12 proposing the acfion and the rwson for is indicated to the perwn who was gven user', the person is hard and pmiperi _ in accordance with the Act was; V the authorities under accustomed to raising suoh: any reason and without to the person concerned. _ Ma:y tax is payable in Whfle the tax may be normal course, in a of when a person has given a the non-use [of the vehicle] and the inspecting authority that the % road and parked on a partzicuiar point of .' which time, the exemption fiom payment of V it is only proper that the authorities give a A "ii opportunity to the persons like the petitioner, and pass orders. it is for this rwson, the demand in respect of the period subsequmlt to 1-2-2003 till 3O-~11-~ &/ 'II'Vlvl'WIIl'll VI ................. |'u\:u1 ........f._. 3r Mann..." niun wmu w mmnmm men cmm or xAmAmcA mm! COURT 0% KARNATAKA HIGH COURE 1 3 2005 - part of Armexure-M -- is quashed, by a writ of oetrtiorasri, with liberty to the taxing i-o_ p ut the petitioner and the third 6:1' to pass orders in accordance 'V x 1'7. In so far as the apfiéal papers by the appefiigtc (Sf A1mexure«L is cc-ncemed,_I_ am qf not necessary for the appenaite the mpers for the reason of the appeal was a deméxfl the entire amount was whether justified or not, so, .Vn't:«.. amount and there was no scope for of clause-(a) of sub-section (2) of Section 15 ._ {if this Ifin, Annexure-L is quashed, by iéeue- df'wfit of and the appellate auttmity is 'A to: consider the appwl on merits and in rdanoe with law. The petitioner is directed to present vhlvtll war! I\-l'\l\lV!'1!l"\I\.l"'| _ _ . """' """""Af?o-'f_:" Mm-Wifim mun noun: or KARNATAKA HIGH COURT or KARNATAKA HIGH COURT 0% KARNATAKA Ham-1 com-21 14 the appeal Within two weeks fiom today to eppeflate authority. 18. In so far as the demands iiiV of Axmexure-H, which is e1V11)jec'f;'V..p§;a£ter . vetider Axmexupe-L, is it erue the authorities the pendency of the authority having been of.-ozioviso to Section 15 to issue a {he payment. part of it or in if the appe11ant--applicant who foe 'direction satisfies the appellate s,1;;;t1io::ity sumcient security etc., and as the had no occasion to examine this ._ ,~AV.':_"jt is only fair that the respondents-authorities cio 1..1ofi e'1'1'iV"o2'oe the demand under Annexune-H pending the A ' " appeliate authority passing orders oxi the application, if already filed or to be filed by the petitioner, subject to the passing of orders on the request. V 1 5 19. Writ petition is allowed accordingly. 20. Rule issued and made absolute. " ' 'P31! yw %._v_3\JJ that sifigzxsfl L3 "£333 tnzr. Sgmgzfls hfid 3.33..» fins: £¢£..¢Zn.&£ L3 _u--33J 39-: §=.:¢r:=5. ._.m.......L 5.333 23.: 'u-dn--d..\Zl¢3-- «=3 --¥3Nu..J

Author: D.V.Shylendra Kumar

The Mangalore Catholic ... vs Regional Transport Officer on 23 June, 2008

Karnataka High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 32196 of 2010(Y) 1. ANEESH,AGED 32 YEARS, S/O.ALPHONSE, ... Petitioner 2. SHAN, S/O.NAGURKANI, 3. BIJU, NIRANATH HOUSE, 4. RAJA, RAJA BHAVAN, Vs 1. THE SUB INSPECTOR OF POLICE, ... Respondent 2. THE SECRETARY,VANDIPERIYAR For Petitioner :SRI.T.A.UNNIKRISHNAN For Respondent : No Appearance The Hon'ble MR. Justice K.M.JOSEPH The Hon'ble MRS. Justice M.C.HARI RANI Dated :14/12/2010 O R D E R K.M.JOSEPH & M.C.HARI RANI, JJ. * * * * * * * * * * * * * W.P.C.No.32196 of 2010 ---------------------------------------- Dated this the 14th day of December 2010 J U D G M E N T (K.M.JOSEPH, JUDGE) (M.C.HARI RANI, JUDGE) jsr // True Copy// PA to Judge  W.P.C.No.32196 of 2010 6  W.P.C.No.32196 of 2010 7 K.M.JOSEPH & M.C.HARI RANI, JJ. .No. of 200 ORDER/JUDGMENT 30/082010  K.M.JOSEPH,J The petitioners have approached this Court seeking the following relief: i) issue a writ of mandamus or such other writ, order or direction, directing the 1st respondent not to harass the petitioners and other autorickshaw drivers while parking their vehicles on the road margin in Vandiperiyar town. 2. Briefly put, the case of the petitioners is as follows: 3. The petitioners and many similarly situated persons are plying their autorickshaws in Vandiperiyar for eking their livelihood. Vandiperiyar town is situated on the sides of Kottayam-Kumaly National Highway. For the past 15 years, autorickshaws in the town are parked on the road margin after leaving about 8 to 10 feet distance from the shop rooms. They are not causing any obstruction to the shop owners. At the instance of certain shop owners, the 1st respondent is demanding  W.P.C.No.32196 of 2010 2 that the petitioners should remove their vehicles from the road margin where it is parked. Ext.P1 series photographs are produced to show how the autorickshaws have been parked. It is, while so, that additional respondents 3 to 10 came to be impleaded. They have produced Ext.R8(a) judgment of the learned Single Judge and they would point out that in the said judgment, this court directed as follows: W.P.C.No.32196 of 2010 3 4. It is pointed out that pursuant to the same, Ext.R8(b) resolution is passed by the Panchayat on 10/06/2010. Ext.R8(c) purports to be a complaint submitted by the Panchayat before the Circle Inspector of Police, Kumily seeking police assistance. 5. We have heard Adv.Sri.T.A.Unnikrishnan, the learned counsel for the petitioner, Adv.Sri.Liji.J.Vadakkedam, the learned counsel for respondents 3 to 10 and the learned Government Pleader. The learned counsel for the petitioners would reiterate the allegations and would submit that the autorickshaws have been parked on the side of the National Highway and the police may not have authority to interfere in the matter. He would further submit that at the parking spaces provided pursuant to the decision of the Panchayat, only about 10 vehicles can be parked and there are other autorickshaws having permit and they are given permission to park in the Vandiperiyar town. 6. The learned counsel for respondents 3 to 10 would point out that the position shown in the photographs may not actually reflect the ground reality and it is pointed out that if the petitioners are aggrieved by the decision of the Panchayat, they have to make out their remedies elsewhere. W.P.C.No.32196 of 2010 4 7. The learned Government Pleader would submit that the police authorities are only giving assistance to the Panchayat as per the request of the Panchayat Secretary. 8. This writ petition is filed on 20/10/2010. We must notice that prior to the petitioner approaching this Court, admittedly R8(a) judgment has been obtained at the instance of respondents 3 to 8 wherein this Court directed the Secretary of the Panchayat to take a decision and further that if the Secretary requests for assistance from the police authorities, the police authorities were directed to give assistance to the Panchayat. If assistance is being granted by the police officer, as requested by the Panchayat authorities, apparently it is in accordance with the directions in the judgment of this Court. Of course, the learned counsel for the petitioner would point out that no autorickshaw owners were made parties to the petition filed by the respondents and in this case they are not aware of the proceedings. We cannot sit in judgment over the correctness of the directions of the learned Single Judge. It is for the petitioners to work out their remedies before the appropriate forum. W.P.C.No.32196 of 2010 5 9. without prejudice to the right of the petitioners to work out their remedies before the appropriate forum, this writ petition is dismissed.

Aneesh vs The Sub Inspector Of Police on 14 December, 2010

Kerala High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.36622 of 2008 Mahabir Prasad, Son of Late Ramdeo Prasad, resident of village- Dumarshan, Police Station Masrakh, District- Saran at Chapra. ... Petitioner. Versus The State Of Bihar .... Opposite Party. ----------- Md. Ibrarul (Sheema Ali Khan ,J.) 2. 15.07.2011. This application has been filed against the order dated 09.01.2004 by which the bail bonds of the petitioner has been cancelled. Considering the order in the year 2004, it is expected that the petitioner must have appeared in the Court below and filed a bail application. This Court finds no illegality in the order impugned and thus this application is dismissed.

Mahabir Prasad vs State Of Bihar on 15 July, 2011

Patna High Court - Orders

Court No. - 51 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 2499 of 2010 Petitioner :- Rajesh Pal Respondent :- State Of U. P.Petitioner Counsel :- V. K. Tiwari Respondent Counsel :- Govt Advocate Hon'ble Shashi Kant GuDta.J. Learned AGA prays for and is granted three weeks time to file counter affidavit. Applicant will have one week time to file rejoinder affidavit. List the matter on 05-3-2010. Order Date :- 2.2.2010 IA

Rajesh Pal vs State Of U. P. on 2 February, 2010

Allahabad High Court

Gujarat High Court Case Information System Print FA/7275/1999 2/ 2 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 7275 of 1999 ========================================================= LEENABEN SARABHAI & 3 - Appellant(s) Versus MAHADEVBHAI JESANGBHAI MORI & 2 - Defendant(s) ========================================================= Appearance : MR AK CLERK for Appellant(s) : 1 - 4. MR MC BHATT for Defendant(s) : 1 - 2. NOTICE SERVED for Defendant(s) : 3, ========================================================= CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 03/08/2011 ORAL ORDER1. On 30.06.2011 this Court passed the following order; "The learned advocate for the appellant/s is directed to take appropriate action qua the unserved respondent/s within a period four weeks from today, failing which the matter will stand dismissed qua the said respondent/s. The matter is adjourned to 03rd August 2011. In the meantime, the Registry is directed to call for R & P of the matter. A copy of present order be placed in each matter." 2. However, no action has been taken till today. Hence, the appeal stands dismissed qua the unserved respondents. The appeal to be listed for final hearing on 05.09.2011. [K. S. JHAVERI, J.] Pravin/*     Top

Author: Ks Jhaveri,

Leenaben vs Mahadevbhai on 3 August, 2011

Gujarat High Court

Court No. - 6 Case :- FIRST APPEAL FROM ORDER No. - 1956 of 2010 Petitioner :- Union Of India Thru' General Manager N.R. New Delhi Respondent :- I.F.F.C.O. Phulpur Unit, Post Ghiyananagar Allahabad 212404 Petitioner Counsel :- Sushil Kumar Srivastava Hon'ble Prakash Krishna,J. Having heard the learned counsel for the appellant, I do not find any merit in the present appeal. It is dismissed summarily. Order Date :- 9.7.2010 IB (Prakash Krishna,J)

Union Of India Thru' General ... vs I.F.F.C.O. Phulpur Unit, Post ... on 9 July, 2010

Allahabad High Court

Central Information Commission 2nd Floor, August Kranti Bhawan, Bhikaji Cama Place, New Delhi - 110 066 Website: www.cic.gov.in Decision No. 4975/IC(A)/2009 F. No.CIC/SG/A/2009/000955 Dated, the 5th January, 2010 Name of the Appellant : Smt. Anju Devi Name of the Public Authority : East Central Railway Decision: 1. The appellant has asked for attendance details of an employee of the respondent, which has been refused by the CPIO u/s 8(1)(j) of the Act.2. In view of the fact that the appellant has not indicated as to what is the public interest in disclosure of personal details of the respondent's employee, this appeal is considered unnecessary and is thus disposed of. Sd/- (Prof. M.M. Ansari) Central Information Commissioner Authenticated true copy: (M.C. Sharma) Deputy Registrar 1 Name & address of Parties: 1. Smt. Anju Devi, Qtr. No. 301/J & K, Railway Colony, Hirapur, Dhanbad - 826 001 (Jharkhand) 2. Shri S.C. Srivastava, Public Information Officer and Divisional Personnel Personal Officer, East Central Railway, Dhanbad - 826 001 (Jharkhand) 2

Smt. Anju Devi vs East Central Railway on 5 January, 2010

Central Information Commission

IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No. 27411 of 2011 Lalit Kumar Sinha Versus The State of Bihar ---------------- 02. 23.08.2011 Call for legible carbon copy of the case diary from the Court of Chief Judicial Magistrate, Jamui in connection with Simultalla P.S. Case No. 11 of 2010. The same must be submitted within three weeks. Put up on receipt of the case diary. (Anjana Prakash, J.) Vikash/-

Lalit Kumar Sinha vs The State Of Bihar on 23 August, 2011

Patna High Court - Orders

Gujarat High Court Case Information System Print CR.MA/7744/2010 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 7744 of 2010 ========================================================= RAJESH BACHUBHAI PARMAR Versus STATE OF GUJARAT ========================================================= Appearance : MS SNEHA A JOSHI for Applicant MR HL JANI ADDL. PUBLIC PROSECUTOR for Respondent ========================================================= CORAM : HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 27/07/2010 ORAL ORDER Mr.H. L. Jani, learned APP for the respondent State has made a statement that the charge-sheet is filed. In view of the statement made by the learned APP, learned advocate for the applicant seeks permission to withdraw this application with a view to move before the lower Court. Permission as prayed for is granted. This application stands disposed of as withdrawn. Rule is discharged. [ Z. K. SAIYED, J. ] (vijay)     Top

Author: Z.K.Saiyed,&Nbsp;

Appearance vs Mr Hl Jani Addl. Public Prosecutor ... on 27 July, 2010

Gujarat High Court

mun uuum UP KAKNATAKA 1'-EEG?-AEA €fQUflT OF K.&RNA1"AKA H16?! CQURT OF KARNATAKA HIGH COURT OF KARNA'F'AKA §-HGH COURT OF KARNATAKA H36!-I £3 'i"§'§ EEGR €§§;?F Q? §§;%R§*2'§"E2%§€m 2%'? mmm 'Ema TEE 2% may Q? _ B§;§+"'-f§E%E€; Tm §+§Q§§'§I.E mg :.3"{.E&'§"§§2E5 §§e.§_"'§i W.Pfi$. 3.13% n .: E" 'Z' , W[SADHI$EISE&, AaE§54*:mm- = REQIEINQAT ;m.gm.; - " % 7%. _V _ m-mm J . . . FEHTIQREE fififlz .4:-unnnmnnulmnnm 1. TC???-'I*?' EA§5:¢§§A?;:.*r:¥I, ?lfi?':=C§{§E:fiA§E'¢!§i':.¥*§5E.BIéZ3'I'E, % kw . EE¥R1'*;SEI§I?Efi gym % V.VV€H1E§"GF§?BZ§ER. 2; $333 fimfiflmfi my as-:am§:.:1%.#;;L'.%mmm;*:'1%*§m:ag VI£«»vE$HWAE32¥_& mm 2% nafimsnwfiwgnm 7 «gm man 3%.» Si*T,a§.TE mt mmmmg EE?REsErI'§:a§ 3? as -Etgrygw. T fiwammm 0? (:2 ngmmpmxm M.SgBE3§'LEm'G., ammzmafi -« me am ..;RE$P$f§fi§:§I% {BY SRI. E$H fifiriflfi a& 823%" E§§E% afifififififi, fi.EV. FQR Rm E; $B§F,£§.€..§iAG£$}*IREE3§ fififi? FGE R»? E .3} the asfi fim VV " wage mt: a "zmmlmr mi' mcaaiam' fiifitwitlm --urn v-«vvm vr nnntvnannn flluI"l: l;.a'~{lJKl ur KAKNATAKA HIGH CQHET GP KARNAYAKA HIGH COURT OF KARNAYAKA HIGH COURT OF KARNATAKA H16?! ' E-fl! rm WRIT PE"I'I'§'i$N FELEE EI1*¥§EE€ AR?£'§¢§~vE{$}'-fifié Am 22? ms 3:33 C$P§$TE§*E.§'§*i®2§ me' fiéifiifi, §Rg¥n§e~%='m Ems'? 'mm Rgsmxmamg 32% P35'? fiflh@E§%T%'?E€i;E%.__f;g'*€'?, ' . Tm PE"'I"'I'I"IflKER mg mma 'ztama s:::ja:'ER.. THE SGHEBTJLE Lam TGGETREE wry}: m*£Eg$~§ __E'R4 li".'3E§ mg " x mm 33% Taima PfiS$E$SIQH""§'£L£». @133 _E:i.-.%££'E3'---.5t3F*; Pfiyzmzfi' ..&3;fi§'§GW?}Z'H Sfiifififibé BE.N}.«;*Ff£'S,-- . THIS wgrr ¥"E'?YI"Ii}ii C{}E.§sB€G ézqima If . I-mama H! B mafia ffifi m:;'3::._'§*§§" s*::<.'>?.:r§*§*: :33 mLLc»wm'G: A_ Pefifiamr us ta direct the far havm aiangwim ifitnraat V2: 2 E" Srixfiufiramnya Eva.-awed ' 'S%.mstar.§f£,§.a€:a Ewan km: agivammi «' 'issiam, tiw magma} €32" tém ffififififififit wéay" héifitinfisxzds that 1:113 Em 319% tém lawful amzm" sf tin: prmwty and izhc mm bsifinfi $9 gag «V mm?! Luulfl OF KWKNATAKA I-¥iG¥»'iA€@.}URT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAXA REG!-f COURT OF KARNATAKA HIGH Mk 4. Tha rmpandaaf, £3 '§.3_rm?mi¢ 32¢ ahesyw {laurt am is W F mg mm;mma*5ma is . safi Chikmangzmim at iewt gglwm " V flm rzawxm cf the pmwrzya rwyendaent ii: is founé iEmt"§f1;§~ firms = L' mm. mid far :& § car gasaaaaainn taken emf. V vA:'f§§1'§¢'z?:1a3rs%sip czf rim acifitzla 'éuity hmsazrld in pay tbs E25 iii§§i}$3'.t {he saw mm fimrafarfe the pemigzgar mm * izéxis gastgtgsm, 4:5". £::':f admittai fag: that as at 'amt: paié fig any mm}: psarwm. "t;:r:_V Hafi; aiaim 'Ea be a ewfimgr arid in _ vie§'----nf ».i::hevL :§;esam3ia:::n §mvi*:§ wan mlmn in tha gm _. it :23 agpreytiaia ta ziimat {$3 iii rmwndent the c.::mpm'.:5a.1'.:..i@n m {Em petfianm. 6, Leai assume} is? fix wfifisnw fiartfzer submits that in tha abafimg :3?' :p$$$fi$53'§§I'1; Ehfi Eanfi has Ewen taken mm? by tha 1*'? rmwxfimztg fiitm have 7%-3&3: 63,, \ur\IIJl'\E VIE mwmmm nnwnyagtslsi w mmnmm man COURT or mmAmxA was ooumr as KAmAmxA HIGH com? or xAmAmm man » P» farmad 3.153% affiaitfid fig tiéza paraam, , V VT ~ _'E1?'§,5 flreflre, aufim§%3'2s§ émt £212 _ éimctezd 1:0 aaquiam am am %y ggagigg esif " in the altarmtive fin pay firm aaiigzgssxzzséaénéniii-..:é§ ciate af surrender e§1wsaessi:z:::g_.a 7. in View afzaag dm::§s'i:§$::«é*é~;p:;::*m5§ 31:: 2&4 m SCW '?17'Eu, '9v§mreir1 fimzri Ema ma that am ami figgz-am am: person af €21 ggmfimrdgma Wégih &w, 8;", " 3:1' : r::s.;=_;3:¢, tha msgmsfigfita 52:3 31:3 absmm 6? ' '~ tr::_ §.§§it2£:3§'§m" {sf étzia pgagmigq af trim E1153 kzavifi Ewan §}hysi::.a1$.r L gr: mpgnaem: aw gm Ema army W " 'T it wazzifi ba imgfimgvét 2% awfifif €221' sssiafirzszx, in gram 3:' §a*§,fimrm* imtaairg Efim ? the V[ "2":*&poz'3.cZfin%s am fiirwtfi Ea Sm 333123;' Qfifiigfififififiiififl an the ' ' mm as an t& éaigs: fif éiisw gséfiéaari. $3 {Q15 rnun umuum Ur im.9:NA'¥'AKA MG!»-A1 CQURT OF KARNATAKA HIGH COURT OF KARNATAKA FHGH COURT OF KARNATAKA HIGH COURT' OF KARNATAXA HIGH 16. Fm: tim afaraaaié rmaw, fix 1% f%§@%1.i%fi§h'fi{ in ' in pay mmpflnmtéwzg m the . tm (late :21" éia--~p$aaas$2'm3 glfizig " till mfijaaticzrx. 'Tim said pefitinrxer subject ta: azzy éés-jsfagziga §é§a£?a?::t1g cf * thm Land m qaeaténzzfi ta mfumzi 91$ aflmuzats. is éeciarmi that aims is not tiw " V Sd/--- Ifidqe

Author: Ravi Malimath

Saralamma vs Town Panchayath on 29 January, 2009

Karnataka High Court

Court No. - 35 Case :- WRIT - C No. - 46548 of 2009 Petitioner :- Malkhan Singh Respondent :- Ministry Of Labour And Employment & Others Petitioner Counsel :- Indra Mani Tripathi Respondent Counsel :- Asgi,SanjeeV Singh Hon'ble Ran Vi°ai Singh,J. Passed over on the illness slip of learned counsel for the petitioner. Order Date :- 29.7.2010 Pratima

Malkhan Singh vs Ministry Of Labour And Employment ... on 29 July, 2010

Allahabad High Court

PETITIONER: THE ASSISTANT COMMERCIAL TAX OFFICER-CUM-ENTERTAINMENTTAX OF Vs. RESPONDENT: SHRI NARASIMHAIAH & ORS. DATE OF JUDGMENT: 02/04/1997 BENCH: K. RAMASWAMY, D.P. WADHWA ACT: HEADNOTE: JUDGMENT: O R D E R These appeals by special leave arise from the common judgment of the Division Bench of the Karnataka High Court, made on September 13,1985 in Writ Appeal Nos.1640-46/85. The admitted position is that legislature of karnataka introduced Section 6-B in the Karnataka Entertainments Tax Act, 1958 by Amendment Act, 1966 (Karnataka Act 14 of 1966) with effect from May 16, 1966 which reads as under: Reassessment of escaped turn-over was sought to be made by operation of Notification No. FD.194 CEX-76 dated 30.11.1976 amending and framing Rule 29-F of the Rules made under the Act prescribing the period of limitation of five years. It reads as under: The respondents contend that the appellants have no power to re-open the assessment and reassess the escaped turnover beyond November 30, 1976. The said contention found favour with the learned single judge, which was affirmed by the Division Bench dismissing the appeal summarily. Thus, these appeals by special leave. A reading of Section 6-B of the Act clearly indicates that where for any reasons, any complimentary ticket or any payment for admission to any entertainment has escaped assessment to tax under Section 3 or Section 3-A, or any cinematograph show has escaped assessment to tax under Section 4 or 4-A, or such ticket, payment or show has been assessable under Section 3 or 3-A or Section 4 or 4-A, as the case may be , the authority has been given power under subsection (1) of Section 6-A, to reassess to the best of its judgment, the rate due on such ticket, payment or show under Section 3 or 3-A or section 4 or 4-A, as the case may be . But it should be done only after service of notice on the proprietor and after making such enquiry as it may consider necessary. Since limitation for the period during which the escaped turnover can be reassessed, had not been earlier prescribed, Rule 29-F was made and had come into effect from November 30,1976. As seen under Rule 29-F, the time within which the power under Section 6B is exercisable has been prescribed, "shall be five years from the close of the period to which the assessment in question relates." In other words, it relates backward to five years from the date the Rule came into force from November 30,1976. If the interpretation given by the High Court is given effect to, the amended Rule 29-F would come into force, namely, November 30, 1976, five years forward. That would not be the intendment of the Rule. As a consequence, the High Court is clearly in error in holding that reassessment of the escaped turnover preceding five years from November 30, 1976 is not correct. The appeals are, therefore, allowed. The authorities are empowered to reassess the escaped turnover for the period, five years preceding November 30, 1976 as relating to the assessment in question. No costs.

The Assistant Commercial Tax ... vs Shri Narasimhaiah & Ors on 2 April, 1997

Supreme Court of India

CENTRAL INFORMATION COMMISSION Club Building (Near Post Office) Old JNU Campus, New Delhi - 110067 Tel: +91-11-26161796 Decision No. CIC/SG/A/2009/002361/002364/002368/002371/002375/002376/5608 Appeal No. CIC/SG/A/2009/002361/002364/002368/002371/002375/002376 Relevant FactsAppellant : Mr. Rajendra Gupta 704, GT Road, Shahdara, Delhi- 110032. Respondent : Mr. C.B.Singh PIO & SE-I Municipal Corporation of Delhi, RTI application filed on : 13/04/2009 PIO replied : 04/05/2009, 21/05/2009 First appeal filed on : 06/07/2009 First Appellate Authority order : 07/08/2009 (Not enclosed) Second Appeal received on : 22/09/2009 Date of Notice of Hearing : 14/10/2009 Hearing Held on : 19/11/2009 emerging from the Appeal: O/o S.E. -I, Keshav Chowk, Near Shamlal College, Shahdara, Delhi. Information Sought (with reference to construction in Gali no 2 which is in front of property no C 61/3, Bhajanpura, property no B-4/60 Yamuna Vihar, property which is in front of 10/606 village Ghondla, property next to C 196 and which is behind dispensary road police station, Bhajanpura; Property next to D-17/22 Gali No 2 Madhuban Mohalla North Ghonda and Property No B- 2/374 Yamuna Vihar) 1. Has MCD passed any map for the property through Shahadara Zone, Building Department or has any type of approval been given for this construction work? If yes then please provide a photocopy of the map. Is this unauthorized construction in the knowledge of Deputy Commissioner, MCD. 2. How much amount has been paid for passing the map? If the amount has been paid by cheque/ demand draft then mention the no. of that cheque/ demand draft and name of the bank. Is the map for residential or for business purpose? 3. If MCD has never given any approval for the construction then what action has been taken by the MCD on this unauthorized construction? 4. Has MCD, Shahadara north zone building department booked this property to demolish? If yes then why it is not demolished till date? 5. Has the unauthorized construction been sealed if there was any problem for demolishing the said unauthorized construction? If no then why? If yes then what is the time limit decided for demolition of the said unauthorized construction? 6. If there is a map which was passed by MCD then is the construction according to that map? If no then what action has been taken by MCD Shahadara North Zone Building department on the said property? 7. If construction work was permitted on the said property then give the name of the engineer who's duty was to submit the report to the building department regarding the said construction either after or during the construction work? Name and mobile no. of the JE? 8. Mention the name and designation and present work place of those AE, EE and SE to whom that JE has submitted his report? 9. Area of the said property? ( In Dimensions) 10. What was the status of the said property before Appellant's complaint or before the said unauthorized construction means number of stories or number of rooms in the building or what was the coverage area? 11. What is the percentage of the covered area permitted on the said property, the total rooms and floors in the building? 12. If there has a map been passed or any permission given then mention that how many stories and how many rooms and how many kitchens and how many bathrooms were permitted? 13. Is construction work being done on the part of said property? 14. How many complaints were lodged against the said construction, mention Complainant's name if possible otherwise only mention what action has been taken on that unauthorized construction after the complaint? 15. Name and mobile no. of the officers of Building Department related to the said property. Reply of PIO. 1. No, information available in the office. 2. The information concerns third party, and it cannot be provided without the consent of the third person. 3. Action on the unauthorized construction is taken as per rule. 4. Same as above. 5. Action on the unauthorized construction is taken as per rule. 6. Same as above. 7. Mr AK Mandal is the junior engineer. 8. Mr Ajay Kumar is Assistant Engineer, ASK Sindhwani is Executive Engineer, KP Singh is Superintending Engineer. 9. The information concerns third party, and it cannot be provided without the consent of the third person. 10. Same as above. 11. Same as above. 12. Same as above. 13. No information available in the office. 14. The official documents can be inspected. 15. The matter concerns the owner of the property. First Appeal: Unsatisfactory information provided by PIO. Order of the FAA (not enclosed but mentioned in the second appeal). The FAA directed the APIO to furnish complete information within 15 days. Ground of the Second Appeal: Non compliance of the orders of FAA. The information provided was unsatisfactory. Relevant Facts emerging during Hearing: The following were present: Appellant : Mr. Rajendra Gupta; Respondent : Mr. B.M.N. Rao, EE (B-I) representing Mr. C.B.Singh PIO & SE-I; Mr. Arun Kumar, Public Information Officer & SE-II; The PIO has given a reply that no plans have been approved and no action n taken. The Appellant states that in the past six months construction of buildings of 2 to 5 stories have been undertaken illegally. The appellant is trying to raise the issue of illegal constructions and MCD officers who appear to be in collusion with builders of illegal buildings claim that there is no plan approval and action has been taken. By the time the matter comes before the Commission which takes about 5 to 6 months the building is nearly completed and later on it is claimed that it is an old building and therefore there are no records available. Collusion of MCD officers with builders in illegal activity makes a citizen feel helpless and angry at the Government. Officers who are paid form public funds to ensure that the laws are implemented appear to be colluding with the law breakers. Frustrating the efforts of citizens who try and get the law enforced. It is apparent that the then Deemed PIO Mr. S.K.Sindhawani, EE (B-I) Shahdara North, Delhi chose to ignore the large scale illegal buildings coming up and gave false information to the appellant. The Commission directs Mr. B.M.N. Rao to inspect the properties and give the correct information to the Appellant before 25 November 2009. Decision: The Appeal is allowed. The Mr. B.M.N. Rao is directed to inspect the properties and give the correct information to the Appellant before 25 November 2009. The issue before the Commission is of supplying the incomplete and incorrect information by the then Deemed PIO Mr. S.K.Sindhawani. From the facts before the Commission it is apparent that the then Deemed PIO Mr. S.K.Sindhawani is guilty of supplying incorrect and incomplete information. It appears that the then deemed PIO's actions attract the penal provisions of Section 20 (1). A showcause notice is being issued to him, and he is directed give his reasons to the Commission to show cause why penalty should not be levied on him. He will present himself before the Commission at the above address on 18 December 2009 at 11.30am alongwith his written submissions showing cause why penalty should not be imposed on him as mandated under Section 20 (1). 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 19 November 2009 (In any correspondence on this decision, mention the complete decision number.) CC: To, Mr. S.K.Sindhawani, EE, DEMS, Ambedkar Stadium, Delhi Gate, Delhi through Mr. B.M.N. Rao, EE (B-I).

Mr. Rajendra Gupta vs Municipal Corporation Of Delhi on 19 November, 2009

Central Information Commission

[Section 23(2)] [Section 23] [Complete Act]

Central Government Act

Gujarat High Court Case Information System Print CR.MA/6390/2011 2/ 2 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 6390 of 2011 ========================================================= FIROZKHAN ABDULRAZAK PATHAN - THRO' ABDULRAZAK H PATHAN - Applicant(s) Versus STATE OF GUJARAT & 1 - Respondent(s) ========================================================= Appearance : MS KRISHNA U MISHRA for Applicant(s) : 1, MR JK SHAH, APP for Respondent(s) : 1, None for Respondent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 12/05/2011 ORAL ORDER RULE. Learned APP Mr.Shah waives service of rule for and on behalf of the State. This is an application for temporary bail in connection with the offence registered vide F.No.NCB/AZU/CR-03/2008 (which is now culminated into N.D.P.S. Sessions Case No.7/2008 pending in the Court of Sessions Judge (Special Judge), camp at Idar, District Sabarkantha. Temporary bail is prayed for on the ground that the wife of the accused-applicant is suffering from sub-acute appendicitis and bulky uterus. She has been advised abdominal hysterectomy plus appendicectomy. It is submitted that necessary arrangements are to be made for the purpose of surgery and, therefore, the presence of the applicant-accused as husband would be necessary. In the facts and circumstances of the case, the applicant-accused is ordered to be released on temporary bail for a period of four days from actual date of his release, under police escort at the cost of the accused-applicant, on his executing a personal bond of Rs.10,000=00. Rule made absolute. Direct service is permitted. (J.B.Pardiwala, J.) /moin     Top

Author: J.B.Pardiwala,&Nbsp;

Firozkhan vs State on 12 May, 2011

Gujarat High Court

Court No. - 40 Case :- APPLICATION U/S 482 No. - 21657 of 2010 Petitioner :- Munesh Kumar Singh And Others Respondent :- State Of U.P. And Another Petitioner Counsel :- Akhilesh Srivastava Respondent Counsel :- Govt Advocate Hon'ble Vinod Prasad,J. Heard the learned counsel for the applicants and the learned AGA . The applicants, through the present application under Section 482 Cr.P.C. have invoked the inherent jurisdiction of this Court with the prayer that the proceedings of complaint case no. 1072 of 2006, Babu Lal Vs. Munesh Kumar and others, under Sections 323, 452, 504, 506 I.P.C. and 3 (1) 10 SC/ST Act, P.S. Harduaganj, District Aligarh pending in the court of judicial Magistrate, Court No. 2, Aligarh be quashed. It is contended by the learned counsel for the applicant that the civil dispute has been dragged into criminal offence and it is a case of no injury. The applicants are directed to serve respondent No. 2 through RPAD within a week from today. The respondent No. 2 as well as the learned AGA are directed to file counter affidavit within three weeks. List this case in the week commencing 16th August, 2010 before the appropriate Court. Till the next date of listing, further proceedings of the aforesaid complaint case no. 1072 of 2006, Babu Lal Vs. Munesh Kumar and others, under Sections 323, 452, 504, 506 I.P.C. and 3 (1) 10 SC/ST Act, P.S. Harduaganj, District Aligarh pending in the court of judicial Magistrate, Court No. 2, Aligarh shall remain stayed against the applicants. Order Date :- 28.6.2010 vinay

Munesh Kumar Singh And Others vs State Of U.P. And Another on 28 June, 2010

Allahabad High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.32040 of 2010 MUNI PRASAD S/O LATE PARAS SAH Versus STATE OF BIHAR ----------- Fahad. ( Anjana Prakash, J. ) 2. 24.09.2010 Heard learned Counsel for the petitioner and the State. The petitioner seeks bail in a case instituted for the offence under Sections 47 (a) Excise Act. Considering that it is a case of misuse of privilege of bail for a period of 6 years and now the petitioner undertakes to be more vigilant during trial, let the petitioner above named, be released on bail on furnishing bail bond of Rs. 5,000/-(Five thousand) with two sureties of the like amount each or any other surety to be fixed by the court concerned to the satisfaction of learned court of Special Judge, Buxar in connection with NDPS Case No. 05/2010 arising out of Case No. 12 (0) 91, subject to the conditions, (i) That one of the bailor will be a close relative of the petitioner who will give an affidavit giving genealogy as to how he is related with the petitioner and the other bailor shall be the brother of the petitioner. The bailor will undertake to furnish information to 2 the Court about any change in address of the petitioner. (ii) That the affidavit shall clearly state that the petitioner is not an accused in any other case and if he is he shall not be released on bail, (iii) That the bailor shall also state on affidavit that he will inform the court concerned if the petitioner is implicated in any other case of similar nature after his release in the present case and thereafter the court below will be at liberty to initiate the proceeding for cancellation of bail on ground of misuse, (iv) That the petitioner will be well represented on each date if he fails to do so on two consecutive dates, his bail will be liable to be cancelled.

Muni Prasad vs State Of Bihar on 24 September, 2010

Patna High Court - Orders

Gujarat High Court Case Information System Print CA/4678/1999 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL APPLICATION No. 4678 of 1999 In FIRST APPEAL No. 2821 of 1999 ========================================================= KAVITA WD/O SRICHAND KESWANI & 4 - Petitioner(s) Versus SHAFI MOHMAD NOORMOHMAD & 2 - Respondent(s) ========================================================= Appearance : (MR DH WAGHELA) for Petitioner(s) : 1 - 5. None for Respondent(s) : 1 - 3. ========================================================= CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL and HONOURABLE MR.JUSTICE H.B.ANTANI Date : 27/09/2010 ORAL ORDER(Per : HONOURABLE MR.JUSTICE JAYANT PATEL) In view of the order passed in the main appeal, Civil Application would not survive and shall stand disposed of accordingly. (Jayant Patel, J.) (H. B. Antani, J.) vinod     Top

Author: Jayant Patel,&Nbsp;Honourable H.B.Antani,&Nbsp;

Kavita vs Shafi on 27 September, 2010

Gujarat High Court

Gujarat High Court Case Information System Print CR.MA/12404/2008 2/ 2 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 12404 of 2008 ========================================= STATE OF GUJARAT - Applicant(s) Versus DINESHBHAI BHIKHABHAI PATEL - Respondent(s) ========================================= Appearance : MR MR MENGDEY,ADDL.PUBLIC PROSECUTOR for Applicant(s) : 1, None for Respondent(s) : 1, ========================================= CORAM : HONOURABLE MR.JUSTICE MD SHAH Date : 15/10/2008 ORAL ORDER The present petition has been filed by the State of Gujarat under Section 439(2) of the Criminal Procedure Code for cancellation of the bail granted to the respondent ? original accused by the trial Court by order dated 31.07.2008 in Criminal Misc. Application No.1142 of 2008. Heard Mr.Mengdey, learned APP, for the applicant ? State. It is submitted by learned APP Mr.Mengdey that the trial is about to commence. The trial Court has observed in its order that in this case, all the witnesses are Police Officers and so the question does not arise for tampering with the evidence. In view of above, there is no substance in the submission that when the trial begins, there are ample chances that the respondent will temper with the evidence and give threat to the prosecution witnesses. Hence, the application is rejected. (M.D.Shah, J.) sudhir     Top

Author: Md Shah,&Nbsp;

State vs Dineshbhai on 15 October, 2008

Gujarat High Court

Title: Need to declare Minimum Support Price for agricultural produce in Kerala. SHRI T. GOVINDAN (KASARGOD): Sir, I would like to draw the attention of the Government towards the need to announce Minimum Support Price for agricultural produce. Even though the Government of India announces Minimum Support Price for 24 crops, Kerala gets the benefit of Minimum Support Price only for copra. The price of various agricultural commodities in Kerala are falling from the year 2000 onwards. This is mainly due to globalization with liberal imports of agricultural commodity consequent to the W.T.O. Agreement. Hence, the resource poor, risk prone small and marginal farmers of Kerala cultivating arecanut, pepper, coffee etc. have to be protected through the Minimum Support Price Programme. In the circumstances, I request the Union Government to announce Minimum Support Price for the above agricultural commodities urgently to protect the interest of the farmers.

Need To Declare Minimum Support Price For Agricultural Produce In ... on 18 December, 2000

Lok Sabha Debates

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 22/08/2007 CORAM: THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR S.A.(MD).No.190 of 1997 S.S.Rajalinga Raja ... Appellant Vs. A.R.M.S.Somasundara Mudaliar ... Respondent Prayer Second Appeal filed under Section 100 of the Code of Civil Procedure against the judgment and decree dated 05.02.1996 made in A.S.No.191 of 1992 on the file of the Sub Court, Ambasamudram, confirming the judgment and decree dated 15.02.1990 made in O.S.No.355 of 1986 on the file of the Principal District Munsif Court, Ambasamudram. !For Appellant ... Mr.K.Chandrasekaran ^For Respondent ... Mr.P.Senthur Pandian :JUDGMENT The defendant in the Original suit is the appellant in the second appeal. He had purchased 1.50 acres of wet land from the respondent/plaintiff on credit for a sale consideration of Rs.36,000/- in and by a Sale Deed dated 1.6.1981. As the entire sale consideration remained unpaid, on the date of sale itself, the appellant/defendant entered into an agreement with the respondent/plaintiff for the payment of the said amount with interest at the rate of 18% p.a. Some payments were made towards the discharge of the above said debt for which entries were made in the Passbook maintained by the respondent/plaintiff marked as Ex.A-1 in the suit. Since the debt was not fully discharged before 17.08.1982, a supplementary agreement came to be entered into between the parties for payment of interest at the rate of 24% p.a. from the said date. Subsequently several payments were made which are also found noted in the above said passbook. At last, claiming a sum of Rs.5,015.25 to be due as on the date of filing of the suit, the respondent/plaintiff instituted O.S.No.355 of 1986 on the file of the District Munsif Court, Ambasamudhram, praying for a decree for recovery of the said amount with subsequent interest and costs. 2. The said suit was resisted by the appellant herein/defendant claiming benefit under Usurious Loans Act, 1918 and also contending that the respondent/plaintiff was not entitled to collect compound interest and that the appellant/defendant had paid more than the amount payable even as per the contract. The appellant/defendant also made a counter claim for the recovery of a sum of Rs.7,273.82 as the amount paid by him over and above than the amount that could have been legally recovered by the respondent/defendant and interest for the excess payment. Court fee was also paid for the counter claim. 3. The learned District Munsif after framing necessary issues conducted trial, in which one witness was examined and eight documents were marked as Exs.A-1 to A-8 on the side of the plaintiff and one witness was examined and eight documents were marked as Exs.B-1 to B-8 on the side of the defendant. At the conclusion of trial, the learned trial Judge decreed the suit as prayed for and dismissed the counter claim made by the defendant by its judgment dated 15.02.1990. 4. As against the judgement and decree of the trial court, the appellant herein/defendant filed an appeal on the file of the Subordinate Judge, Ambasamudhram in A.S.No.191/1992. The learned Subordinate Judge, after hearing both sides, confirmed the judgement and decree passed by the trial Court and dismissed the appeal with costs. Hence the appellant herein/defendant is before this Court challenging the judgement of the lower appellate Court by which the judgement and decree of the trial Court stand confirmed. 5. This Court heard the arguments advanced by Mr.K.Chandrasekaran, learned counsel for the appellant and by Mr.P.Senthur Pandian, learned counsel for the respondent and paid its consideration to the same. The relevant records were also perused. 6. The appellant whose claim for scaling down in respect of the suit debt and counter claim for the refund of the amount paid, according to him, in excess of what could have been legally recovered by the respondent, were rejected by the Courts below has brought forth the second appeal. At the time of admission, two substantial questions of law were framed. They are: (1) Whether the Court below is right in coming to the conclusion that the debtor viz., the appellant, should be an agriculturist as defined under Tamil Nadu Agriculturists Relief Act to claim the benefits of Usurious Loans Act as amended by Tamil Nadu Act, 8/1937, especially when there is no such clarification prescribed under the said Act? 2) Whether the lower Court is right in refusing to reopen the transaction between the parties under Section 3 of Usurious Loans Act, 1918 applying the legal presumptions that arose under Tamil Nadu Amending Act 8/1937? 7. Admittedly, the appellant/defendant owed a sum of Rs.36,000/- being the unpaid price of the agricultural land purchased by him on 01.06.1981 from the respondent/plaintiff. On the same date they entered into an agreement for the payment of the said amount with an interest at 18% p.a. The agreement and the entries regarding payments made towards the discharge of the debt are found in the pass-book marked as Ex.A.1. As the debt was not fully discharged, a new agreement came to be entered into between the parties on 17.08.1982 for payment of interest at the rate of 24% p.a., thereafter. The above said agreements between the parties are not denied by either of them. On the other hand, it is the contention of the appellant/defendant that the contract between the parties for payment of interest at 24% p.a., is affected by the provisions of Usurious Loans Act, 1918; that the transaction should be reopened under Section 3(1) of the said Act and that the appellant should be relieved of the liability to pay interest in excess of the reasonable interest to be fixed by the Court. The further case of the appellant is that the payments already made by him exceeded the amount that could have been legally recovered by the respondent and hence the excess amount paid by him should be directed to be refunded with interest. 8. The interest is challenged as usurious on the following grounds: (i) As per Section 3(1) of the Usurious Loans Act, 1918, interest shall be presumed to be excessive because the rate of interest for unsecured debt has exceeded 18% p.a.; (ii) As the appellant is an agriculturist, levy of compound interest itself gives rise to a presumption that the transaction is substantially unfair. 9. The appellant's contention is sought to be resisted by the respondent on the ground that the presumption to be drawn under Section 3(2) is rebuttable; that the respondent could prove all attending facts and circumstances to justify the levy of interest initially at 18% p.a. and subsequently at 24% p.a., and that the presumption in respect of agriculturists will be inapplicable in this case because, the appellant/defendant is proved to have many business other than agriculture and is deriving more income from business. In the light of the above said contentions made by either of the parties to the suit, the question: "Whether the appellant/defendant was an agriculturist and whether he could be held entitled to the benefits of the provision of Usurious Loans Act 1918?" - was framed as an issue in the suit. The learned trial Judge negatived the contention of the respondent/plaintiff that the debtor should be an agriculturist to avail the benefit of the provisions of Usurious Loans Act, 1918. However, the trial Court, on merit, held that the transaction between the appellant/defendant and respondent/plaintiff could not be reopened under Section 3 of the Usurious Loans Act, 1918 as the same, in the opinion of the trial Court, was not substantially unfair in the light of the special circumstances, even though the interest for an unsecured debt exceeded 18% per annum. But in the appeal, the learned lower appellate Judge disagreed with the said view of the trial Court and held that the debtor should be an agriculturist to avail the benefits of the provisions of Usurious Loans Act, 1918. For coming to the above said conclusion, the learned lower appellate Judge has relied on the judgment of a Division Bench of Madras High Court in "Venkataramanan and Co. Sri vs. Indian Overseas Bank" reported in 1989(2) LW 6 and cited as a precedent on behalf of the respondent/plaintiff. 10. The learned counsel for the appellant/defendant, pointing out the above said view expressed by the learned lower appellate Judge, contended that the said view was erroneous and unsustainable in law. According to the submissions made by the learned counsel for the appellant/defendant, the proviso introduced by Tamil Nadu Act VIII of 1937 amending Section 3 of the Usurious Loans Act 1918, simply makes it obligatory for the Court to presume the interest to be excessive, if compound interest is levied in case the debtor happens to be an agriculturist and the introduction of the said proviso by the amending Act could not be interpreted to mean exclusion of all other debtors from the purview of Usurious Loans Act, 1918. As rightly pointed out by the learned counsel for the appellant, the lower appellate Judge misinterpreted the judgment of the Division Bench of Madras High Court, cited supra, and thus came to an erroneous conclusion that a debtor should be an agriculturist to avail the benefits of the provisions of Usurious Loans Act, 1918. The Act is not restricted in its application to agriculturists alone. Any debtor can invoke the provision of the Act, prove the transaction to be substantially unfair and seek reopening of the transaction. The amendment introduced to Usurious Loans Act, 1918 by Tamil Nadu Act 8 of 1937 simply makes it obligatory for the Courts to presume the transaction to be substantially unfair if compound interest is levied against a debtor who is an agriculturist. 11. It is pertinent to note that it was contended before the Division Bench in "Venkataramanan and Co. Sri vs. Indian Overseas Bank" referred supra, that the debtor therein was an agriculturist and levy of compound interest by the Bank would give rise to the presumption that the transaction was substantially unfair. On facts, the Division Bench came to the conclusion that the debtor therein was not an agriculturist as defined in Tamil Nadu Agriculturists Relief Act, 1938 and hence there could be no presumption of substantial unfairness of the transaction. Of course the term "agriculturist" has not been defined in Usurious Loans Act. Hence the Division Bench applied the definition of the said term found in Tamil Nadu Agriculturist Relief Act, 1938. Only for the limited purpose of finding out whether a presumption as per the proviso/explanation could be drawn, the Division Bench has observed that the debtor should be an agriculturist. The said observation cannot be interpreted to give wider meaning to the same, say, as if it was opined that Usurious Loans Act itself was intended to be applied to the agriculturists exclusively. The view expressed by the learned lower appellate Judge that the provisions of Usurious Loans Act, 1918 were not applicable to the appellant/defendant as he was not an agriculturist as defined in Tamil Nadu Agriculturists Relief Act, 1938 (Act IV of 1938), according to the opinion of this Court, is not sound. The said view of the lower appellate Judge does not reflect correct proposition of law in this regard. 12. For all the reasons stated above, this Court hereby holds that a debtor, for invoking the provisions of Usurious Loans Act, 1918 as amended by Tamil Nadu Act 8 of 1937 need not be an agriculturist and hence the first substantial question of law framed at the time of admission of the second appeal is accordingly answered in favour of the appellant. 13. Admittedly the appellant purchased an extent of 1.50 acres of wet land from the respondent on 01.06.1981 for Rs.36,000/-. No amount was paid either before or at the time of execution of the sale deed towards sale consideration. Instead, the entire sale consideration was agreed to be paid subsequently with an interest at the rate of 18% per annum. Though fragmental payments were made upto 17.08.1982, the debt was not fully discharged by then and hence the appellant/defendant and the respondent/plaintiff entered into a further agreement for repayment of the outstanding portion of the above said debt along with an interest at the rate of 24% for the subsequent period from 17.08.1982. On seven different dates a total sum of Rs.62,000/- was paid by the appellant/defendant towards interest and principal. The details of payments are as under: Date of Payment Amount (Rs.) 10/12/1981 2000 23.03.1982 5000 8/11/1982 5000 30.06.1984 36000 28.01.1985 3000 29.05.1985 1000 13.06.1985 10000 Total amount paid 62000 The payment of the above said amount is not disputed. In spite of the payment of the above said amount, the respondent/plaintiff, claiming that a sum of Rs.5,015.25 was due as on the date of plaint, filed the suit for the recovery of the said amount together with future interest and cost. The appellant/defendant resisted the suit making the following contentions: (i) The appellant/defendant, being an agriculturist, levy of compound interest by the respondent/plaintiff is per se usurious as per explanation 1 to Section 3(1) of the Usurious Loans Act, 1918 as amended by Tamil Nadu Act 8 of 1937; (ii) Even assuming that the appellant/defendant is not an agriculturist, the provisions of Usurious Loans Act, 1918 will be applicable to him, the interest charged at the rate of 24%, that too cumulative interest, should be taken as a ground for holding the transaction substantially unfair and hence he is entitled to the benefit of the provisions of the Act; (iii) Even assuming that the appellant/defendant is not entitled to the scaling down of the interest as claimed by him, the levy of compound interest by the respondent/plaintiff is against the agreed terms of the transaction; and (iv) The suit should be dismissed and his counter claim should be allowed since, according to the appellant/defendant he has paid more amount than what could have been legally recovered by the respondent from him. 14. While dealing with the first substantial question of law, this Court has held that a debtor need not be an agriculturist for availing the benefits of the provisions of Usurious Loans Act, 1918 and that for the purpose of drawing a presumption under the explanation to Section 3(2) alone, the debtor should be proved to be an agriculturist. Admittedly, the term "agriculturist" is not defined in Usurious Loans Act, 1918. The Division Bench of Madras High Court in Venkataramanan and Co. Sri's case cited supra has clearly observed that the definition of agriculturist found in Tamil Nadu Act 4/1938 should be adopted. The learned counsel for the appellant has not disputed the applicability of the said judgment to the case on hand in this regard. Therefore, it must be ascertained whether the appellant comes within the definition of agriculturist, in the light of the above said decision, so that a presumption regarding unreasonableness of the levy of interest can be drawn. Admittedly the appellant is an income tax assessee for several years. In fact income tax assessment orders for the assessment years 1977-1978 to 1981-1982 have been produced and marked as Exs.B-1 to B-4. Order of assessment of agricultural income tax for the assessment years 1981-1982, 1982-1983, 1983-1984 and 1989-1990 have been produced and marked as Exs.B-5 to B-8. D.W.1 has also admitted that the appellant was having an annual income of more than Rs.2,00,000/- from agriculture alone. The appellant also owns a market in Ambasamudram having 200 stalls. Besides, he owns a permanent cinema theatre and buildings leased out to State Bank of India and Post office. He is also a timber merchant and has got a rice mill coupe contract from 1955. As per the admission made by D.W.1, the appellant owns properties worth more than rupees sixty lakhs. Therefore, the finding of the lower appellate Court that the appellant was not an agriculturist as defined under the provisions of Tamil Nadu Act 4 of 1938, which is based on valid materials cannot be interfered with. As such, the question of drawing a presumption by virtue of the explanation appended to Section 3(2) of Usurious Loans Act, 1918 does not arise. 15. Even though a presumption under the explanation to Section 3(2) cannot be drawn in favour of the appellant, as he is not an agriculturist as defined in Tamil Nadu Act 4 of 1938, the transaction between the appellant and respondent can be subjected to a test to find out whether the same is substantially unfair capable of being reopened under Section 3(1) of Usurious Loans Act, 1918. The learned counsel for the appellant argued that the levy of interest at more than 18%, that too levy of compound interest, per se amounted to substantial unfairness of the transaction. The rate of interest or the fact that compound interest was agreed to be paid alone is not enough to stamp the transaction unfair. The risk factor and all the attending circumstances also should be taken into consideration. In this case, the appellant purchased a wet land from the respondent without paying any amount in cash towards consideration. Instead he promised to pay the same with interest at the rate of 18%. Subsequently since the debt was not discharged, he made a further promise to pay the same with 24% interest from 17.08.1982. Admittedly, in the land purchased by the appellant from the respondent crops can be raised twice a year. On the date of sale itself, the appellant got possession and thereafter he was deriving substantial income from the said land. Therefore, as rightly pointed out by the counsel for the respondent, the said aspect coupled with the fact that the appellant is a businessman should be taken as special circumstances justifying the transaction in which he has agreed to pay interest at more than 18% p.a. Hence the agreement between the parties for payment of interest (either simple or compound) at 24% p.a. cannot be termed substantially unfair. 16. On the other hand, the learned counsel for the appellant contended that what was agreed to between the parties was for payment of simple interest and not compound interest and that as against the agreed terms of the contract, the respondent was appropriating the payments made by the appellant towards compound interest. It is quite surprising to hear the arguments advanced by the learned counsel for the respondent that only simple interest and no compound interest was collected from the appellant as per the accounts submitted by the respondent. In fact, the right of the respondent to collect compound interest was put in issue in the suit as well as the first appeal before the Courts below and the said Courts have come to the conclusion that the appellant agreed for payment of compound interest. Despite the said fact, the learned counsel for the respondent has ventured to make such a submission in his argument before this Court. The said submission made by the learned counsel for the respondent can even be taken as an admission made on behalf of the respondent across the bar. It is true that questions of fact decided by the Courts below normally should not be disturbed by the High Court in second appeal. At the same time, when the decision of the lower Courts on the question of fact is based on misinterpretation of a document, the same will assume the character of a substantial question of law capable of being set at right in the second appeal. Reference can be made in support of the said proposition to the judgements of the Honourable Apex Court in Rev.Fr. M.S.Poulose .vs. Varghese reported in 1995 Supp (2)SCC 294 and in P.Chandrasekharan .vs. S.Kakakarajan repoted in (2007) 5 SCC 669. So also, when such a finding is perverse, the same can be interfered with in the second appeal. To say a finding perverse, it must be either based on no legally admissible evidence or that on the available evidence, no reasonable person would have arrived at such a conclusion. In this case, the contract for payment of interest is found in Exs.A-1 and A-3. It will be better to extract the relevant clause in the vernacular language itself to ascertain the intention of the parties. In Ex.A-1, the following clause is found:- "khjk; xd;Wf;F U:gha; E}w;Wf;F tl;o 1-50 (xd;W igrh Ik;gJ) tPjk; tl;o Tl;o Toa tl;oa[k; KjYk; jq;fSf;fhtJ jq;fs; Mh;lh; bgw;wtUf;fhtJ ntz;Lk; nghJ buhf;fk; je;J". The recital found in Ex.A-3 is as follows:- "U:gha; E}w;Wf;F tl;o U:.2/- ,uz;L tPjk; tl;o Tl;o Toa tl;loa[k; KjYk; nrh;j;J jq;fSf;fhtJ my;yJ jq;fs; Mh;lh; bgw;wth;f;fhtJ ntz;Lk;nghJ buhf;fk; je;J". The appropriate interpretation to be given to the above said clause shall be that the appellant had promised to repay the principal along with interest calculated at a particular rate. There is no indication in the said clause that compound interest should be paid or that the interest shall be compounded at specified intervals. Stipulation of the period of interval at which interest is to be compounded with the principal is the sine qua non of the agreement for payment of compound interest. In this case, such a stipulation is conspicuously absent. 17. Under these circumstances, this Court finds substance in the argument advanced by the learned counsel for the appellant to the effect that the Courts below misinterpreted Exs.A-1 and A-3 and thus came to the conclusion; that the agreement was for payment of compound interest and that the said finding of the Courts below is perverse, as no reasonable person would have arrived at such a conclusion in the absence of stipulation of the period of interval at which the interest is to be compounded with the principal. The said argument has got to be countenanced. 18. For all the reasons stated above, this Court comes to the conclusion that the finding of the Courts below to the effect that the contract between the appellant and the respondent was for payment of compound interest is infirm, discrepant, perverse and hence liable to be interfered with and reversed by this Court in this second appeal. 19. In view of the conclusion arrived at supra that the transaction between the parties in which the appellant had agreed to pay an interest at 18% upto a particular date and thereafter at 24% per annum, was not substantially unfair and that the contract was for payment of simple interest and not for compound interest, the statement of accounts furnished by the appellant/defendant as annexure-I to his written statement and the counter claim for the recovery of Rs.6,138.25 as excess payment with interest could not be sustained as interest. At the same time, the alternative statement of account furnished by the appellant/defendant as annexure-II to written statement has got to be accepted and sustained, as the calculation of simple interest therein is in accordance with the contract between the parties for the payment of interest. As per the alternative statement of account shown as annexure-II to the written statement, a sum of Rs.937.25 was paid in excess of what could have been legally recovered from him by the respondent. The last payment was made on 13.06.1985. From the statement of accounts furnished by the respondent/plaintiff, it is found that compound interest was calculated which is against the agreed term of the contract. 20. It is quite clear from the above said discussion that the appellant has paid and the respondent has received a sum of Rs.937.25 over and above what was legally due from the appellant/defendant. Hence the respondent/plaintiff should be non-suited for the relief of recovery of the amount claimed in the plaint. On the other hand, the counter claim made by the appellant/defendant as per the statement of accounts found in annexure-II of the written statement has got to be sustained and the appellant is to be held entitled to a decree for the recovery of the said amount. From the date of last payment, that is 13.06.1985, till the date of filing of the suit, the appellant/defendant has claimed interest at 24% (the contractual rate of interest at which interest was collected from him) which is not only reasonable but also legally sustainable. So far as the subsequent interest is concerned, this Court feels that it shall be only 6% per annum. 21. For all the reasons stated above, the second appeal succeeds. Accordingly, the second appeal is allowed and the judgments and decrees passed by the lower Courts are set aside and the original suit is dismissed. The counter claim made by the appellant/defendant is partly allowed and a decree is granted in favour of the appellant/defendant, directing the respondent/plaintiff to pay a sum of Rs.1168.38 along with the future interest on the principal sum of Rs.937.25 at the rate of 6% per annum from the date of suit till realisation. Taking into account the peculiar facts and circumstances of the case, the parties are directed to bear their respective costs. SML To 1.The Sub Court, Ambasamudram. 2.The Principal District Munsif Court, Ambasamudram.

S.S.Rajalinga Raja vs A.R.M.S.Somasundara Mudaliar on 22 August, 2007

Madras High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 36286 of 2009(E) 1. ABDUL SALEEM.T.P,S/O.MUHAMMED, ... Petitioner Vs 1. STATE OF KERALA,REPRESENTEDBY THE ... Respondent 2. ADDITIONAL DIRECTOR GENERAL OF POLICE, 3. SUPERINTENDENT OF POLICE,(RURAL), 4. SUB INSPECTOR OF POLICE,KODUVALLY, 5. M/S.MAHINDRA & MAHINDRA FINANCIAL For Petitioner :SRI.G.HARIHARAN For Respondent :SRI.RAJESH NAMBIAR The Hon'ble MR. Justice K.M.JOSEPH The Hon'ble MR. Justice M.L.JOSEPH FRANCIS Dated :05/02/2010 O R D E R K. M. JOSEPH & M.L. JOSEPH FRANCIS, JJ. -------------------------------------------------- W.P(C). NO. 36286 OF 2009 E --------------------------------------------------- Dated this the 5th February, 2010 JUDGMENT K.M. Joseph, J. The prayers in the Writ Petition are as follows: "(i) Issue a writ of mandamus or any other appropriate writ commanding the 2nd respondent or the 3rd respondent to consider and take action on Exts. P2 and P3 complaint filed by the petitioner after affording him with an opportunity of being heard. (ii) Issue a writ of mandamus or any other appropriate writ commanding the 1st respondent to provide effective guidelines to the Police Authorities in the State against forcible seizure of the motor vehicles and other secured assets on behalf of the Schedule Banks and non banking finance institutions." 2. After having heard the learned counsel for the parties, we dispose of the Writ Petition by directing the third respondent  WPC.NO.36286/09E 2 to consider and take a decision on Ext.P3 in accordance with law, within a period of two weeks from the date of production of a copy of this Judgment. Till a decision is taken by the third respondent, the fifth respondent shall not in any way transfer the vehicle bearing registration No.KL-57A-6847. Sd/= K.M. JOSEPH, JUDGE Sd/= M.L. JOSEPH FRANCIS, JUDGE kbk. // True Copy // PS to Judge 

Abdul Saleem.T.P vs State Of Kerala on 5 February, 2010

Kerala High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA Cr. Misc. No.26976 of 2011 Chandan Paswan son of Suresh Paswan Versus The State Of Bihar ----------- JA/- (Anjana Prakash,J.) 2/ 18.08.2011 Heard learned counsel for the petitioner and the State. The petitioner seeks bail in a case instituted for the offence under sections 304-B, 201/34 of the Indian Penal Code. It has been submitted that the petitioner's father and other co-accused, if any, are ready to surrender before the court below and accept the evidence that has been led on behalf of the prosecution. In view of such, let the petitioner, above named, be released on provisional bail on furnishing bail bond of Rs.5,000/- (five thousand) with two sureties of the like amount each or any other surety to be fixed by the court below to the satisfaction of the 2nd Additional Sessions Judge, Bhojpur, Ara, in connection with Sessions Trial No.119 of 2010, subject to the condition (i) That one of the bailors will be a close relative of the petitioner, who will give an affidavit giving genealogy as to how he is related with the petitioner. The bailors will undertake to furnish information to the court about any change in the address of the petitioner. Put up after six weeks to enable the counsel for the petitioner to file supplementary affidavit with regard to surrender of the petitioner's father and other co-accused, if any.

Chandan Paswan vs The State Of Bihar on 18 August, 2011

Patna High Court - Orders

JUDGMENT S.S. Vyas, J. 1. This revision reveals the deplorable manner, in which the trial in a warrant case, was conducted by the judicial Magistrate and the jail appeal was disposed of has time in a mechanical and routine way by the learned Session Judge. 2. Accused Sbanker was convicted under Sections 454 and 380/75, IPC and sentenced to two years rigorous imprisonment with a fine of Rs. 2,000/- in default of payment of fine to further undergo one year's like imprisonment under the first court and three years' rigorous imprisonment with a fine of Rs. 5,000/- in default of payment of fine to further undergo one year's like imprisonment under the second count by the learned Munsif and Judicial Magistrate, Begun vide his judgment dated November 22, 1982. He filed a Jail appeal challenging his conviction, but the same was dimissed by the learned Sessions Judge, Pratabgarh on January 17, 1983. 3. It would be proper to briefly read all the facts and circumstances giving rise to this revision petition. The police submitted a cballan against the accused on November 20, 1982 in the court of learned Munsif and Judicial Magistrate, Begun for the offences under Sections 454 and 380/75, IPC. The accused submitted an application on that very day before the Magistrate that he admitted the prosecution case and his case be disposed of with out delay. The learned Magistrate, there upon, convicted him under Sections 454 and 380, IPC, on the same day (20-11-1982). It would be profitably to reproduce the order of the learned Magistrate: 20&11&82 , ih ih us ;g pkyku f[kykQ eqyfte 'kadj twes 454&380@75 vkbZ ih lh es izLrqr fd;k eqdnek ntZ jftLVj es A eqyfte 'kadj tSy ls gkftj vk;k pkyku dh udys nh xbZ vfHk;qDr us tqeZ Lohdkj djus dh nj[okLr izLrqr dh A ftl ij vfHk;qDr dks vijk/k /kkjk 45&380 vkbZ ih lh dk nks"kh ekuk tkrk gS Altk ds ftUrq ij vfHk;qDr o , ih ih dhs lquk x;k A , ih ih us tkfgj fd;k fd vfHk;qDr iwoZ es ltk ;kQrk gS AjsdM+ es ns[kk x;k vr okLrs lquus tqeZ /kkjk 75 vkbZ ih lh fnukad 22&11&82 dks is'k dh A 4. On 22.11.1982, the learned Magistrate framed a charge against the accused for purpose of Section 75, I.P.C. in the folio wing manner: ;g fd vkius rkjh[k 2&11&82 dks lqcg 11 cts ds yxHkx pksjh dh vkSj muds }kjk vkius ,slk vijk/k fd;k tks Hkkjrh; n.M+ lafgrk dh /kkjk 454&380 Hkk n l- ds v/khu n.M+uh; gS vkSj vki 'kadj firk ojnkth Mkaxh ij ;g Hkh vkjksi gS fd vki mDr vijk/k djus ls iwoZ eq-u- 49@71 o 195@76 vUrZxr /kkjk 475] 380 Hkk n la es eqfUlQ ,oa U;kf;d eftLVªsV fuEckgsM+k /kkjk Hkkjrh; n.M+ lafgrk ds v/;k; 17 ds v/khu rhu o"kZ dh vof/k ds fy, dkjkokl ds n.Muh; vijk/k ds fy, vFkkZr jkf= xqIr Hksnu ds ,oe~ pksjh ds vijk/k ds fy, nks"kf;r fd;s x;s tks nks"k fl) vc rd iw.kZr;k izLrqr vkSj izekf.kr vkSj vki Hkkjrh; n.M+ lafgrk dh /kkjk 75 ds v/khu ifjofrZRk n.M+ us n.M+uh; gS A vkSj es blds }kjk funsZ'k nsrk gwW Afdss vkids fo:) vufo{kk dh tkos A iz'u ua- 1%&---- iz'u ua- 2%& D;k vki vkjksi Lohdkj djrs gS ;k vufo{kk pkgrs gS A mRrj %& gkW eq>s fuEckgsM+k dksVZ es pksjh djus dh fy, ltk gqbZ Fkh A 5. The accused was, thereafter, convicted and sentenced as mentioned above. The accuse filed a jail appeal before the learned Sessions Judge Prasabgarh. He contended before him that he did not plead guilty before the Magistrate. But his contention was repelled and the appeal was dismissed. Hence this revision. 6. It the fore-front of his arguments, the first point taken by the learned Amicus Curiae is that the whole trial stands vitiated for the simple reason that the learned Magistrate did not follow the procedural mandate enshrined in Sections 240 and 241, Cr.P.C. It was argued that neither charges under Sections 454 and 380, IPC were framed nor the plea of the accused was recorded The learned Magistrate simply acted on the admission of the accused made by him at the time when the challan was filed. This has resulted in a miscarriage of justice. There is considerable force in the contention. 7. A perusal of the case file and the order dated November 20, 1982 reproduced above, clearly shows that no charges under Sections 454 and 380, IPC were framed against the accused and yet, he was convicted there under. 8. Section 240 of the Code of Criminal Procedure lays down in explicit terms that when an accused has not been discharged under Section 239, CrPC the Magistrate, upon consideration of the material before him, shall frame in writing a charge against the accused. When a charge has been framed under Section 240, Cr.P.C. the next duty cast en the Magistrate in Sub-section (2) is that- ... ... ... ... (2) The charge shall then be read and explained to the accused, and he shall be asked whether he pleads guilty of the offence charged or claims to be tried. 9. When the charge has been read over and explained to the accused, his plea in respect of the charges is to be recorded. If the accused pleads guilty, such a plea must be recorded. Section 241, Cr.P.C. reads as under: Conviction on plea of guilty (1). If the accused pleads guilty, the Magistrate shall record the plea and may, in his discretion convict him there on. 10. A bare reading of Sections 240 and 241, CrPC makes it amply clear that framing of the charge and recording the plea of accused are knitted together. The provisions of these sections are express, explicit and mandatory in command. They admit no exception. The framing of the charges, their being read over and explained to the accused recording of his plea cannot be abdicated, simply because the accused admitted the prosecution case at a prior stage. Before accused is convicted in a warrant case on his plea of guilty, the procedure laid down in Sections 240 and 241, CrPC must be faithfully adhered to. 11. Sections 238 to 243, Cr.P.C correspond to Section 251A of the Code of Criminal Procedure, 3898. While construing the provision of Section 251A of the Old Code, it was observed in State v. Bhagwana that under Section 251, the Magistrate can convict an accused only after framing the charge and after the charge has been read and explained to the accused and he had pleaded guilty to it. It would be wrong for the Magistrate to convict the accused on his admission without framing any charge. 12. In State v. Thombi 1971 Cr.L.J 734, it was held that the conviction can not be sustained on a plea of guilty allegedly entered by the accused, but not recorded specifically. 13. Averting to the instant ca e as discussed above, the learned Magistrate framed no charges under Sections 454 and 380, IPC and consequently, no charges could be read over and explained to the accused. It is evident from the record that no plea of accused was recorded under Section 240 Cr.P.C for the apparent reason that no charges were framed against him. The procedure adopted by the learned Magistrate was, thus, erroneous and can not be sustained. 14. The learned Public Prosecutor made an attempt to impress that the charge framed by the learned Magistrate on November 22, 1982 should be taken sufficient. There is an insurmountable hurdle in accepting the contention of the learned Public Prosecutor. Section 248 of the Code of Criminal Procedure lays down the procedure when a previous conviction is charged against the accused. The proviso added to it, reads as under: Provided that no such charge shall be read out by the Magistrate nor shall the accused be asked to plead there to nor shall the previous conviction be referred to by the prosecution or in any evidence adduced by it, unless and until the accused has been convicted under Sub-section (2). 15. Thus, a charge of previous conviction is not to be framed before an accused is convicted and the accused can not be asked to plead about the previous conviction unless and until he is convicted in a subsequent case. 16. There is yet another reason to repeal the contention of the learned Public Prosecutor. As re-produced above, the charge framed on 22-11-1982 shows that the accused had simply admitted that he was once convicted in a theft case. There is nothing more in the reply, he gave before the Magistrate There is nothing in the plea of the accused recorded on the charge of previous conviction that he also pleaded guilty to the charges under Sections 454 and 380, IPC. 17. It was next argued by the learned Amicus Curiae that in appeal, the accused raised the contention that though, he had no pleaded guilty be' fore the Magistrate and yet, he was convicted. His this contention was summarily rejected. The contention is again not without force. A perusal of the judgment of the learned Sessions Judge shows that the accused did raise the above contention before him but due regard was not paid to it. It appears that no importance was given to this contention of the accused and it was summarily dismissed by the learned Sessions Judge. 18. The manner in which the trial was conducted by the learned Magistrate can not be appreciated. The procedural errors committed by him are grave and incurable to vitiate the whole trial. 19. In the result, the revision petition is allowed. The convictions and sentences of accused Shanker are set aside. The case is remanded to the trial court for fresh trial according to the provisions of law.

Author: S Vyas

Shanker vs State Of Rajasthan on 20 July, 1983

Rajasthan High Court

Gujarat High Court Case Information System Print SCA/6128/2011 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 6128 of 2011 ===================================== DASHRATHBHAI CHAMNAJI CHAUHAN - Petitioner(s) Versus ASHOK GAJJAR AND COMPANY & 2 - Respondent(s) ===================================== Appearance : MR HEMANT K MAKWANA for Petitioner(s) : 1, NOTICE SERVED for Respondent(s) : 1 - 3. ===================================== CORAM : HONOURABLE MR.JUSTICE RAVI R.TRIPATHI Date : 21/07/2011 ORAL ORDER1.0 Learned advocate Mr. RC Jani has instructions to appear on behalf of respondents. He wants time to take instructions in the matter, particularly, on the aspect of 'retrenchment compensation', which is referred to in Page 30 and 31. 2.0 S. O. to 28th July 2011. [ Ravi R. Tripathi, J. ] hiren     Top

Author: Ravi R.Tripathi,

Dashrathbhai vs Ashok on 21 July, 2011

Gujarat High Court

Gujarat High Court Case Information System Print FA/806/1992 2/ 2 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 806 of 1992 With FIRST APPEAL No. 807 of 1992 To FIRST APPEAL No. 843 of 1992 ========================================================= STATE OF GUJARAT & 2 - Appellant(s) Versus KHENGARBHAI KABHABHAI - Defendant(s) ========================================================= Appearance : MR SS SHAH, GP WITH MS TRUSHA PATEL, AGP for Appellant(s) : 1 - 3. NOTICE SERVED for Defendant(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 02/09/2008 ORAL ORDER First Appeal Nos.806 to 809 of 1992, 812 to 814 of 1992, 819 to 821 of 1992, 824 to 827 of 1992 and 830 to 831 of 1992: It has been the consistent practice of this Court not to enter into the merits of those appeals wherein the claim is a petty claim, and claims up to Rs.25,000/- have been quantified by this Court as petty claims. No question of law or principle is urged. These appeals are, therefore, summarily dismissed on the ground that they represent petty claim, without entering into the merits of the matter. It is made clear that this order shall neither be treated as a precedent in other proceedings nor under Section 28(A) of the Land Acquisition Act, 1923. No order as to costs. First Appeal Nos.810 to 811 of 1992, 815 to 818 of 1992, 822 to 823 of 1992, 828 to 829 of 1992 and 832 to 843 of 1992: Fresh rule returnable on 13/10/2008. Direct service is permitted. The claimants will be served by the appellant. (K.S.Jhaveri, J.) (ila)     Top

Author: Ks Jhaveri,&Nbsp;

State vs Khengarbhai on 2 September, 2008

Gujarat High Court

JUDGMENT R. Sengottuvelan, J. 1. The civil revision petitioner is the tenant in respect of the premises bearing door No. 1140, Godown Street, George Town, Madras against whom an order of eviction was passed by the third Judge, Court of Small Causes, Madras in H.R.A. No. 179 of 1979, on the ground of subletting. The landlord, the first respondent herein, initially filed H.R.C. No. 2519 of 1976, on the file of the Court of Small Causes, Madras against the civil revision petitioner herein and the second respondent heipin for eviction under Section 10(2)(ii)(a) of the Tamil Nadu Buildings (Lease and Rent Control) Act (hereinafter referred to as the Act) of the abovesaid premises let out to the civil revision petitioner for carrying on tobacco business only. The case of the landlord is that in the middle of the month of May, 1976, without the knowledge or consent of the landlord the tenant, the civil revision petitioner carried out extensive structural alterations to the portion in his occupation by demolishing certain walls and removing doors and windows and the said act committed by the tenant amounted to an act of waste resulting in damage to the building and also endangering the safety of the building and impairing the material utility and value of the building. The landlord also alleged that the civil revision petitioner had sublet the portion let out to him to the second respondent herein without the knowledge and consent of the landlord, the first respondent herein. The landlord sought the eviction of the civil revision petitioner on both the abovesaid grounds. 2. The learned Rent Controller after going through the evidence in this case found that there is no proof to show that the tenant had caused damage by way of alterations and other acts of waste to the petition-mentioned premises as alleged by the landlord. On the second ground of sub-letting the learned Rent Controller came to the conclusion that the tenant had sub-let the premises to the second respondent herein and ordered eviction of the civil revision petitioner under Section 10 (2)(ii)(a) of the Act. As against the orders of the learned Rent Controller the tenant filed an appeal to the Third Judge of the Court of Small Causes, Madras in H.R.A. No. 179 of 1979. The appellate authority also concurred with the findings of the learned Rent Controller and dismissed the appeal. As against the order of dismissal by the appellate authority this civil revision petition has been filed by the, tenant. 3. It is urged on behalf of the civil revision petitioner that the appellate authority einred in coming to the conclusion that the second respondent herein is a sub-tenant when actually he is only a licencee. The case of the civil revision petitioner is that according to the terms of Exhibit R-3 under which the second respondent was inducted into the possession of the petition-mentioned premises the transaction can only be said to be a licence in favour of the second respondent herein and not a lease which will amount to subletting the premises to the second respondent herein. On the other hand the case of the landlord is that the terms of Exhibit R-3 coupled with the other circumstances would indicate that the civil revision petitioner has sublet the premises to the second respondent herein. 4. In order to arrive at a conclusion whether the transaction under Exhibit R-3 will amount to a lease or licence the relevant terms of Exhibit R-3 will have to be referred to. The civil revision petitioner, who is the tenant, is referred to as the party of the first part and the second respondent herein is referred to as the party of the second part in the under-mentioned clauses of Exhibit R-3. The agreement Exhibit R-3 contains 17 clauses which are reproduced below: (1) The party of the first part offers to permit the party of the second part to occupy the portion of the godown at No. 40/41, Godown Street, Madras-1, under leave and licence. A sum of Rs. 300 per month shall be paid as compensation for the leave and licence granted to the party of the second part by the party of the first part. (2) The party of the first part will work for the. party of the second part on commission for securing the business of the party of the second part. A fixed commission of Rs. 700 per mensem is payable every month by the party of the second part to the party of the first part. (3) The party of the second part has agreed to pay and hereby pays Rs. 50,000 as deposit to the party of the first part, the receipt of which sum of Rupees fifty thousand only in cash is hereby acknowledged by the party of the first part. (4) The leave and licence is for 60 months. The compensation for leave and licence of Rs. 300 per mensem shall be paid in cash by the party of the first part, but Rs. 700 per mensem representing the commission alone shall be deducted and adjusted from and out of the said deposit of Rs. 50,000 paid this day. (5) The deposit of Rs. 50,000 will not carry any interest. (6) This sum of Rs. 50,000 is to be adjusted in the manner set out in Clause (4) above and is not liable to be refunded to the party of the second part on any account except as stated in clauses (10) and (17). (7) The party of the first part will have no claim on the business or assets of the party of the second part except the claim of Rs. 700 and Rs. 300 per mensem mentioned in Clause (4) supra. (8) It is hereby agreed between the parties that the party of the first part shall not have or raise any manner of claim or right over the goodwill of the party of the second part, and the party of the first part shall have no claim, right or title to claim anything with reference to the goodwill of the party of the second part. (9) This agreement is deemed to commence from 6th May, 1976, as the agreement is executed today. (10) If for any reason the party of the second part is obliged to vacate for no fault of his before the expiry of 5 years, the party of the first part is liable to refund the balance amount lying to the credit of the party of the second part immediately and in default of such refund, it will carry interest at 18 per cent, per annum. (11) The party of the first part hereby undertakes to be regular in payment of rent to his landlord and' shall not commit any default or suffer any collusive order of eviction to evict the party of the second part at any time. (12) If the party of the second part continues to occupy the godown beyond the period of five years, the party of the second part shall be liable to pay twice the fixed commission i.e., Rs. 1,400 per mensem to the party of the first part. (13) If both parties agree to extend the period of leave and licence beyond 5 years, then the period may be extended on such terms and conditions to be agreed upon between the parties. (14) The party of the first part hereby undertakes not to cause any obstruction to the cloth business to be conducted by the party of the second part in the godown described below. (15) The party of the second part will have a sub-meter provided for his portion at his cost. (16) The party of the second part shall effect the repairs, white-washing, etc., to the portion under his occupation. (17) If for any reason, the party of the second part is forced to vacate under the process of liaw, then the party of the first part will be liable to refund whatever the balance of deposit lying with the party of the first part after adjusting all the amounts due by the party of the second part. Bearing in mind the above clauses and the, other surrounding circumstances we will have to come to a conclusion whether the transaction amounts to a lease or licence. Lease is defined under Section 105 of the Transfer of Property Act, as follows: A lease of immovable property is a transfer of a right to enjoy such property made for a certain time, express Or implied or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms. The transferor is called the lessor, the transferee is called the lessee, the price is called the premium, and the money, share, service or other thing to be so rendered is called the rent. Licence is defined under Section 52 of the Indian Easements Act, 1882, as follows: Where one person grants to another, or to a definite number of other persons, a right to do, or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a licence 5. In the light of the above said definitions it is seen that if an interest in an immovable property entitling the transferor to enjoyment, is created, it is a lease. If permission to use the property without right to exclusive possession of the property is granted it is said to be a licence. The relevant paragraphs from Halsbury's Laws of England, Volume 23, dealing1 with lease and licence also throws light on the subject. The following are the relevant paragraphs: 1022. Principles for determining whether agreement creates lease or licence. - In determining whether an agreement creates between the parties the relationship of landlord and tenant or merely that of licensor and licencee the decisive consideration is the intention of the parties. The parties to an agreement cannot, however, turn a lease into a licence merely by stating that the document is to be deemed a licence or describing it as such; the relationship of the parties is determined by law on a consideration of all relevant provisions of the agreement; nor will the employment of words appropriate to a lease prevent the agreement from conferring a licence only if from the whole document it appears that it was intended merely to confer a licence. In the absence of any formal document the intention of the parties must be inferred from the circumstances and the conduct of the parties. 1023. Nature of grant of exclusive possession. - The fact that the agreement grants a right of exclusive possession is not in itself conclusive evidence of the existence of a tenancy, but it is a consideration of the first importance. In deciding whether a grantee is entitled to exclusive possession regard must be had to the substance, of the agreement. To give exclusive possession there need not be express words to that effect; it is sufficient if the nature of the acts to be done by the grantee requires that he should have exclusive possession. The grant of an exclusive right to a benefit can, however, be inferred only from language which is dear and explicit. If an exclusive right of possession is subject to certain reservations or to a restriction of the purposes for which the premises may be used, the reservations or restriction will not necessarily prevent the grant operating as a lease. 1024. When Grant conferring Exclusive Possession operates merely as licence. - A grant which confers the right to exclusive possession may operate as a licence in the following circumstances which negative the intention to create a lease A requisitioning authority which has no estate or interest in the land cannot grant a lease, and any grant by the authority can only take effect as a licence. A deserted wife is entitled to exclusive possession of the matrimonial home and cannot be evicted by her husband or persons claiming under or through the husband with knowledge of the wife's rights, but her right is a mere licence or equity and does not amount to an equitable estate or interest. A family arrangement may include an irrevocable grant of the right to exclusive possession but the grantee may nevertheless be a licencee and not a tenant and cannot acquire title based on adverse possession. A person may be allowed temporary rights of exclusive possession to alleviate hardship or for other reasons which negative the intention to create a tenancy which would confer on the grantee a permanent right of occupation under the Rent Restriction Acts and in these circumstances the grant may be construed as a licence. Where, however, a purchaser is allowed into possession pending completion, it seems that the purchaser is normally a tenant at will and not a licensee. 1025. Instance of agreements, creating licences. - A licence is normally created where a person granted the right to use premises without becoming entitled to exclusive possession thereof, or the circumstances and conduct of the parties show that all that was intended was that the grantee should be granted a personal privilege with no interest in the land. If the agreement is merely for the use of the property in a certain way and on certain terms while the property remains in the possession and control of the owner, the agreement will operate as a licence, even though the agreement may employ words appropriate to a lease. With this factual and legal background we will have to examine the clauses in Exhibit R-3 and ascertain the intention of the parties to the transaction and come to a conclusion whether the transaction amounts to a lease or licence. It is urged on behalf of the tenant, the civil revision petitioner, that merely from the fact that the possession was delivered to the second respondent herein it cannot be said that the transaction is a lease. Relying upon the decision reported in Nina Ghosh v. Daultras Arora and Ors. it is urged on behalf of the civil revision petitioner that the distinction between a lease and licence, in spite and irrespective of exclusive possession of the grantee under the particular document, turns on the actual intention of the parties. Reliance is also placed on behalf of the civil revision petitioner on the case in Eesant Singh v. Cantonment Executive Officer, Jammu A.I.R. 1960 J. & K. 83, where the following observation is found: The view expressed in some of the earlier decisions that the test whether exclusive possession has been granted or not will be decisive in determining whether the grant is a lease or a licence does not appear to have been adhered to in more recent decisions which have pointed out that the real test for ascertaining the true nature and character of the transaction is the intention of the parties. My attention is also drawn by the civil revision petitioner to a case decided by a sinele Tudoe of the Delhi Hisrh Court reported in Delhi Simla Catholic Archdiocese v. State of Uttar Pradesh and Ors , where the following observation is found: It is no doubt true that the mere faot of a person beine in exclusive possession would not be conclusive in favour of the. some beine a lease because there may be other circumstances which may still negative the inference of a lease to indicate the same being only a licence. Mv attention is also drawn to a passage in Fasements and Licences by B.B Kativar (9th Edition at page 834), which is as follows: The following propositions are well-established: (1) to ascertain whether a document creates a licence or lease, the substance of the document must be preferred to the form: (2) The real test is the intention of the parties whether they intended to create a lease or a licence; (3) If the document creates an interest in the property, it is a lease; but, if it only permits another to make use of the property of which the lejjal possession continues with. the owner, it is a licence; and (4) If under the document a party gets exclusive possession of the property, prima facie he is considered, to be a tenant; but circumstances may be established which negative the intention to create a lease. 6. The contention on behalf of the civil revision petitioner in this case is though exclusive possession is granted to the second respondent herein yet if the entire circumstances and the recitals in Exhibit R-3 are taken into consideration the transaction can only be said of be a licence and not a lease. On the other hand the contention of the landlord, the first respondent herein, is that Exhibit R-3 is camouflage to hide the sub-letting by the civil revision petitioner and that the word "licences" is used in Exhibit R-3 only as a cloak to hide the sub-letting by the civil revision petitioner. The following terms of Exhibit R-3 are pointed out by the first respondent herein in support of his contention that the transaction is a lease and not a licence: 1. According: to Exhibit R-3 the civil revision petitioner is entitled to get a compensation of Rs. 300 per month together with a fixed commission of Rs. 700 per month totaling Rs. 1.000. This arrangement is only a device to pet a rent of Rs. 1,000 per month from the sub-tenant; 2. The fixed commission of Rs. 700 payable to the civil revision petitioner is not fixed with reference to any turnover and as such it cannot be railed as a commission. The civil revision petitioner had not filed any document to show that he had done any work for the second respondent; 3. As per clauses (5) and (6) the second resnondent deposited a sum of Rs. 50,000 with the civil revision petitioner free of interest and that the commission of Rs. 700 per month is to be adiusted from out of the sum of "Rs. 50 000 makes the case of the civil revision petitioner that he is only a licensee improbable as no licensee will denosit sur-h a heavy sum of Rs. 50,000, losing interest on the same. 4. The term of the contract is said to be five wars according to Clause (4) of Exhibit R-3. A licence is terminable at any time and the term of five years fixd in Exhibit R-3 indicates that the transaction is a lease; 5. Clause (6) of Exhibit R-3 provides that a sum of Rs. 50,000 paid by the second respondent herein to the civil revision petitioner is not liable to be returned to the second respondent herein but the same is to be adjusted towards of the commission of Rs. 700 payable to the civil revision petitioner as per Exhibit R-3, This arrangement also indicates that the sum of Rs. 50,000 was paid to the civil revision petitioner as an interest free advance from which the amounts payable to the civil revision petitioner as per Exhibit R-3 is to be adjusted. This arrangement also probablises the case of the first respondent herein that the arrangement is a lease and not a licence; 6. Clause (7) of the agreement Exhibit R-3 provides that the civil revision petitioner will have no claim in respect of the business carried on in the premises in the occupation of the second respondent herein. If the case of the civil revision petitioner that the transaction is only a licence, is true then in the natural course of the things the assets of the business will continue to vest with the civil revision petitioner; 7. It is also provided as per Clause (8) of Exhibit R-3, the civil revision petitioner shall not claim any manner of right over the goodwill of the business carried on by the second respondent which indicates that the civil revision petitioner has no manner of right in the business. This again indicates that the transaction is a lease and not a licence; 8. As per Clause (10) of Exhibit R-3 it is seen that if for any reason the second respondent is obliged to vacate the premises before the expiry of five years the civil revision petitioner is liable, to refund the balance amount out of the deposit of Rs. 50,000 and in default of such refund the civil revision petitioner is bound to pay interest at 18 per cent, per annum. This clause indicates that the deposit of Rs. 50,000 made by the second respondent to the civil revision petitioner is made only as an advance to ensure the payment of rent; 9. Clause (12) of Exhibit R-3 provides that if the second respondent herein continues to occupy the premises beyond the period of 5 years he is liable to pay Rs. 1,400 per month to the civil revision petitioner. This stipulation is not in conformity with the case of the civil revision petitioner that the transaction is only a licence; 10. Clause (13) of Exhibit R-3 provides for extension of the term of five years probablising the fact that exhibit R-3 is a lease; 11. Clause (15) of Exhibit R-3 provides that the second respondent herein is forced to vacate under the process of law then the civil revision petitioner is liable to refund the balance of dep0osit out of Rs. 50,0000 deposited by the second respondent herein. This clause indicates that there is an apprehension On the part of the parties to the Transaction that the landlord may take proceedings For eviction on the ground of sublettins. 7. The above said clauses in Exhibit R-3 will have to be considered along with certain circumstances existing in this case and brought out in the evidence before the Rent Controller. 8. The first circumstance that will have to be considered is the user of the premises by the second respondent herein. According to the evidence let in the premises has got two openings, one in godown street. The portion facing Audiappa Naicken Street is having door No. 7/8 and the portion facing Godown Street is having door No. 40/41. The portion Used by the second respondent herein is The portion bearing door No. 40/41, Godown Street And the civil revision petitioner will not be In a position to enter the portion facing the Godown Street, occupied by the second respondent Herein. Similarly the second respondent Herein will not have any access to the Portion occupied by the civil revision petitioner Facing Audiappa Naicken Street and bearing door No. 7/8. 9. The second circumstance that will have to be considered is that the business purported to have been carried on by the civil revision petitioner in the portion facing Audiappa Naicken Street is the business in tobacco and The second respondent herein is carrying on The business in textiles in the portion lacing Godown Street in partnership with others. It is also in evidence that the civil revision Petitioner is not a partner in the textile business Carried on in the portion facing Godown Street. 10. The third circumstances, which is relevant for the purpose of this enquiry is the textile business carried on by the second respondent herein known as "64 Textiles" is a partnership firm with five partners of whom sion petitioner has no manner of right in the above said textile business. 11. The fourth circumstances relevant for consideration is the fact that the civil revision petitioner had passed receipts for the payment of Rs. 300 per month to the second respondent Herein as evidenced by Exhibits P-4 to P-32. There recipts are printed receipts With the title P.W. 2, The clerk of the second respondent herein, had Produced these recipts and had given evidence That the second respondent herein used To pay rent to the civil revision petitioner issued the Receipts Exhibits P-4 to P-32 evidencing the Payment of rent. The evidence of P.W. 2 Is attacked by the civil revision petitioner on The ground that there is collusion between the It is seen that P.W. 2 had attended court in pursuance of the summons taken out by the First respondent herein, and that apart from Producing the documents Exhibits P-4 to P-32, D.W. 2 had not give any evidence probablising collusion between the second and the First respondents herein. The rent recipts Issued by the civil revision petioner to the Second respondent herein is duly proved by P.W. 2 and this circumstance also indicates That the transaction is a lease and not a licence. 12. The fifth circumstance that will have to be considered is the conduct of the civil revision petitioner in putting forth his case at several stages of the proceedings. Initially the first respondent issued a notice to the second respondent stating that he had sublet the premises as per the office copy of the registered notice Exhibit p-1, dated 25th May 1976. The said notice was received by the civil revision petitioner on 27th May, 1976 as per the postal acknowledgment Exhibit P-2. The civil revision petitioner had not issued any reply to this notice. 1 hough the civil revision petitioner who was examined as R.W. 1 before the Rent Controller states that he had issued a reply to Exhibit P-1, the reply notice is not forthcoming. In the absence of the production of reply notice we have to take it that no reply is given by the civil revision petitioner to the notice Exhibit P-1. The allegation of the first respondent herein made in Exhibit P-1, that the premises was sublet by the civil revision petitioner would not have gone without a denial by the civil revision petitioner if the case of the civil revision petitioner is true. In the counter-statement filed before the Rent Controller in answer to the plea of the first respondent herein that the civil revision petitioner has sublet the premises the civil revision petitioner stated that himself and the second respondent herein are conducting a partnership business in the premises. In the evidence before the Rent Controller, the civil revision petitioner, R.W. 1 goes to the extent of saying that there is a partnership deed executed on a stamp paper but no steps have been taken to produce the partnership deed. During the course of the evidence the civil revision petitioner had put forward a different case that the second respondent is only a licencee under the first respondent. The conflicting pleas of the civil revision petitioner during the several stages of the proceedings make the case of the civil revision petitioner unbelievable. 13. In addition to the above said circumstances the clerk of the second respondent herein, who was examined as P.W. 2 deposed that no commission was paid and he also says that exclusive possession of the premises facing Godown Street was given to the second respondent and that the civil revision petitioner enters the premises facing Audiappa Naicken Street through a different entrance. All these circumstances probablise the fact that what was intended under Exhibit R-3 is only a lease and not a licence. In the case reported in Sohan Led Naraindas v. Laxmidas Raghunath Gadit , the Supreme Court in dealing with the difference between a lease and hence observed as follows: Intention of the parties to an instrument must be gathered from the terms of the agreement examined in the light of the surrounding circumstances. The description given by the parties may be evidence of the intention but is not decisive. Mere use of the words appropriate to the creation of a lease will not preclude the agreement operating as a licence. A recital that the agreement does not create a tenancy is also not decisive. The crucial test in each case is whether the instrument in intended to create or not to create an interest in the property the subject-matter of the agreement. If it is in fact intended to create an interest in the property it is a lease; if it does not, it is a licence. In determining whether the agreement creates a lease or a licence the test of exclusive possession, though not decisive, is of significance. In the, case reported in Kidar Nath v. Swam Purshad and Ors A.I.R. 1978 Punj. & Har. 204 a single Judge of the Punjab High Court observed as follows: It is clear that the exclusive possession of the premises was given to the appellant and he was required to pay a monthly rent of Rs. SO though described as licence-fee. It is in the statement of the appellant himself as D.W. 9, that machinery for the purpose of manufacturing hosiery goods had been installed by him in the said premises and that electric meter was also in his name, In the present case the circumstance that the appellant was allowed to have the electric meter and the electric connection of the premises in his own name, gives a clear indication of the real intention of the parties that the appellant was to be on the premises as a tenant and a lessee. In the case reported in Balavantsingji Anand v. Bhagwantrao Ganpatrao Deshumkh . a single Judge of the Bombay High Court had occasion to consider the provision in the deed that the grantor shall at all times as of right and without interference or objections be entitled to enter and visit the portion of the land granted. Such a provision unmistakably postulates that the grantor is not in possession of the land and that is the reason that he has himself reserved the right to enter the land or to visit the land. Right of entering or right to visit is something far different from possession in respect of the land. As a matter of fact even in the case of a lease the landlord does have a right to visit the premises in question. In the case reported in Chandu Lai v. Municipal Corporation of Delhi , a Full Bench of the Delhi High Court in the course of the judgment dealing with the right of parties with reference to kiosk auctioned out by the Delhi Municipality observed as follows: The question accordingly is whether the various clauses of the document in question, when read as a whole, in any manner carve out an interest in the demised property in favour of the petitioners. Although a person who is let into exclusive possession is prima facie to be considered a tenant, nevertheless if the circumstances negative such a conclusion and show that no tenancy was created, the person in possession would not be held to be a tenant. It is trite saying that the intention of the parties is the real test for ascertaining the character of a document. It is beyond challenge that if a document gives only a right to use the property in a particular way but its possession and control remains with the owner thereof, it will be a licence. In such a case the legal possession remains with the owner of the property, the licensee being permitted to make use of the property for a particular purpose. It would, therefore, be seen that but for the permission the licensee's possession would be unlawful. Exclusive possession does not militate against the concept of a licence, if the circumstances negative any intention to create a tenancy. Relying on the above decision it is contended on behalf of the civil revision petitioner that the exclusive possession of the premises facing Godown Street will not militate against the case of a licence set up by the civil revision petitioner. But in the above said case it is seen, that the possession and control of the premises remained with the owner. In the present case the evidence goes to show that the civil revision petitioner did not have the possession and control of the premises with him. Hence the principle laid down in the Full Bench decision of the Delhi High Court cannot be applied to the facts of the present case. 14. The case reported in Qndrat Ullah v. Municipal Board, Bareilly , is relied on by the first respondent herein in support of his case that the transaction in question is a lease. In that case in pursuance of an agreement with the municipality evidenced by a deed where a person is allowed to collect the rents and bazar dues from sheds and shops and the internal roads within the market, the deed was held to be a lease deed and not a mere licence. The Supreme Court held that the bazar dues constitute, a benefit arising out of the land and may be immovable property which can be leased out. 15. Bearing in mind the principles laid down in the above-said decisions if we examine the facts of the present case, a conclusion will have to be arrived at from the following circumstances present in this case: 1. The second respondent in the civil revision petition is entitled to exclusive, possession of the premises facing Godown Street in which he is carrying on business in partnership with other partners; 2. The civil revision petitioner herein has no manner of right in the business carried on in the portion of the premises, facing Godown Street; 3. The civil revision petitioner has got an exclusive entrance for the portion of the premises occupied by him and he has no> access to the portion of the premises occupied by the second respondent; 4. The portion occupied by the second respondent herein is provided with a sub-meter ; 5. The monthly payment though termed as compensation and commission as per Exhibit R-3 payable by the second respondent to the civil revision petitioner is in reality the rent for the premises occupied by the second respondent; 6. The demise is for a fixed term of five years; 7. No power is reserved for the civil revision petitioner to cancel the contract before the fixed term expired; 8. Provision is also made for extending the term of the contract by mutual agreement; 9. Penal provisions are incorporated in Exhibit R-3 providing for enhanced payment in case the second respondent continues after the term of five years. All these facts clearly go to show that what was demised as per Exhibit R-3 is an interest in immovable property and not a mere licence as contended by the civil revision petitioner. 16. The word "licence" is used in Exhibit R-3 only as a camouflage and in order to escape the consequences of subletting if possible. The terms of Exhibit R-3 and the several circumstances pointed out, in the above discussion clearly indicate that the second respondent is only a sub-tenant in respect of the portion of the premises facing Godown Street. It is evident that the civil revision petitioner had sublet a portion of the premises without the written consent of the landlord. 17. Both the Courts below had rendered a cuncurrent finding on fact that what was demised in Exhibit R-3 is an interest in immovable property by the civil revision petitioner in favour of the second respondent. The Supreme Court in the case reported in S. Rajalakshmi Dyeing Works and others v. Rengaswamy Clhettiar1, expressed the view that concurrent findings based on facts by both the Courts below cannot be interfered with by the High Court exercising jurisdiction under Section 25. In the course of the judgment the Supreme Court observed as follows: In fact it has to be noticed that under Section 25 the High Court calls for and examines the record of the appellate authority in order to satisfy itself. The dominant idea conveyed by the incorporation of the words to satisfy "itself under Section 25 appears to be that the power conferred on the High Court under Section 25 is essentially a power of Superintendeince. Therefore despite the wide language employed in Section 25 the High Court quite obviously should not interfere with findings of fact merely because, it does not agree with the finding of the subordinate authority. The power conferred on the High Court under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, may not be as narrow as the revisions power of the High Court under Section 115 of the Code of Civil Procedure; but in the words of Untwalia, in Dattonpant Gopalavarao v. Vithalrao Marutirao It is not wide enough to make the High Court a second Court of first appeal. 18. The concurrent findings of both the Rent Controller and the Appellate Authority are correct. Under the circumstances no interference is called for in respect of the) concurrent findings of both the Courts below. Hence the civil revision petition is dismissed. There will be no order as to costs. The tenant is given three months time to vacate.

Author: R Sengottuvelan

T. R. Srinivasa Chetty vs G. Nagarajan And Anr. on 4 September, 1981

Madras High Court

[Section 8A] [Complete Act]

Central Government Act

%Sd/'9 §.'fE§$§3§§i3s»'f§; ;:a%é%:i:":;s;: % ".}?:?Lr'r'3 :%..§::§;sa3; gg ' 5%?" :;' . 16$ §<»<§§ ".0 E390 39.3 S_<»<zmS_ mo ._.mDCU $6.1 .3_<h.<2~._.uO. $0 ._.~§CU _.§: $_<.»<zm$_ ".0 102.. §<h<zm§ me Esau 20:.

Author: N.Ananda

Smt Narayanamma W/O Late J.M. ... vs M/S Asiatic Foundry Pvt Ltd on 21 August, 2008

Karnataka High Court

Court No. - 29 Case :- WRIT - A No. - 22736 of 2008 Petitioner :- M.K. Aggarwal Project Engineer Noida Respondent :- State Of U.P. Thru' Principal Secy. & Others Petitioner Counsel :- Vineet Pandey,Manu Khare Respondent Counsel :- C.S.C.,Ramendra Pratap Singh Hon'ble Satya Poot Mehrotra,J. Hon'ble Kashi Nath PandeV.J. Case called out in the revised list. None is present to press this application. The application is rejected. Order Date :- 28.1.2010 Sushma

M.K. Aggarwal Project Engineer ... vs State Of U.P. Thru' Principal ... on 28 January, 2010

Allahabad High Court