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IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.14928 of 2008 KAPIL DEO PRASAD Versus THE BIHAR STATE CO-OPT.LAND DEVELOPMENT BANK LTD. & ANR. ----------- PNM (Shailesh Kumar Sinha, J.) 2. 18.11.2010 Learned counsel for the petitioner is present. Learned counsel for the respondent-Bank prays for time to file counter affidavit as he has received the copy of the writ application today itself from the learned counsel for the petitioner. As prayed for, list this case after four weeks within first- fifty cases to enable filing of the counter affidavit.

Kapil Deo Prasad vs The Bihar State Co-Opt.Land De on 18 November, 2010

Patna High Court - Orders

Court No. - 26 Case :- WRIT - A No. - 5532 of 2010 Petitioner :- Sushil Kumar Tiwari Respondent :- State Of U.P. & Others Petitioner Counsel :- Kshetresh Chandra Shukla Respondent Counsel :- C.S.C.,R.A. Akhtar Hon'ble Shishir Kumar,J. Learned Standing Counsel accepted notices on behalf of respondents No.1 & 2. Sri R.A. Akhtar. Advocate, accepted notices on behalf of respondent No.4. Petitioner is permitted to serve respondent No.5 by registered post. Steps be taken within one week. All the respondents may file a counter affidavit within one month. Petitioner will have two weeks, thereafter, to file a rejoinder affidavit. List thereafter. In the facts and circumstances of the case, the order impugned appears to be verbatim of the earlier order impugned, which has already been set aside. The petitioner is entitled for interim relief. It is, therefore, directed that in the next vacancy, petitioner will be sent for training and will be permitted to complete the same. Order Date :- 3.2.2010 NS

Sushil Kumar Tiwari vs State Of U.P. & Others on 3 February, 2010

Allahabad High Court

Gujarat High Court Case Information System Print CR.MA/10656/2010 2/ 2 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 10656 of 2010 In CRIMINAL APPEAL No. 1561 of 2010 ========================================= STATE OF GUJARAT Versus SAHDEVSINH CHHANUBHA JADEJA & ANR ========================================= Appearance : Appearance : MR L.B. DABHI APP for Applicant ========================================= CORAM : HONOURABLE MR.JUSTICE A.M.KAPADIA and HONOURABLE MR.JUSTICE BANKIM.N.MEHTA Date : 07/02/2011 ORAL ORDER(Per : HONOURABLE MR.JUSTICE A.M.KAPADIA) 1 Having considered the submission made by Mr. L.B. Dabhi, learned APP, for the applicant - State of Gujarat and a perusal of the impugned judgment and order dated 11.6.2010, rendered in Special Atrocity Case No. 26 of 2008, by the learned Special Judge and Presiding Officer, Fast Track Court, Jamnagar, acquitting the respondents-accused of the offences under Sections 504, 506(2) and 114 of the Indian Penal Code and Section 3(1)(10) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, according to us, this is a fit case to grant Leave to file appeal. 2 Hence, Leave to file Appeal is granted. 3 This application stands disposed of accordingly. (A.M.KAPADIA, J.) (BANKIM.N.MEHTA, J.) pnnair     Top

Author: A.M.Kapadia,&Nbsp;Honourable Mr.Justice Bankim.N.Mehta,&Nbsp;

Appearance vs Presiding Officer on 7 February, 2011

Gujarat High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11861 of 2006 SUDHIR KUMAR Versus THE STATE OF BIHAR & ORS ----------- NKS/- ( Rakesh Kumar,J.) 02 11-04-2011 On call, none appeared on behalf of the petitioner either to press this petition or to make a prayer for adjournment. However, Sri Rohit Mishra, learned A.C. to Addl. Advocate General No.8 is present. The case is adjourned for the day. Put up this case on 13.04.2011.

Sudhir Kumar vs The State Of Bihar &Amp; Ors on 11 April, 2011

Patna High Court - Orders

IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.34717 of 2011 1. Mithilesh Singh son of Dani Singh, resident of Village Bamanpur, Bazara P.S. Hisua, district-Nawadah. 2. Kishore Kumar Sinha alias Kishori Kumar Sinha, son of Ganesh Sinha, resident of Village Nandlal Bigha, P.S. Hisua, district-Nawadah. ........Petitioners. Versus The State of Bihar. ....Opposite Party. ----------- Kamlesh (Akhilesh Chandra, J.) 2. 11.11.2011 Heard learned counsel for the petitioners and learned Additional Public Prosecutor for the State. The petitioners, apprehending their arrest in connection with Complaint Case No. 979/1997 for the offences under Sections 420/467/468 of the Indian Penal Code, are named accused in this complaint case being the scribe and witness to a deed is executed in the year 1997 for which title suit is also going on between the parties claiming other sides. Considering the facts and circumstances of the case, in the event of their arrest or surrender within a period of four weeks, let the above-named petitioners be enlarged on bail on furnishing bail bond of sum of Rs. 10,000/- (ten thousand only) each with two sureties of the like amount each to the satisfaction of Sub-Divisional Judicial Magistrate, Nawada, in connection with Complaint Case No. 979/1997, subject to 2 condition under section 438(2) of the Code of Criminal Procedure, and additional condition to attend the court regularly at least for one year or till disposal of the case, whichever is earlier and in the event of failure on two consecutive dates, without any reasonable explanation, the privilege granted shall be deemed to be cancelled.

Mithilesh Singh & Ors. vs The State Of Bihar on 11 November, 2011

Patna High Court - Orders

[Section 2] [Complete Act]

Central Government Act

ORDER Amitava Lala, J. 1. In spite of repeated calls nobody appeared on behalf of the respondents. No affidavit has been filed. 2. In the judgment dated September 21, 1984 passed in C.R. No. 12432(W) of 1976 (Gulabchand Harekchand v. State of West Bengal Reported in [1985] 59 STC 224 (Cal)) in a co-ordinate jurisdiction it was held that tax cannot be levied on "gudakhu" as this is covered by the expression "tobacco". The petitioner's claim for exemption under Rule 3(28)(b) of the Bengal Sales Tax Rules, 1941 should be allowed and further held that as "gudakhu", not being a tooth paste or tooth powder, is not subject to the levy of tax under the West Bengal Sales Tax Act and also under the Entry Tax Act. 3. An appeal was preferred from the said order dated September 21, 1984 and by a judgment and/or order dated July 25, 1990, division Bench of this Court was pleased to dismiss the appeal by holding that it is not understood in common parlance that "gudakhu" being "tobacco" is dentifrice. Therefore, only the persons desire to have effect of "tobacco" are interested in "gudakhu". At the relevant point of time--as it is found from the notice dated 21st December, 1976 to 19th April, 1979--it was not specifically included in the scheduled items for levy of entry tax. Therefore, the earlier judgment of the co-ordinate jurisdiction which was merged with the judgment of the division Bench by upholding the same up to 28th April, 1979 has a binding effect in this matter. 4. Under the circumstances, rule is made absolute. Interim order, if any, stands confirmed. 5. Thus, the writ petition stands disposed of. No order is passed as to costs. 6. Since the matter is related to different periods only but in-between the self-same parties, the matter is re-numbered not separately but in fact the earlier order is reviewed in the similarly placed situation and the order is passed accordingly by following the principles laid down in (1999) 2 Cal LJ 97 (Ashish Kumar Roy v. Union of India). 7. Let xeroxed certified copy of this dictated order be supplied to the parties by the department within seven days from the date of putting in requisition for drawing up and completion of the order as well as the certified copy thereof. 8. All parties are to act on a xeroxed signed copy of dictated order upon usual undertaking and as per the satisfaction of the officer of this Court as above.

Author: A Lala

Gulab Chand Harek Chand And Ors. vs State Of West Bengal And Ors. on 15 May, 2001

Calcutta High Court

[Section 68(1)] [Section 68] [Complete Act]

Central Government Act

Court No. - 22 Case :- SERVICE SINGLE No. - 4415 of 2010 Petitioner :- Upendra Bahadur Singh Respondent :- State Of U.P. Through Secy. Basic Education Lucknow And Ors. Petitioner Counsel :- Pankaj Kumar Tiwari Respondent Counsel :- C.S.C.,P.R.Kanaujia Hon'ble Satyendra Singh Chauhan,J. Case called out in the revised list. Learned counsel for the BSA is not present. Heard learned counsel for the petitioner. Submission of learned counsel for the petitioner is that on the basis of mutual transfer, the petitioner was transferred to Primary School, Lalganj, Raebareli on 28.4.2010. The said order could not be given effect to on account of intervening facts and on account of the fact that the petitioner was deputed in the census operation. The petitioner thereafter presented himself for joining but he was not permitted and all of a sudden the impugned order dated 29.6.2010 has been passed by means of which opposite party no.4 has been transferred at the place of the petitioner. This shows malafide, arbitrary and negligent working of the BSA, who has passed this order without application of mind and accommodated opposite party no.4 with ulterior motive. In these circumstances, the order dated 29.6.2010, contained in Annexure No.1 to the writ petition, shall remain stayed till the next date of listing. Opposite party no.2 is directed to appear before this Court on 26th July, 2010 and shall also file his personal affidavit by the next date. List on 26th July, 2010. Order Date :- 5.7.2010 RBS/-

Upendra Bahadur Singh vs State Of U.P. Through Secy. Basic ... on 5 July, 2010

Allahabad High Court

The answers will now be remitted to the referring court. 11. The learned Advocate-General appeared as amicus curiae at the hearing and urged that the notice in the present case is a valid notice under Section 13(6) of the Ac-1 by necessary implication. We express Answers It is not necessary to make an express statement, but it is sufficient if it can reasonably be inferred that it was intended to convey the information to a tenant acquainted with the facts of the case, that if the notice is not complied with, a suit will be filed. Yes, if the grounds set out are grounds which entitle the landlord to obtain a decree or order for recovery of possession; that is to say the grounds specified in Sub-section (1) of Section 13 except clauses (j) and (k). Yes. our appreciation of the assistance rendered by the learned Advocate General and Mr. Shankar Ghose in decidino the case. Arun K. Mukherjea, J. 12. I agree S.K. Mukherjea, J. 13. I agree. JUDGMENT Sinha, C.J. 1. This is a reference in which three questions have been referred to us for answer. The relevant facts are all set out in the order of reference. It will be convenient to refer to it briefly. The suit was for eviction of the defendant, a monthly tenant, from one ground floor room within the premises 71A, Colootolla Street, Calcutta. A notice to quit dated 21st September. 1961 was given by the landlord through his lawyer, a copy of which is set out in the order of reference. It sets out two grounds, corresponding to clauses (a) and (f) of Section 13(1) of the West Bengal Premises Tenancy Act. 1956 (hereinafter referred to as the 'said Act'). There is no express statement therein to the effect that in default of making over possession a suit will be filed. As the referring Court was of the view that the proposition laid down in the decision of the Division Bench in Dulin Chand Dutta v. Renuka Banerjee, 68 Cal WN 296 that if a notice to quit would not, by itself, be a notice of suit, the mere mention of the ground of ejectment in a notice to quit, would not make it so, is too wide, a reference was made to a Full Bench for its decision on three points which have been 5et out in the Order of Reference and are as follows: (1) In a consolidated notice under the Transfer of Property Act (sections 106 and 111) and Section 13(6) of the West Bengal Premises Tenancy Act. 1956 is it necessary to make a statement that a suit will be filed if the notice is not complied with? (2) Where notice is given, setting out any of the grounds in Section 13 of the West Bengal Premises Tenancy Act. 1956 and particularly if it is written by a lawyer on behalf of the landlord, is it not a sufficient compliance with the provisions of Section 13(6), although there is no express statement that a suit will be filed in default of compliance with the notice ? (3) Is the notice to quit in this case a legally valid notice?" Under the Transfer of Property Act (4 of 1882) a contractual tenancy which is in the nature of a monthly tenancy, that is to say in the nature of a lease from month to month, could be terminated by the landlord by serving upon the tenant. 15 days' notice expiring with the end of a month of the tenancy, provided of course that there was no contract or local law or usage to the contrary. The only condition for terminating the tenancy was the service of such a notice. Owing to hardship caused by the dearth of accommodation, Bent Control Laws have been enacted all over the world, and have been more or less continuously imposed in Bengal since 1920. We are concerned in this case with the provisions of the said Act. Chapter III of the said Act deals with suits and proceedings for eviction. Section 13 gives protection to tenants against eviction. The relevant provisions in Section 13 are as follows: "13. Protection of tenant against eviction (1) - Notwithstanding anything to the contrary in any other law, no order or decree for the recovery of possession of any premises shall be made by any Court in favour of the landlord against a tenant except on one or more of the following grounds namely: - (a) where the tenant or any person residing in the premises let to the tenant without the previous consent in writing if the landlord transfers, assigns or sublets in whole or in part the premises held by him: (f) where the premises are reasonably required by the landlord either for purposes of' building or rebuilding or for making thereto substantial additions or alterations or for Ms own occupation if he is the owner or for the occupation of any person for whose benefit the premises are held: (6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in sub-section (11 except the grounds mentioned in clauses (i) and (k) of that sub-section shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy." 2. It will thus be seen that a tenant gets protection against the passing of in order or a decree for the recovery of possession of any premises in his occupation unless he falls within one or the other of the eleven grounds set out in sub-section (1) of Section 13. For our purposes, it is most important to bear in mind the fact that the immunity granted under Sub-section (1) is from an order or a decree for recovery of possession being passed against the tenant. This has been expressly stated in the provisions of the sub-section itself. In other words no tenant can possibly be mistaken as to two facts, firstly that if he does not come within any of these eleven exceptions mentioned in sub-section (1), he is completely protected from any order or decree being passed against him for recovery of possession of any premises in his occupation and secondly that if he does come within any of these exceptions the landlord is entitled to an order or a decree being obtained for the recovery of possession of the premises in his occupation; provided of course that there is nothing to prevent him from doing so by any other provision of law. There are two provisions of law to be considered in this connection. Assuming that the tenant comes within one or more of the eleven grounds which entitles the landlord to obtain an order or decree for recovery of possession there must be a termination of the tenancy under Section 106 of the Transfer of Property Act. The landlord is not entitled to an order or decree for possession before terminating the tenancy, which is contractual. A second condition is imposed by sub-section (6) of Section 13. It speaks of a notice to be given before a suit or proceeding is instituted, and the period of the notice is one month expiring with a month of the tenancy. It must be remembered that Section 106 of the Transfer of Property Act does not speak of the filing of any suit or legal proceeding. It merely lays down the procedure for terminatin" a contractual tenancy. Section 13(6) speaks about institution of a suit or proceeding for the recovery of possession, on any of the grounds mentioned in sub-section (1) except the grounds mentioned in clauses (i) and (k) of that sub-section. This is of the greatest importance because we must not lost sight of the fact that subsection (6) which introduces for the first time a "notice of suit" itself provides that such a notice can be given only if one or more grounds mentioned in sub-section (1) except the prounds mentioned in clauses (i) and (k) exist and the existence of these ground? is a pre-condition for the filing of a suit or proceeding for the recovery of possession. A question thereupon arose as to what notice was contemplated under Section 13(6) of the said Act. Was it a notice to quit, or a notice of suit, or a combined notice to answer both the above purposes? This question amongst others was referred to a Special Bench in Suraya Properties Private Ltd. v. Bimalundu Nath Sarkar . I set out below the Question and its answer: "Question No. 2. What notice is contemplated under Section 13(6) of the West Bengal Premises Tenancy Act, 1956 is it a notice to suit or a notice if suit or a combined notice to answer both the above purposes? Is i, a notice, required in addition to a notice under Section 106 of the Transfer of Property Act or a notice in lieu of it? What, if any are its necessary elements or contents? Is it necessary to mention in it the ground or grounds of ejectment under the aforesaid Act on which the suit is to be brought ? Or, in other words need it be a notice of such grounds? Answer. A notice as contemplated under Section 13(6) isessentially notice of suit. Where it was necessary to serve a notice to quit under Section 106 of the Transfer of Property Act, it is still necessary to serve it. A notice under section 13(6) may be combined with a notice under Section 106 but the period of such combined notice shall not be less than a month expiring with a month of the tenancy. There is no prescribed form of such a notice. It is not necessary to mention in a notice under Section 13(6) the ground or grounds if ejectment for which a suit is to be instituted for recovery of possession. There is, however, nothing to prevent the landlord from setting out such ground in the notice. The notice, however, will not be a notice of such grounds." The answer is binding on us and indeed, it is binding of all division benches of this High Court until and unless set aside by the Supreme Court. It will be observed that the answer specifically lays down that there was no prescribed form for a notice under Section 13(6). It has, further been held that in a notice under Section 13 (6), the ground or grounds of ejectment for a suit instituted for recovery of possession need not be mentioned, It has also been held that there could be a combined notice under Section 106 of the Transfer of Property Act and Section 13(6) of the said Act. If, ' therefore, a notice under Section 13(6) is a notice of suit, the question arises as to what are the contents of a notice which will be considered a; a notice of suit Where, in such a notice, it is expressly mentioned that upon a non-compliance with it, a suit or proceeding will be instituted, there is no difficulty, because it is an express notice of the fact the a suit or proceeding is contemplated. Since, however there is no prescribed form for such a notice, no such express words are essential. In my opinion, the same principle should be applied at has been applied in respect of notice to quit given under Section 106 of the Transfer of Property Act Under that provision of law, the question arose as to what would be the form of a notice-to-quit. The object of a notice-to-quit is to terminate the contractual tenancy and the law lay down the period for which notice was to be given. Some Courts took the extreme view that there must be the utmost technical compliance with the provisions of S. 106. But the matter was set it rest by the Privy Council in Harihar Banerii v. Ramsashi Rov. 45 Ind App 222:(AIR 1918 PC 102). In that case, the plaintiffs alleged that they were the owners of certain lands in village Char Ram-krishtopur known as iama Nidhi Ram, which was in possession of the appellants is their tenants from year to year at in annual rent of Rs. 25 and that the tenancy had been determined by a notice to quit at the end of the Bengali year 1317 (April 11, 1911). They claimed possession. The defendants inter alia disputed the validity of the notice. What happened was that in the notice to quit, it war- Tientioned that the area of the land was 6 cottahs, and certain boundaries were given. It was admitted by the tenants that thev occupied an area of 2 highas 2 cottahs of land at a jama of Rs. 25 per year and it was urged that the notice was bad as it spoke of 6 cottahs and the boundary was disputed. Lord Atkinson delivering judgment said as follows: "To tenants who, like the principal defendants, were admittedly in possession if the entire jama and paid that rent, that must have been clear to demonstration but it is contended that all this clearness is obscured by the statement in the schedule, that the lands the possession of which is to be delivered up are one plot of bastu lands 6 cottahs in extent ......... The principal defendants knew perfectly well that a plot of 6 cottahs in extent is only a fraction, one-sixth or one-seventh, of the lands in the entire jama; they must presumably have known the law that a notice requiring a tenant to quit only a portion of the holding of which he was tenant was bad and ineffective. But the presence of the words "6 fottahs" in the schedule it was, in effect, contended, necessitates that the landlord should be presumed to have intended to serve a notice bad and ineffectual to his own knowledge rather than a valid and effectual one. and that the notice itself should be construed ut res magis pereat quam valeat instead of the contrary. No argument has been addressed to their Lordships and no authority produced to sho v that the principles of the above recited English cases are inapplicable to Indian cases. From the very nature of a notice to auit, which is merely the formal expression of the landlord's will that the tenancy his tenant shall terminate, it would prima facie appear that they are applicable.........In their Lordships' view the erroneous statement of the contents of the jama does not predominate over the description given of 't in the earlier portion of the notice to quit. They have not the slightest doubt that the principal defendants were perfectly well aware that the notice required the defendants, as the plaintiffs desired and intended that it should, to quit and deliver up possession of the entire jama for which they for years paid the rent of Rs 25.........Their Lordships are, therefore, clearly of opinion that the notice was a good notice to quit the holding in its entirety, whatever its area might be " Reference may also be made to a decision of R. C. Hitter, j. in Sudhansu Badini Debi v. Narayan Chandra, 48 Cal LJ 411. In that case, the learned Judge was deciding the validity of a notice to quit under the Transfer of Propertv Act. In the notice to quit, instead of saving that the tenant was to make over possession upon the expiry of the month of Agrehayan 1337, it called upon the tenant to vacate on the 1st of Pous l.?37. The suit had been dismissed on the ground that this was a bad notice to quit, not in conformity with the provisions of Section 106 of the Transfer of Property Act. In disagreeing with the verdict the learned Judge said as follows: 'In my judgment the lower appellate court has overlooked the principles formulated in the decision of the case, Ismail Khan Mahomed v. Jaigun Bibi, (1900) ILR 27 Cal 570 when Mr. Justice Banerjee and Mi. Justice Stevens following the observation of Lord Justice Lindley in the case of Sidebotham v. Holland (1894) 1 QB 378 said that the validity of a notice to quit, ought not to be determined on the splitting of a straw. In my judgment, therefore, the lower appellate court is wrong in holding that the notice in the present case is not a valid notice." 3. Before us, it is not disputed that a notice under Section 13(6) would be valid of the notice can be said to be a notice of suit by express words or necessary intendment. In fact, a Paragraph from the judgment of Bachawat J. in the above-mentioned Special Bench case is cited before us which runs as follows: "The notice under Section 13(6) is a notice of suit or proceeding. The notice sufficiently complies with the requirement of Section 13(6), if, by express words or necessary intendment, it conveys to the tenant conversant with the fact and circumstances of the case the information that the landlord intends to file a suit or proceeding for recovery of possession of the premises on any of the grounds mentioned in Section 13(1) except Section 13(1)(i) and (k) on the expiry of the period of the notice ^ notice which give.- this information is sufficient and it is not necessary that the notice should mention the particular ground or grounds on which the suit or proceeding will be instituted " 4. I shall now proceed to consider certain judgments of this Court explaining the provisions of the said Act. The first case cited before us is Subodh Chandra Sinha v. Santosh Kumai (1964) 68 Ca] WN 184 In that case, a notice dated November 24 1958 was served on the defendant tenant by the landlord plaintiff on November 25 1958 purporting to terminate the defendant's tenancy and asking him to quit and vacate the disputed premises on the expiry of the month December 1958. The exact wording of the notice had not been set out in the judgment, but it has been mentioned that the suit was on the ground of the plaintiff's reasonable requirement of the disputed premises for his own occupation and this ground was also stated in the notice. It was held that it was not a valid ground under Section 13(6) of the said Act. There is no mention in the said decision that the notice was served by a lawver on the contrary it seems to have been served by the landlord himself. The next case to be considered is (1965) 68 Cal WN 296. In that case also, the notice set out the ground that the plaintiff had purchased the suit property occupied by the tenant for her own occupation and accordingly she required possession of the demised premises reasonably for her own occupation. It was held that the mere mention of such a ground in the notice does not make it a valid notice of suit, although the position may well be different if Section 13(6) is referred to in the notice, as that section has ''obvious reference" to a proposed suit and may, in appropriate cases, well imply the landlord's intention to file the proposed suit. Mookerjee, J. said as follows: "We would accordingly, hold that the mere mention of the ground of ejectment, although that ground is a ground relevant for purposes of Section 13(6), would not make a mere notice to quit a notice of suit under the aforesaid section. In the above view, we must hold that the instant suit must fail for want of a proper notice under the above section, however much that is, even assuming that - it might have otherwise succeeded on the merits." The next case cited as Iswar Singh Kripal Singh and Co. v. Kiron Chandra Roy, (1969) 69 Cal WN 232. In that case, the notice ended with words intimating to the tenant that if after the expiry of its period, he continues to occupy the suit premises he will do so as a trespasser liable to pay damages or mesne profits, "till evicted in due course of law". It was held that the words "till evicted in due course of law" carried with it the necessary implication if the landlord' - intention to file an ejectment suit in case of non-comoliance on the tenant's part with the said notice. In the context of the ground of "reasonable require-ment". which was specifically stated in the notice, it was held that the words ''till you are evicted in due course of law" could have no other meaning than that the landlord intended t file a suit for ejectment on the said ground It was held that the notice contained within it at least by necessary implication, sufficient indication of the landlord's intention to file a suit for ejectment as contemplated under Section 13 (6) of the said Act 4A. The position may be summarised as follows: Under the Transfer of Property Art all that is required is a notice under Section 106 terminating the contractnit tenancy of the tenant In the case of a tenancy from month to month, it must be a 15 days notice endine with the last day of the month of tenancy No other ground is required for evicting a tenant As this operated harshly ^eainst the tenant? who are owine to a general shortage of accommodation, unable to make alternative arrangement for their residence protection is given by the Rent Control Arts At present, we have West Bengal Premises Tenancy Act, 1958 holding the field Under Section 13 (1) of the said Act protection is sriven to tenants from eviction but in a particular manner. It does not stop the tenancy being terminated, but states that no order or decree for recovery of possession shall be passed, unless there was in existence one or the other of eleven grounds mentioned in sub-section (1) of Section 13. In other words, if any of these grounds existed it was sufficient for the landlord, after terminating the tenancy of the tenant under the Transfer of Property Act to take proceedings culminating in an order or decree for recovery of possession of the demised premises Before he can successfully do so, there is another restriction imposed by sub-section (6) of Section 13-Under sub-section (6), apart from a notice to quit served under Section 106 of the Transfer of Property Act, the landlord has to serve a notice of suit unless the recovery of possession is asked for under clauses (i) and (k) of sub-section (1) of Section 13. Clause (i) is where the tenant himself has given notice to quit and clause (k) is where, subsequent to - the creation of the tenancy, the tenant agru in writing to give vacant possession but fails to do so. Sub-section (6) of Section 13 has now been construed by a Special Bench of this Court in (SB) (supra) t has laid down the following propositions: (1) A notice as contemplated under Section 13(6) is essentially a notice of suit (2) Is is a notice distinct from the notice to quit under Section 106 of the Transfer of Propertv Act. (3) Both the notices must be served be-fore the landlord can be permitted to evict the tenant, but the two may be combined and the period of such a combined notice shall not be less than a month pxpirino with the month of the tenancy (4) There is no nrescribed form of such a nofice (5) It is not necessary to mention in a notice under Section 13(6), the ground or grounds of eiectment but the landlord may set out such arounds although the notice will not be treated as a notice of such grounds in other words, in the course if the proceedings he may rely on other grounds which are ripen to him. 5. The decided cases including the Special Bench case mentioned above, make it abundantly clear that the notice under Section 13(6) is a "notice of suit" but it is not necessary to mention expressly in the notice that a suit will be brought if possession is not given. As lone as a tenant, familial with the facts of the case, can reasonably infer from the notice that such a suit or proceeding will be commenced ,"f possession is not given that is enough in other words the notice must be a notice of suit by express words or necessary intendment. Where it is expressly mentioned that a suit will be brought if possession is not given, there is nothing further to say. But what are the circumstances under which there will be a necessary intendment? Obviously, there are a number of circumstances which may give rise to the inference that a suit will be brought. Some of then have been referred to in the decisions mentioned above. It has been held that the mention of Section 13(6) is sufficient. It has further been held that the use of the words "till evicted in due course of law" is also quite sufficient. Thus, an immediate threat need not be contained in the letter. The expression of an intention that proceedings will be taken in future is quite enough. We must also carefully keep in mind the principle that such notices should not be interpreted by the splitting of straws, but we should consider as to what a person, quite familial with the circumstances, will infer from the words used and the surrounding circumstances Let us now come to the facts of the present case. Section 13 of the said Act mentions certain grounds which enable a landlord to obtain an order or decree for recovery of possession. If the landlord, as in the present case, goes to his lawyer and the lawyer says to the tenant that you must give possession on two grounds which are no more than clauses (a) and (f) of Sub-section (1) of Section 13, then would it be reasonable to infer that a tenant receiving such a notice would think that if he does- not comply with it a suit or proceeding will be brought to obtain a decree for possession? In my opinion, the inference is irresistible. As we have seen above, there are only two notices which art- relevant 'n such a case. One is under Section 106. for which no grounds are necessary, and the period for which is 15 days expiring with the end of the month of the tenancy The other notice is a notice under Section 13 (6). Under this provision itself, notice cannot be given except under the ground? mentioned in sub-section (1) of Section 13. except clauses (i) anrt (k). The period for which notice is to be given is one month and not 15 davs expirinp with the month of the tenancy. As has been held in the Special Bench case cited above the two notices may be combined, and in a combined notice the grounds may be set out and the period of such a combined notice is one month expiring with the month of the tenancy Now let us see whether on the facts of this case it could ever be doubted by the tenant that the notice given was a combined notice under Section 106 of the Transfer of Property Act and Section 13(6) of the said Act. Firstly, the two grounds given, have nothing to do with a notice under Section 106, but are two grounds upon which a notice under Section 13(6) can be given. In other words, these grounds are only referable to a notice under Section 13(6) Secondly, the period for which notice is given is not 15 davs. but a complete month expiring with the month if the tenancy. It is said that a notice given under Section 106 would also have to expire on the next month of tenancy, but it might have been given much later. Thirdly, the fact that the letter was given by a lawyer and the tenant was being asked to vacate on two grounds which entitled the landlord to institute legal proceedings, ending in an order or decree for possession, would convey to a man of ordinary intelligence that a failure to comply would mean that such proceedings will be taken to obtain such an order or decree. Fourthly, it must be remembered that such a notice is not to be construed in a technical manner, but one should consider as to what message it was intended to convey and would convey, to a person familiar with the facts of the case. It is well known that under the Rent Control laws it has become extremely difficult and certainly unusual for the landlord to obtain recovery of possession except by legal proceedings Thus, if the notice in question was not a notice of suit, what was it? Was it a mere step in negotiation with the tenant, or a mere attempt to persuade him to give up possession? To my mind, these are not justifiable inferences. The law at present is that in cases governed by the said Act, even if the tenancy is contractual, and the tenant is liable to deliver up possession under the terms of the contract and/or on a valid notice served under Section 106 of the Transfer of Property Act the landlord cannot recover possession in terms of the contract or by reason of the notice under Section 106 of the Transfer of Property Act, except when certain grounds exist which are enumerated in Section 13(1) of the said Act. If such grounds existed, the landlord Is entitled to commence proceedings in a court of law and get a decree for possession against the tenant. Where the landlord in effect says to the tenant through his lawyer that - "look here, I am asking you to give up possession and informing you that two grounds exist whereby, in case you do not give possession, I can bring proceedings culminating in a decree for possession." - It is but reasonable to infer that it conveys to the tenant the information that if he did not give up possession such proceedings would be brought and the landlord would proceed to obtain a decree for possession, whereby he could evict the tenant in due course of law. 6. Apart from this, there exists in this particular case another ground, namely that previous to the present action the landlord brought another case against the tenant which failed on the ground that the notice to quit given was bad. Thereafter, when another notice is given, it would be an ordinary inference for the tenant to draw that if he failed to comply with it, another suit will be instituted. 7. In my opinion, if P. N. Mookerjee J. intended to lay down in (1964) 68 Cal WN 184 or in (1964) 68 Cal WN 296 or in (1965) 69 Cal WN 232 that even where grounds for enabling an order or decree for recovery of possession under Section 13(1) are set out in a notice, it will not amount to a notice of suit, unless (i) the word "suit" or "proceeding" is mentioned, or (ii) Section 13(6) is expressly referred to or (iii) the notice intimates to the tenant that if after expiry of the period of the notice the tenant continues to occupy the suit premises, he will do so as trespasser, and be liable to pay damages or mesne profits till evicted in due course of law, then we must hold that in so far as these cases lay down those propositions they have not been correctly decided. 8. In (1964) 68 Cal WN 296 it has been said: "A mere notice to quit will not be enough " 9. We respectfully agree that this is a correct statement of the law. Mookerjee J. appears to have taken the view in the cases cited above that a notice may be a valid notice under Section 13(6) even if there is no mentim of the word 'suit' or 'proceeding so long as it carries with it the necessary implication of the landlord's intention to file an ejectment suit in case of non-compliance on the tenant's part with the notice. That is a view with which again, we agree. But, when a combined notice is given, the disagreement is upon the question as to what will be sufficient to convey to the tenant, the information that it is also a notice of suit under Section 13(6). In my opinion, the facts should be such as will make a tenant, who is acquainted with all the facts of the case, come to the reasonable inference that if he does not comply with notice, a suit will be instituted. No technicality should be introduced here. Since everybody seem? to be agreed that there need not be an express mention of the fact that a suit will be brought, all we have got to see is as to whether the information is conveyed to the tenant that if he does not comply with the notice, the landlord will institute legal proceedings. In my opinion, where the landlord conveys the information to the tenant through his lawyer that his contractual tenancy is determined, that he should give up possession, and that he has no protection under the Rent Control Act because the landlord has got grounds for obtaining a decree for possession, it would be a reasonable inference for him to draw that if there is non-compliance, the landlord will proceed to take proceedings to obtain an order or decree for possession. Any other interpreation would be highly technical and constitute a splitting of straws. 10. That being so, I will proceed to answer the question asked In the following manner: Questions 1. In a consolidated notice under the Transfer of Property Act (Sections 106 and 111) and Section 13(6) of the West Bengal Premises. Tenancy Act, 1956 is it necessary to make a statement that a suit will be filed if the notice is not complied with? 2. Where a notice is given setting out any of the grounds in section 13 of the West Bengal Premises Tenancy Act, 1956 and particularly if it is written by a lawyer on behalf of the landlord, is it not a sufficient compliance with the provisions of Section 13(6), although there is no express statement that a suit will be filed in defaut of compliance with the notice? 3. Is the notice to quit in this case a legally valid notice?

Author: Sinha

Abdul Gani vs Md. Israil And Ors. on 19 June, 1968

Calcutta High Court

JUDGMENT Abdur Rahman, J. 1. Kotamma, a Brahmin girl, became a widow while she was very young. When she grew older, she fell into evil ways and had two illegitimate children one of whom Namburi Subbamma is the present plaintiff and the other Sundararamayya is the seventh defendant in the present litigation. Kotamma, died on the 12th October, 1919 and left some stridhanam property at the time of her death which forms the subject matter of the present suit. 2. The property left by Kotamma, was sold by her son Sundararamayya to six defendants (defendants 1 to 6) under several sale deeds. Namburi Subbamma brought a suit out of which the present appeals arise for the recovery of their possession. If the children were not illegitimate, Kotamma's stridhanam property would, under the ordinary rule of Hindu law devolve on her daughter Namburi Subbamma in preference to her son. But it was contended that as Kotamma was an outcaste and lived in a degraded condition, the plaintiff would be no heir to her mother and the seventh defendant would succeed to her property (paragraph 5 of the written statement). This plea did not prevail and the suit was decreed by the District Munsif of Kanigiri. Defendants 4 to 6 did not appeal against the decree and the decree as regards the properties purchased by them has become final. Two appeals were preferred against that decree to the Court of the Subordinate Judge at Nellore one by the first defendant and the other by the second and third defendants (A.S. Nos. 209 and 210 of 1934). With these appeals, the defendants filed two petitions for permission to amend their written statements by including an allegation that there were other heirs of Kotamma in the legitimate line who would take precedence over her illegitimate daughter in respect of succession to Kotamma's stridhanam properties. These were accepted by the learned Subordinate Judge on the ground that it was for the plaintiff to establish her title to the property and that it would not be enough for her to show merely that she bad a better title than that of the defendants. But he overlooked the important fact that the plea that was being attempted to be advanced by these applications in his Court was not only a new one but inconsistent with the allegations contained in the written statements. Mere delay would not have been a ground for refusing an amendment; but when the amendment was being proposed with the object of introducing an entirely new and inconsistent case, it could not have been possibly allowed. It is indisputable that leave to amend a pleading is more or less a discretionary matter and the power to grant leave ought to be liberally exercised. Nor can it be disputed that once a discretion has been exercised by a Court in favour of a party, the appellate Court would not lightly interfere with that discretion; but when the Court disregards the first principles and does something which is wholly unjustifiable, it is equally the duty of an appellate Court to interfere and set the wrong right. The defendants, in their written statements, as observed by me before, came to Court with the allegation that the 7th defendant was the heir to his mother's stridhanam properties and not the plaintiff. It might have been possible for them to raise an inconsistent or an alternative case when they filed their written statements in the beginning; but not having done so, they could not be either permitted to advance new positions at the time of arguments before the trial Court or to ask for their written statements to be amended before the lower appellate Court so as to enable them to plead that although the 7th defendant was not entitled to deal with his mother's property, yet there was somebody else in the legitimate line who would take precedence over both the plaintiff and the 7th defendant and the plaintiff's suit must for that reason fail. There is no reference in the whole of the written statements to the existence of any person in the legitimate line and this plea was undoubtedly inconsistent with the one raised by these defendants that the 7th defendant was the sole owner of his mother's stridhanam property. Moreover, the person who was alleged to be in existence in the legitimate line was not impleaded as a party to the suit but the defendants were authorised by the Court to show that such a person did exist in fact and would take precedence in law over the plaintiff. This was not quite the right thing to do and is bound to raise further complications and increase multiplicity of proceedings. Since the order passed by the lower appellate Court permitting the defendants to set up a new and inconsistent case in appeal cannot be sustained, it must be quashed. 3. The next question to decide is whether the plaintiff was entitled to succeed to her mother's stridhanam properties in spite of her illegitimacy in preference to the 7th defendant who Subbayya was also, as stated before, an illegitimate son. There is no chandrayya competition in this case between an illegitimate daughter and an illegitimate son in regard to the stridhanam property of the mother. The decision by a Division Bench of this Court in Arunagiri Mudali v. Ranganayaki Ammal (1897) I.L.R. 21 Mad. 40, is a clear authority for the proposition that the illegitimate daughters were entitled to succeed to their mother's property in preference to an illegitimate son of their mother. The only distinguishing feature of that case was that the putative father of the illegitimate son was different from that of the illegitimate daughters but the fact that the illegitimate daughters and the illegitimate son were the offspring of two different persons is, in my opinion, immaterial. It was contended that an illegitimate daughter was entitled to succeed to her mother's stridhanam property amongst Sudras alone and that no decision has gone to the extent of making the same rule applicable to the illegitimate daughters of a Brahmin degraded woman as Kotamma was. But I see nothing in principle to draw any distinction between the status of degraded women whether they belonged to one caste or the other--at least so far as the capacity of their illegitimate daughters to inherit their stridhanam is concerned. It may be that the illegitimate sons in the higher classes do not inherit their father's estate as heirs and that the illegitimate son of a Sudra may, in certain circumstances, do so; but this is surely no ground for holding that an illegitimate daughter in the three higher classes may be deprived of her mother's stridhanam and that an illegitimate son may be entitled to succeed to that property in preference to his unfortunate sisters. The reason which existed for permitting the legitimate daughters to take their mother's stridhanam property in preference to her legitimate sons applies with equal, if not greater, force to illegitimate daughters when they are competing with illegitimate sons. I am drawing support in this conclusion from the decision of a Bench of this Court in Nammaiya Chetty v. Thiruvengadathan Chetty (1912) 24 M.L.J. 223, where the degraded woman was a Vysia by caste. It is true that the observations in Dundappa v. Bhitnawa (1920) I.L.R. 45 Bom. 557, were in respect of Sudras and were guarded; but there is nothing in that decision to suggest that a different rule of law would have been applicable if the woman was not a Sudra by caste. The observations in Meenakshi Ammal v. Ramaswami Josier (1937) 1 M.L.J. 28, and Meenakshi v. Murugayya (1940) 1 M.L.J. 288 : I.L.R. (1940) Mad. 739, are general and do not confine the right of illegitimate daughters to succeed to their mothers' stridhanam properties amongst Sudras alone. There are certain obiter dicta in Meenakshi v. Muniandi Panikkan (1914) 27 M.L.J. 353 : I.L.R. 38 Mad. 1144, but since the competition in this case is between illegitimate children inter se, the observations in that decision do not call for any comment. Had it been necessary for me to consider the case attempted to be put forward on behalf of the defendants before the lower appellate Court in their applications for leave to amend their written statements, the statement of law in Meenakshi v. Muniandi Panikkan (1914) 27 M.L.J. 353 : I.L.R. 38 Mad. 1144, would have to be closely examined. But in view of the order granting the amendment having been set aside, the question does not arise for decision. 4. For the above reasons, the appeal must be accepted and the decision of the first Court restored. The plaintiff will be entitled to her costs throughout, half from each set of respondents in each case. The court-fee to be paid on the appeals will be realised from the respondent in each appeal in regard to the items in each appeal--the valuation in the memorandum in appeal being incorrect.

Author: A Rahman

Namburi Subbayya And Anr. vs Ghaganti Chandrayya (Deceased) ... on 18 April, 1941

Madras High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM Bail Appl No. 325 of 2008() 1. P.K. HAMZA, S/O. IBRAHIM, ... Petitioner Vs 1. STATE OF KERALA, ... Respondent For Petitioner :SRI.SOJAN MICHEAL For Respondent : No Appearance The Hon'ble MR. Justice R.BASANT Dated :22/01/2008 O R D E R R.BASANT, J ------------------------------------ B.A.No.325 of 2008 ------------------------------------- Dated this the 22nd day of January, 2008 ORDER Application for regular bail. Petitioner is the 2nd accused in a crime registered initially under Sections 392 and 384 I.P.C. Subsequently allegations under Sections 354 and 376 r/w 511 I.P.C have also been included. The allegation under Section 392 I.P.C has subsequently been deleted, submits the learned Public Prosecutor. 2. It is a long story. The defacto complainant is a married woman having children. Her husband is employed abroad. There was an agreement to sell the property of the defacto complainant to the 2nd accused. The 1st accused is distantly related to the defacto complainant. There was a demand that the defacto complainant must part with money to accused 1 and 2. They allegedly threatened her that they shall reveal information about the alleged illicit relationships of the defacto complainant. They further threatened that the husband of the defacto complainant abroad shall be harmed. Under these threatens, amounts were extracted from her. She was found missing. Her mother filed a  B.A.No.325 of 2008 2 complaint and a crime was registered under the caption `woman missing'. She subsequently appeared. She then narrated the misdeeds of accused 1 and 2. On that the crime was initially registered under Sections 384 and 392 I.P.C. In that F.I statement, no allegation of indecent assault or attempt to commit rape was ever made. But in the course of the investigation in the further statement given by her, she came out with details of the alleged indecent assault and attempts to commit rape on her by the accused persons. Accordingly the said sections were included. The petitioner was arrested on 05.01.2008. He continues in custody from that date. 3. The learned counsel for the petitioner submits that the petitioner is innocent and that the petitioner may be granted regular bail he having continued in custody from 05.01.08. 4. The case diary has been placed before me. I have perused the case diary. The learned Public Prosecutor after discussions at the Bar submits fairly that the State has no objection against grant of regular bail to the petitioner at this stage subject to appropriate terms and conditions. I am satisfied that the petitioner can now be enlarged on bail subject to appropriate terms and conditions. B.A.No.325 of 2008 3 5. In the result, this application is allowed. The petitioner shall be released on bail on the following terms and conditions. i) The petitioner shall execute a bond for Rs.50,000/- (Rupees Fifty thousand only) with two solvent sureties each for the like sum to the satisfaction of the learned Magistrate; ii) The petitioner shall make himself available for interrogation before the Investigating Officer between 10 a.m and 12 noon on all Mondays and Fridays for a period of two months and thereafter as and when directed by the Investigating Officer in writing to do so. (R.BASANT, JUDGE) rtr/-

P.K. Hamza vs State Of Kerala on 22 January, 2008

Kerala High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM Bail Appl..No. 5132 of 2009() 1. MOHANAN ... Petitioner Vs 1. STATE OF KERALA ... Respondent For Petitioner :SRI.K.HARILAL For Respondent :PUBLIC PROSECUTOR The Hon'ble MR. Justice K.T.SANKARAN Dated :10/09/2009 O R D E R K.T.SANKARAN, J. --------------------------------------------- B.A.No.5132 of 2009 --------------------------------------------- Dated this the 10th day of September, 2009 ORDER This is an application for bail under Section 439 of the Code of Criminal Procedure. The petitioners are accused Nos.2 and 3 in Crime No.32 of 2009 of Haripad Police Station. 2. The offences alleged against the petitioners are under Sections 8(1) & (2) and 55(a) & (g) of the Abkari Act. 3. The prosecution case is that on 17.1.2009, the accused persons were found manufacturing arrack and they were found in possession of 70 litres of arrack so manufactured. The petitioners surrendered before court on 17.7.2009 and they were remanded to judicial custody. 4. Taking into account the facts and circumstances of the case, the duration of the judicial custody undergone by the petitioners, the nature of the offence and the present stage of investigation, I am of the view that bail can be granted to the petitioners. BA No.5132 /2009 2 The petitioners shall be released on bail on their executing bond for Rs.50,000/- each with two solvent sureties for the like amount to the satisfaction of the Judicial Magistrate of the First Class-I, Haripad, subject to the following conditions: a) The petitioners shall report before the investigating officer between 9 A.M. and 11 A.M. on all Mondays, till the final report is filed or until further orders; b) The petitioners shall appear before the investigating officer for interrogation as and when required; c) The petitioners shall not try to influence the prosecution witnesses or tamper with the evidence; d) The petitioners shall not commit any offence or indulge in any prejudicial activity while on bail; e) In case of breach of any of the conditions mentioned above, the bail shall be liable to be cancelled. The Bail Application is allowed as above. K.T.SANKARAN, JUDGE csl 

Mohanan vs State Of Kerala on 10 September, 2009

Kerala High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 9011 of 2004(W) 1. THRISSUR URBAN CO-OPERATIVE BANK ... Petitioner Vs 1. THE KERAL CO-OPERATIVE TRIBUNAL, ... Respondent 2. SEBASTIAN, SON OF KUNNATH THOMAS, 3. SOPHY, WIFE OF KUNNATH SEBASTIAN, For Petitioner :SRI.P.R.VENKETESH For Respondent : No Appearance The Hon'ble MR. Justice C.N.RAMACHANDRAN NAIR Dated :29/07/2009 O R D E R C.N.RAMACHANDRAN NAIR, J. .................................................................... W.P.(C) No.9011 of 2004 .................................................................... Dated this the 29th day of July, 2009. JUDGMENT The petitioner is a Co-operative Bank challenging the order of the Co-operative Tribunal which has modified an Arbitration Award passed against respondents 2 and 3. Respondents 2 and 3 availed a loan of Rs.1 lakh and on application by the Bank, Arbitration Award was passed authorising the Bank to recover the loan amount with accrued arrears and interest at 22% p.a. from date of suit till date of realisation of the entire amount. The Tribunal in appeal modified the award reducing rate of interest. It is against this part of the award the Bank has filed this W.P.(C). However, no interim order was passed by this court and consequently the liability would have been settled in terms of the monthly instalments of Rs.25,000/- granted by the Co-operative Tribunal in favour of respondents 2 and 3. In any case I notice that reduction in interest is granted from date of suit till date of realisation. In other words, contract rate of interest was upheld upto date of filing the suit. I do not find any ground to interfere with the order of the Co-operative Tribunal. W.P.(C) is accordingly dismissed. C.N.RAMACHANDRAN NAIR Judge pms 

Thrissur Urban Co-Operative Bank vs The Keral Co-Operative Tribunal on 29 July, 2009

Kerala High Court

Gujarat High Court Case Information System Print CR.MA/1795/2011 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 1795 of 2011 In CRIMINAL APPEAL No. 82 of 2006 ========================================================= HITESH KALUBHAI - Applicant(s) Versus STATE OF GUJARAT & 1 - Respondent(s) ========================================================= Appearance : THROUGH JAIL for Applicant(s) : 1, MR JK SHAH, APP for Respondent(s) : 1, None for Respondent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE RAVI R.TRIPATHI and HONOURABLE MR.JUSTICE P.P.BHATT Date : 15/03/2011 ORAL ORDER(Per : HONOURABLE MR.JUSTICE RAVI R.TRIPATHI) At the request of learned APP Mr.Shah, the matter is adjourned to 24.03.2011. Learned Amicus Curiae Mr.Panchal has no objection to the same. (Ravi R.Tripathi, J.) (P.P.Bhatt, J.) *Shitole     Top

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

Hitesh vs State on 15 March, 2011

Gujarat High Court

ORDER Amareshwar Sahay, J. 1. In this writ petition the petitioner has challenged the order as contained in Annexure 9 to the writ petition passed by the Revisional Authority-cum-Secretary, Ministry of Forest and Environment, Govt. of Jharkhand, Ranchi dated 24.4.2001 whereby the Revisional Authority set-aside the order of the Appel-late Authority-cum-Deputy Commissioner directing the truck No. DL-IGB- 2311 together with Katha weighing 210 K.G. were ordered to be confiscated. 2. The main ground for challenge of the order of the Revisional Authority is that whole confiscation proceeding was vitiated as the seizure of the truck in question was made by the Forest Guard who was not authorized under the law to confiscate any vehicle and therefore, the entire confiscation proceeding was ab initio. 3. The submission of the learned counsel for the petitioner is devoid of any merit in view of the decision of the Full Bench in the case of Bijay Krishna Sahay v. State of Bihar and Ors., reported in 1998 (2) East Cr C 359 (Pat), wherein, the Full Bench has held that illegality of search and seizure will have no bearing on the confiscation proceeding and the criminal case. Neither the criminal cases will fail nor would the confiscation proceeding become non maintainable even if search and seizure are illegal. 4. In view of the decision of the Full Bench referred to above I do not find any merit in this writ petition. It is accordingly dismissed.

Author: A Sahay

Shatrughan Singhal vs State Of Jharkhand And Ors. on 6 January, 2004

Jharkhand High Court

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 21/01/2011 CORAM THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH CRL.A.(MD)No. 465 of 2010 Mrs.Kamalam ... Appellant / Complainant Vs C.Manivannan ... Respondent / Accused Appeal under Section 378(4) Cr.P.C. against the order of acquittal under Section 256 of Cr.P.C., passed in S.T.C.No. 592 of 2004 dated 09.04.2009 on the file of the learned Judicial Magistrate No.III, Madurai. *** !For Appellant ... Mr.G.Nagalingam ^For Respondent ... Mr.G.R.Swaminathan :JUDGMENT This appeal is directed against the order of acquittal under Section 256 of Cr.P.C., dated 09.04.2009 passed in S.T.C.No.592 of 2004 on the file of the learned Judicial Magistrate No.III, Madurai. 2. Heard Mr.G.Nagalingam, learned counsel appearing for the appellant and Mr.G.R.Swaminathan, learned counsel appearing for the respondent. 3. The appellant is the complainant before the Lower Court in a private complaint and the respondent is the accused. The complaint filed by the complainant was dismissed by the learned Judicial Magistrate No.III, Madurai, under Section 256 (1) of Cr.P.C., owing to the absence of the complainant on the appointed day. The present Appeal has been filed by the legal representatives of the deceased complainant against the said order. 4. The learned counsel appearing for the appellant would submit in his argument that the complainant was dead and it was informed to the Court sufficiently earlier and the Lower Court has not given any opportunity to the legal representatives to implead themselves to step into the shoes of the complaint and to prosecute the said complaint against the respondent. He would also submit that the Lower Court instead had posted the case and found that the complainant was absent and it was also noted by the Lower Court that the complainant was dead and no steps were taken for a long period and called the complainant and found him absent and had dismissed the complaint and acquitted the respondent, which is ex-facie illegal. He would further submit in his argument that when the complainant is dead without impleading the legal heirs of the complainant, there would not be any complainant for attracting the provisions of Section 256 of Cr.P.C., to dismiss the complaint or to acquit the accused. He would bring it to the notice of this Court yet another Judgement of the Hon'ble Apex Court made in Associated Cement Co. Ltd., Vs. Keshvanand reported in AIR 1998 SCC 596 for the principle that the provision of Section 256 of Cr.P.C., should have been applied by the learned Magistrate only when the presence of the complainant was imminent for the progress of the case. He would further submit in his argument that in this case, both the principles have not been followed by the Lower Court and the Judgements of this Court made in AV. Balu Vs. K.Jeyakumar reported in (2007) 1 MLJ (Crl) 718 will be applicable and the order passed by the Lower Court has to be set aside and revised and the Appeal may be allowed. 5. The learned counsel appearing for the respondent would submit his argument that the petitioners herein have not initiated any steps to implead themselves before the Lower Court, on the death of the complainant and without other way to proceed with the case, the Lower Court had no other way except to acquit the accused. He would further submit that the arguments advanced by the learned counsel appearing for the appellant are not applicable to the present case since there was no complainant and the accusation against the respondent became abated. Therefore, he would request the Court not to entertain the appeal but to dismiss the same. 6. I have given anxious consideration to the arguments advanced on either side. 7. The undisputed facts are that the complainant before the Lower Court had presented the complaint under Section 138 of the Negotiable Instrument Act against the respondent and it was taken on file and during the pendency of the said complaint before the Lower Court, the complainant died and it was also promptly reported before the Lower Court. However, the legal representatives were not impleaded to prosecute the complaint. The Lower Court had posted the case on 09.04.2009 and on that day, it is found that no steps were taken for impleadment of the legal representatives and the complainant was also absent and therefore, it had utilised the provisions of Section 256 of Cr.P.C., and acquitted the accused. 8. The point for consideration before this Court is whether the acquittal of the respondent by the Lower Court is correct? 9. Admittedly the complainant died long back and there was no complainant as on 09.04.2009. The complaint was not dismissed on the ground that the accusation against the respondent was abated for not impleading the legal representatives of the complainant. When there was no complainant, since he was died and no legal representatives were impleaded, how the Lower Court had applied the provisions applicable to a defaulted complainant. However, the Lower Court had dismissed the claim of the complainant on the absence of the complainant under Section 256 of Cr.P.C. 10. It is the dictum laid down by the Hon'ble Apex Court in Associated Cement Co. Ltd., Vs. Keshvanand as reported in AIR 1998 SCC 596, would run in the relevant passage as follows: ''Reading the Section in its entirety would reveal that two constraints are imposed on the Court for exercising the power under the Section. First is, if the Court thinks that in a situation it is proper to adjourn the hearing then the Magistrate shall not acquit the accused. Second is, when the Magistrate considers that personal attendance of the complainant is not necessary on that day the Magistrate has the power to dispense with his attendance and proceed with the case. When the Court notices that the complainant is absent on a particular day the Court must consider whether personal attendance of the complainant is essential on that day for the progress of the case and also whether the situation does not justify the case being adjourned to another date due to any other reason. If the situation does not justify the case being adjourned the Court is free to dismiss the complaint and acquit the accused. But if the presence of the complainant on that day was quite unnecessary then resorting to the step of axing down the complaint may not be a proper exercise of the power envisaged in the Section. The discretion must, therefore, be exercised judicially and fairly without impairing the cause of administration of criminal justice.'' In the said Judgement, it has been categorically pointed out that the Magistrate has to exercise the provisions under Section 256 of Cr.P.C., only when the presence of the complainant was imminent. As far as this case is concerned, there was no complainant since he was dead. The Magistrate has not applied his mind to see that the provisions of Section 256 of Cr.P.C., would not be applicable when there is no complainant. However, he has found that the complainant was called absent and passed a mechanical order under Section 256 of Cr.P.C. Therefore, it has become necessary for this Court to set aside the order passed by the learned Judicial Magistrate No.III, Madurai, in S.T.C.No. 592 of 2004, dated 09.04.2009. 11. Accordingly, the order passed by the learned Judicial Magistrate No.III, Madurai, in S.T.C.No. 592 of 2004, dated 09.04.2009, is set aside and the Appeal is allowed. Consequently, the learned Judicial Magistrate No.III, Madurai, is directed to restore the complaint on file to proceed with the case in accordance with law after recording the impleadment of the appellant herein as legal representatives of the complainant and permit her to prosecute the said complaint. vsg To The Judicial Magistrate No.III Madurai

Mrs.Kamalam vs C.Manivannan on 21 January, 2011

Madras High Court

Court No. - 39 Case :- WRIT - C No. - 66404 of 2009 Petitioner :- Sri Bhoop Singh Smriti Mahila Maha Vidyalaya & Anr. Respondent :- State Of U.P. & Others Petitioner Counsel :- Ajay Vikram Yadav Respondent Counsel :- C.S.C.,Sanjay Kr. Singh Hon'ble Dilip Gupta,J. Learned Standing Counsel appears for respondent no.1 while Sri Sanjay Kumar Singh appears for respondent nos.2, 3 and 4. They pray for and are granted three weeks' time to file the counter affidavit. Rejoinder affidavit, if any, may be filed within a week thereafter. List this petition for admission/hearing immediately after the expiry of the aforesaid period. Order Date :- 11.1.2010 GS

Sri Bhoop Singh Smriti Mahila Maha ... vs State Of U.P. & Others on 11 January, 2010

Allahabad High Court

Gujarat High Court Case Information System Print SCA/15857/2010 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 15857 of 2010 ========================================================= THE PANCHMAHAL DISTRICT CO-OPERATIVE BANK LTD - Petitioner(s) Versus SHAILENDRAKUMAR RASIKLAL SHAH & 2 - Respondent(s) ========================================================= Appearance : MR SUNIL S JOSHI for Petitioner(s) : 1, None for Respondent(s) : 1 - 3. ========================================================= CORAM : HONOURABLE MR.JUSTICE K.A.PUJ Date : 13/12/2010 ORAL ORDER Notice returnable on 28.12.2010. (K. A. PUJ, J.) kks     Top

Author: K.A.Puj,&Nbsp;

The vs Shailendrakumar on 13 December, 2010

Gujarat High Court

Gujarat High Court Case Information System Print SCA/8231/2010 2/ 2 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 8231 of 2010 ========================================= TABASSUM SHAUKATALI SAIYED Versus STATE OF GUJARAT AND OTHERS =========================================Appearance : MR GAJENDRA P BAGHEL for the Petitioner MS MANISHA NARSINGHANI, ASSTT GOVERNMENT PLEADER for Respondent(s) : 1, NOTICE SERVED BY DS for Respondent(s) : 2 - 3. ========================================= CORAM : HONOURABLE MR.JUSTICE RAVI R.TRIPATHI Date : 06/09/2010 ORAL ORDER1. Heard learned advocate Mr. Baghel for the petitioner. Fact that the compassionate appointment is asked in 2010, on the ground that the father of the petitioner died in 1990. By any standard, the case of the petitioner cannot be considered for grant of compassionate appointment. It is settled position of law that if a family could survive for long 20 years without any compassionate appointment, the object of granting compassionate appointment cannot be said to be surviving. 2. Ms. Manisha Narsinghani, learned Assistant Government Pleader, pointed out a decision rendered in the case of State of J & K and others Vs. Sajad Ahmed Mir, reported in (2006) 5 SCC 766, relevant para 11 of the same reads as under:- 11. We may also observe that when the Division Bench of the High Court was considering the case of the applicant holding that he had sought compassion , the Bench ought to have considered the larger issue as well and it is that such an appointment is an exception to the general rule. Normally, an employment in the Government or other public sectors should be open to all eligible candidates who can come forward to apply and compete with each other. It is in consonance with Article 14 of the Constitution. On the basis of competitive merits, an appointment should be made to public office. This general rule should not be departed from except where compelling circumstances demand, such as, death of the sole breadwinner and likelihood of the family suffering because of the setback. Once it is proved that in spite of the death of the breadwinner, the family survived and substantial period is over, there is no necessity to say goodbye to the normal rule of appointment and to show favour to one at the cost of the interests of several others ignoring the mandate of Article 14 of the Constitution. 3. Therefore, this petition is found without any substance and the same is dismissed. Notice is discharged. (RAVI R.TRIPATHI, J.) omkar     Top

Author: Ravi R.Tripathi,&Nbsp;

Appearance vs Unknown on 6 September, 2010

Gujarat High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM Crl.MC.No. 233 of 2010() 1. ANOOP, S/O.KARTHIKEYAN, ... Petitioner 2. BOBBY, S/O.VIJAYAN, 3. JAYAKUMAR, S/O.DIVAKARAN PILLAI, 4. ANIL THOMAS, S/O.THOMAS, 5. UNNIKRISHNAN, S/O.BALAKRISHNAN, 6. SREENI, S/O.MURALI, 7. SURESH, S/O.CHAKRAPANI, Vs 1. STATE OF KERALA, ... Respondent 2. MANEESH, S/O.RAJU, For Petitioner :SRI.C.P.PEETHAMBARAN For Respondent :SRI.MANOJ B.MENON The Hon'ble MR. Justice P.BHAVADASAN Dated :11/02/2010 O R D E R P.BHAVADASAN, J. --------------------------------- Crl.M.C.No.233 OF 2010 ---------------------------------- Dated this the 11th day of February, 2010 O R D E R ~~~~~~~ This is a petition filed under Section 482 of the Code of Criminal Procedure seeking to have all further proceeding in C.C.No.375/2009 pending before the Judicial First Class Magistrate Court-II, Peermade quashed. 2. Petitioners are accused in Crime No.304/2009 of Kumily Police Station for having committed offence punishable under Section 379 read with Section 34 of the Indian Penal Code. The allegation is that on 26.7.2009 they trespassed into the public area of Elan Hills Resort and removed a fancy light worth Rs.2,000/-. On the basis of the complaint given by the defacto complainant, the crime was lodged. 3. It is unnecessary to go into further details of the case in the light of the manner in which this petition is proposed to be disposed of. Crl.M.C.No.233/2010 2 4. It is pointed out that a compounding petition had been filed before the court below. Since the value of the article was more than the permitted value, that compounding petition was rejected. Now, the petitioner pointed out that the value is much less than the permitted value and therefore, it becomes compoundable. Even otherwise, since the parties have settled their disputes, it is waste of time and it is unnecessary to conduct the trial of the case. 5. In the light of the decisions in Madan Mohan Abbot v. State of Punjab (2008(3) KLT 19 SC) and Manoj Sharma v. State (2008(4) KLT 417), no purpose will be served by continuing the proceedings in the above said crime. Since the parties have settled their disputes and the complainant has no further grievance in the matter, it is only proper that the proceedings are given a quietus.  Crl.M.C.No.233/2010 3 In the result, this petition is allowed and the proceedings in C.C.No.375/2009, pending before the Judicial First Class Magistrate Court-II, Peermade, shall stand quashed and all further proceedings shall stand dropped. (P.BHAVADASAN, JUDGE) ps 

Anoop vs State Of Kerala on 11 February, 2010

Kerala High Court

[Section 1] [Complete Act]

Central Government Act

Court No. - 50 Case :- CRIMINAL REVISION No. - 2878 of 2010 Petitioner :- S.P. Ojha & Another Respondent :- State Of U.P. & Another Petitioner Counsel :- Anoop Trivedi Respondent Counsel :- Govt. Advocate Hon'ble Ashok Kumar Roopanwal,J. Mr. Anoop Trivedi, learned counsel for the revisionists and Mr. S.F.A. Naqvi for the opposite side are present. Put up on 5.8.10 as a fresh case. Till 5.8.10, no coercive measure shall be taken against the revisionists. Order Date :- 30.7.2010 T. Sinha

S.P. Ojha & Another vs State Of U.P. & Another on 30 July, 2010

Allahabad High Court

SBCWP No. 232/2010. Mohammed Hussain Vs. State of Rajasthan & Ors. [ 1 ] 125 S.B. CIVIL WRIT PETITION NO. 232/2010. Mohammed Hussain Vs. State of Rajasthan & Ors. .. Date of Order :: 3rd November 2011. HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr. D.K. Gaur, for the petitioner. Ms. Pratishtha Dave, G.C., for the respondents Nos. 1 to 3. Mr. S.P. Sharma, for the respondent No. 4. <<>> BY THE COURT: The petitioner, who retired from the services of the Municipal Board, Bhadra from the post of Lower Division Clerk on 31.05.1999, has filed this writ petition stating the grievance that after retirement, the respondents did not make complete payment of retiral benefits to him and certain payments were made in installments and ultimately, the remaining amount of retiral benefits was paid on 01.07.2004 but then, the respondents failed to make him payment of interest to the tune of Rs. 54,828/- for such delayed payment. The petitioner has further pointed out that he made the representations for making of such payment of interest whereupon, the orders were issued to the incumbents who were held responsible for different components of interest for the period they were holding the post of Executive Officer. The petitioner has stated the grievance that several times, the communications have been issued to such incumbents for making payment but he has been deprived of the due amount of interest on the ground that the respondents have not received the payment from the concerned officers. SBCWP No. 232/2010. Mohammed Hussain Vs. State of Rajasthan & Ors. [ 2 ] The stand of the respondents Nos. 1 to 3 in their reply has essentially been that three of the incumbents had made the payment of interest and only an amount of Rs. 28,902/- liable to be paid by one Shri Prithvi Raj Jakhar has not been received and hence, could not be paid to the petitioner. The respondent No. 4, Executive Officer, Municipal Board, Bhadra, has taken the stand that the respondents had fixed the liability on the concerned officers for delayed payment of retiral dues and that there was no fault on the part of the answering respondent. It has also been averred that the petitioner had already been paid an amount of Rs. 24,565/- towards interest on delayed payment and further an amount of Rs. 28,902/- was being arranged to be recovered from the said Shri Prithvi Raj Jakhar and as soon as received, the same would be paid to the petitioner. This matter was heard on 01.11.2011 and was placed for dictation of order. However, for the observations made during the course of hearing of the matter, the respondent No. 4 has taken the corrective steps and today, before commencement of dictation of order, the learned counsel appearing for the respondent No. 4 handed over a cheque bearing number 7220 drawn on ICICI Bank Limited, Bhadra Branch, Bhadra in favour of the petitioner in the sum of Rs. 28,902/-. The cheque has duly been received by the learned counsel appearing for the petitioner. It is appreciated that the respondent No. 4 has seen the reasons and has taken the corrective measures and has made SBCWP No. 232/2010. Mohammed Hussain Vs. State of Rajasthan & Ors. [ 3 ] payment as due to the petitioner who was not to be deprived of the same only in the name of pending proceedings for recovery from the concerned officer. Not much dilatation on facts or any other issue appears requisite now but it does appear appropriate to observe that even when the administrative department concerned is entitled to fix the responsibility and even to take the disciplinary action against the person/s responsible for delay in payment of retiral benefits and to recover the loss caused to the Government due to payment of interest from such defaulting persons yet, such aspects, of fixing of responsibility, disciplinary action and recovery as against the defaulting persons, cannot be adopted as a pretext by the concerned department for withholding the payment of interest to the pensioner concerned. Such interest is envisaged to be paid under Rule 89 of the Rajasthan Civil Services (Pension) Rules, 1996 and the liability to pay such interest arises only on account of delayed payment of retiral benefits. It would be rather a travesty of justice if such payment of interest for delayed payment of retiral benefits is itself delayed or deferred in the name of proceedings against the defaulting persons. In the true operation of Rule 89 ibid., it is required of the concerned department to first make the payment to the pensioner concerned and then, to recover the same from the persons responsible. This Court would have considered saddling the respondents with further interest over such delayed payment SBCWP No. 232/2010. Mohammed Hussain Vs. State of Rajasthan & Ors. [ 4 ] of interest but looking to the fact that the respondent No. 4 has indeed made the payment before dictation of order, no further orders are being made in this matter. However, one aspect does require calling for comments and observations. The officer concerned who has been sought to be held responsible for the delay in payment of retiral benefits had been in the service of the respondents Nos. 1 to 3; and he is sought to be held responsible for holding the post of Executive Officer in the concerned Municipal Board at the relevant time. So far the Municipal Board, Bhadra is concerned, though it has made the payment but obviously, shall have to be reimbursed by the respondents Nos. 1 to 3. It is for the said respondents Nos. 1 to 3 to ensure as to how they are able to affix the responsibility and to recover the amount but so far the Municipal Board is concerned, it is required of the respondents Nos. 1 to 3 that such amount of Rs. 28,902/- as paid by the Municipal Board to the petitioner be reimbursed to it within 30 days from today. So far this writ petition is concerned, it can only be now treated as infructuous and is dismissed as such but with the requirements and observations aforesaid. No costs. (DINESH MAHESHWARI), J. /Mohan/

Mohammed Hussain vs State Of Raj. & Ors on 3 November, 2011

Rajasthan High Court - Jodhpur

IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.47999 of 2008 Bhagirath Paswan Versus State Of Bihar ---------------------------------- 04. 18.10.2011 As prayed for, put up this case on 15 th of November, 2011. Vikash (Mandhata Singh, J.)

Bhagirath Paswan vs State Of Bihar on 18 October, 2011

Patna High Court - Orders

IN THE HIGH COURT OF KARNATAKA AT BANGALORE Dated this the 30"' day of November, 2010 Bszlmc THE HON'BLE MR JUSTICE HULUVADI G « " Criminal Appeals 9.17 c/w 918, 9I5:?;"92'{),.¢92'," V Between: In CI'I.A 9'17/2009 S1-i Shambaiah S/0 Basappa A . 60 yrs, R/a # 1625, E Block ' 2'" Main Road, AECS Layout ' 'M I _ Kundalahaili, Bangalore 38 .. "Appellant (By Sri B S'3e'e'.~an"3;umi;;c;--Adm. And: v Padma Rani W10 V ,v -suia.I:_5'a":::~;:o #39, ;_Fl'0e.r., 1" C'1'Q.S$" " ' ''J.i_gn;1;1;_1i:ag:1;', B :1ngz1!():'°c:---7--5 ' ' A130' at:'' ' Riwj 'mite Xerox: # 32_1.7fi_._, VCM 'fndirzmagar Bz111g'::1_0'rc 38 I_ Respondent Sri \/e!V;"1At"'.'.1<i Ravi, Adv.) 918/2009 f?munthkuIna1' K K, 35 Yrs V ~ S/'0"]a£c: K K Gowdu " , [R/a # 33, Hat N0.2l() /, ix? Pammanantia Enciavc. :;Vlm'i<ct Roati HAL HI Stage. New Thi;)pa.~;anLE:'z1 B:-sngalore 75 ;\pp§:.il_2-mt ' ~ " (By Sri B S JBDVEIII Kumar, Adx-".) And: Sri V V Subbzx R210 C10 Ravi Studio _ # 32 H4, CMH Roach Indiranzlgar Bangaiore 560 038 Also at: # 39, 1" Floor 1" C1083, Vig11an;1I.1a1gz1r Bzmgalorc 560 075 Respondent (BY Sri Velanki In CrI.A 919/iimi. % % Sri A11ant1:1Vku111:zn~ ' yrs' ~ S/0 late K AG0._wda._ V " ' R/a # 33, Flat=N0.210'*. A _ --._ Ptlfélnllillaildif. Ei':;i%1a1'\-W2, Mar£:Ve.1VR'bad HAL 11;; Stage, New .."£iii'ppag;:1nd:~a " 'B;mga'!§ii=e -- ---------- --« Appellant '-(B}r: S':'E..B S }e€'V<z11i"Ku11121:', Adv.) M/S' Ravi ALl'lG 'X.CA.l7i)X # 32 I M, C13./ii£_Ri{>21(i, indir:1n;1gar 4 8angai0r£ ''56<)<_)38 ' ' .. nits Pr()p::iéE(')1' V_V"_Subi3a1 Ram. Proprit-:t0r Aim) Xerox ._ # 3'). 1"' Floor Kundz1I'ahz-1'EZ~i, Bzi1;«§;;ig:.ELV)'r-e' 38 Appclfam (By Sri B '§ce5\%ar1"}{un1e'11'. Adv.) I" Cross, Vigna:-1a1az1ga1' Bangalore 560 075 Respondem (By Sri Vcfanki Ravi, Adv.) In CrI.A 920/2039 Sri Anamhkumar K K, 35 yrs S/0 fate K K Gowda R/:1 # 33, F1atN0.2}(} Paramananda Enclave, Market Road HAL Ill Stage, New Tl1ippa1sandi'a.__ Bangalore 75 A _ Appellant (By Sri B S Jeevan Kumaar, Adv.)_.. 'V « V' V Smt V Padma Rani VV__f0 f_;'t,.lvi"'}'§")il Rat) V' # 39, 3" Floor, 1"' VVi._gi1'1V;1n21'11_agar.. V _ V ' Bzlfigalore 75 ;',:. ' b ' " A150 at: M/s; Rai\?i Az!.£i(5,Xeffigi' " # 321/-4, CMHV R0_:1d., vIiId.iVr:1.a_}a'gar' Bangalore 56C-.038 Respondent (By Sri Velanki /\f}V'.'}.' A In_CrE.A 92.1/2i~){)9 _ _ Sri Sha:n_b21iah?Sf(>Basappa """ H 6O__v_1's., R'f:1.V# Efock 2"" M--aiVu__}?.021:1,:VA.E,CS'a~L:-iym>uL %jkX/- And: Sri V V Subba R210 R/z1# 39, 1." FE001", I" C1'0.5's Vign21:mnaga1'. Ba11galorc: 75 Also at: Ravi Auto Xerox # 32 U4, CMH Road, Ind'ii'21I}i1g:11' Bangalore 38 (By Sri Veizmki Ravi. Adv.) In Cr}.A 922/2009 Sri Shambaiah S/0 Basappa 60 yrs. R/at # 1625. E Eiock % V 2'": Main Road, youtg Kundatlahaili, B_;1.:aga1}(>f§?.._38~v (By Sri B 'iée: v;::§ji::<L1;iié§:i,-- A: ci~\/a.V')' And: Ravi Auto Xerox. _ By its .P1'0p;'Li£«3E0r V""J __VSubE)a R210 ' " 32 1x4f;~C:§.4.1»~t Road, I11'ci'ir~;:i'1:1ga1r Bangralorrz 3.8 .4 AI-:_;:,>";i1_; %# 39.j"'1.,f' i?.1[oo"r, 1*" Cr0.s'.~; Vi g11anan21g:_uf. ' £3-;u'1gati(>1'e 75 (By Sri V'cV]'zi31;ki Ravi, Adv.) Responder}: Ajapcals are flied uncle: 3.378(4) of the Code: of Criminai "««--Pm@;:ed11rc praying, to set aside the order in CC 26386/2()08; CC jj vv.2.(::390/20t)$; Cr: 2639:/2(.)()x; CC 2.6392/2()()8; CC 26393/2.008 and CC X26395/2()()8 on 29.9.2()(.)9 by the XIV Add}. CMM, Bang21Eorc.. 5 The Appeals coming on for lleai'iiig this day, Court delivered the. l'ollowing: J UDGM :INT These. appeals have been filed by two C01"{}pl£1ln£1l't__lSiiélgvtllilégl the' _ accused who are the husbantl and wife. . y . _ The transactions are of the years 2t?-v()6 to Zlltlti. C(3--tnplai1its'were filed for the dishonour of eheques_isst1etlAihy tilegg.:é;jceu'sed 110"':-he~.. flyfi complainants. According to the eoinitiitlztiiifiifi aeeu:aed"'h:itl borrowed the amount shown in the i'espeetivei_ehe_-(guest ttotaling Rs.6 Vi lttkhs with an 2tssu1'anee:'to rep-3yitiie--s_;u1ie.V.Tl1e__cheques were drawn on Vijaya Bank, lndiranagar Br2tiieh,'BVang3l:)re-;.___.'On presentation of the cheques issued by the zteeused towgzirclsytlise'}:arge of their liability, they were dishonored " '~foi" i1i:,{uiilZ7l'ic§i.§;fi1itVfundsl' Ti3.ere.z1I.'te1', alter issuance of legal notice, for non 'r_payn'i.er_1t these eoinplaiiits were filed. The trial court on the basis of the eh'equfe:~;yiissi;1--eel .ii'i-iriividually having registered the cases in CC 2()33e..rm)s.; .C_fC.-- ii?,.639()/2(i)()8; CC 26391/2t){)8; CC 26392/20()8; Ce ii2_g6393/2(}08'z§nd CC 263'~)5/2008, almost by 21 common inquiry, held that "N3, ;Ili,eiiueteuse(li are not guilty of the offence untler S.l38 of the Negotiable (3 instruments Act as against which, these appeais are preferred by the complainants on various grounds. Heard the counsei. According to the complainants. the accused "haivej'eb.(irr«jwe_d V differeiit amounts commencing from Se;t.«'ten1i>er "2Q()6.fi'.?(td «in aii; the complainants have paid Rs.7 lakhs toythe acc'tt_sed,_ The tri_i;1Aieourtsagn premise that the burden lies on the corripiainants to.prove.=tha; in the year 2006 and thereafter, they ha<,i"'st1t'{'ieien'tiisiotireenoféincoinetoiivlend money and, the complainants have not at aiii'stated_.-2t._s"tof~wh_at is the source of income, doubted theiaj .t;_e'i::;ti()'r';«._ ii"-Tire Complainant Sharnbaiah is said to have lent Rs;4.,7i5,()007~ todttreiiaeeused and three cases are registered by him against the accused.' The complainant An-anthkurnar is said to have filent'i.Rs.3,2'5.it}()(if~=._ and three more cases are registered against the acctiseti. "}'~\,Ithou.gi1" it is eiieited in the cross examination of the "'coi'ap!a_inant's that they are running a company by name Siddhartha __ =En"t.er'pri'ses and they were also doing real estate business in the company --,:Vi)'u't'.'i the trial court has doubted their capacity to make payment on the "ti?" 7 ground that they have not protiueed the income tax returns; in proof' oi' their capacity to make payment. . » The entire approach of the triai court is" throwing the.'h.t._irt',eii.Voti the eompiainants as to their capacity anti also as to V£tEit).t1':i----other»ti'et2t'i'i~ii. ~ Observing that no partiettlar account or ine._om.e_tax rettit'n$§'~aIte p"ro_c'iueed, it anti holding that eotnpiainants have l'ai1ed'to pi-.'rove t]te~.CaS_é é1,,:C_.§£,tvi.ili;'t'§.§.tHti'1-if) aeeuseci beyond doubt, the trial eout*t__h'-(13 disni'i'-zssjetithe tetitnpietnta. In the ease of Rarzgappg '/.S"~1"l'/Ibhhfilii }¥-AIR 2010 S6 1898, the apex court has -hClV£'i7.§'h.£-_lt'iilaititai'~§)t1;'dt:Il is on the accused by way of negative onus; to ~riisp't'«ovac5£.ti1e 'existence of legally enforceable debt not _ oniy by_§piroi>g.tble e;q>.3;iné1ti(.>n' but, proof of explanation has to be offered. 7,W.hen_the i§r}.At1'¢'.I'](A.2'e..()i' cheque is a<;itn.itted and hears the signature of the z1c'et1_s"-ee_i_,.11eees~sariiy"i.t has to be presumed that the cheque was issued .toward"S* iegttl 1.y' foreeahie debt. The Va;t§\'p1'()21eh of the Eriai court ought to have been to proceed with i the pijesuingatitiia that the cheque was issued towards; iegaiiy enfo1'eeab]e EV, 8 debt and the btirden is on the accused to di.<;pt'o\-"e. the same. Btit, it has pi"0ceedet;i on the pl'€iTtlSC that ihe entire burden is on the cotnplainaatts to establish the case against the accused beyond i'C-1iS()I}FthVl'C_.ld(')lil?l"£1SVlS the procedure in a regtilat' criminal case. This is a special-.case'cut1deri'ihe Negotiable lnstrtiments Act where the ()nL1:'.$.llS oh' t'lie7:1cc-:t1s.e_d '{~(:) disprove the existence of legally enforeeztble debt. In that ViCW of the matter, lthelimpugned ordervs at*e"--i:=.et'aside;i.' Matter is remitted to the trial c0ut:I.: flit'"'alispt)saE'--mf the same in accordance with law, after al'l't)i"cli1tg_ to both the parties. Parties are__ciir.ccted 'tottvaiipeziitvt.heieie the trial court on 16"' December, 2010. Thereafter;t.hetrial' el()*-aVrt"'t._c>ldisp0s;e of the matter in four months. . Appeals.at'e..all0wed. Send back the records. sdii Euega "An *

Author: Huluvadi G.Ramesh

Sri Shambaiah S/O Basappa vs V Padma Rani W/O V V Subba Rao on 30 November, 2010

Karnataka High Court

M.Cr.C. No. 3892/2010 25.06.2010 Shri Amit Jain, counsel for the applicant. Shri C. K. Mishra, Public Prosecutor for the respondent/State. Heard both the parties. Case diary of Crime No. 64 of 2009 registered at Police Station Bamhani, District Mandla is perused. The prosecution story in short is that dead body of one Khemu Das was found near the railway track on 9.3.2010. Police Bamhani has registered a case under Section 302, 201 read with Section 34 of I.P.C against unknown persons. On investigation it was found that the deceased was a mentally retarded person. He was in habit of telling everything to others which he has seen or heard. He had stated that accused Annu Pandit had illicit relations with a girl Priti and, therefore, Basori beat his wife and daughter Priti. Accused Purshottam and Narottam felt bad of such allegations and they were threatening the deceased Khemu Das to kill him. On investigation it was found that one blue diary was lying near the dead body that was of accused Pushottam. Neighbour of Purshottam has also informed that on date of incident in house of Purshottam, sound was coming out of quarrelling and talking that they were beating someone in the house. Learned counsel for the applicant argues that the applicant is arrested on suspicion only. There is no direct evidence against him. He did not have any relation with the sister of the accused Purshottam and Narottam. There is no evidence that he was in the room when other accused persons were beating the deceased Khemu Das. There is no evidence regarding theory of last seen together against him. Nothing has been seized from him and there is no evidence to connect him with the offence. It is also argued that the applicant is in custody since 17.3.2010. Therefore, he prays for bail Learned Panel Lawyer opposes the bail application. After perusing the case diary and hearing aforesaid arguments, without expressing any view on the merits of the case, I am of the opinion that this is a fit case in which bail may be granted to the applicant namely Anil Kumar alias Annu. Therefore, application of the applicant Anil Kumar alias Annu under Section 439 Cr.P.C. is hereby allowed. He be released on bail on furnishing of a bond in sum of Rs.50,000/- (Rupees fifty thousand) with one surety bond of the like sum to the satisfaction of trial Court to appear before the trial Court on the dates given by the concerned Court. Certified copy if applied. (N.K. Gupta) Judge

Anil Kumar Alias Annu vs The State Of Madhya Pradesh on 25 June, 2010

Madhya Pradesh High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.647 of 2010 1. LILA DEVI W/O SAMARENDRA SINGH R/O VILL.- KOLODIHARI, P.S. CHAURI, DISTT.- BHOJPUR (ARA) Versus 1. THE STATE OF BIHAR 2. THE DISTRICT MAGISTRATE, BHOJPUR 3. THE SUB-DIVISIONAL OFFICER, BHOJPUR 4. THE BLOCK DEVELOPMENT OFFICER-CUM NODAL OFFICER KOLODIHARI, DISTT.- BHOJPUR 5. SURPANCH CUM CHAIRMAN SELECTION COMMITTEE GRAM PANCHAYAT KOLDEHARI, P.S. CHAURI DISTT.- BHOJPUR 6. DAZY KUMARI D/O DINA NATH PRASAD AT PRESENT SACHIV GRAM KECHARI KOLODIHARI P.S. CHAURI, DISTT.- BHOJPUR AND R/O VILL.- KOLODEHARI, P.S. CHAURI, DISTT.- BHOJPUR ----------- 2 28.6.2010 Petitioner's case is that despite the fact that her name was top in the merit list prepared for selection for the post of Sachiv, Gram Kachahri Kolodehari in the district of Bhojpur, she was not selected and appointed, for the reason that she has passed Madhyama examination. The requisite qualification for appointment is matriculation or any degree equivalent to matriculation as per Government policy but that was ignored by the respondents and one Dazy Kumari, whose name was second in the panel, was selected for the post. Issue notice to respondent no.6 to show cause as to why this application be not admitted/disposed off at the stage of admission itself, for which requisites, etc, under registered cover with A/D as well as under 2 ordinary process be filed within a week, failing which this application as against the concerned respondent shall stand rejected without further reference to a Bench. Put up for admission after six weeks. In the meantime counsel for the State will seek instruction and file counter affidavit. (Mridula Mishra,J.) A.kumar

Lila Devi vs The State Of Bihar &Amp; Ors on 28 June, 2010

Patna High Court - Orders

IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.25599 of 2010 BIRMANI YADAV, SON OF KARU YADAV Versus STATE OF BIHAR ----------- 2. 29.07.2010 Heard learned counsel for the petitioner and the State. The petitioner seeks bail in a case instituted for the offence under Sections 498 A, 304 B and 34 of the Indian Penal Code. Considering that the petitioner is the elder brother-in- law of the deceased and there is no specific overt act against him, 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 to the satisfaction of Chief Judicial Magistrate, Nalanda, at Biharsharif in Manpur P.S. Case No. 19 of 2010 subject to the following conditions: (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 bailor will undertake to furnish information to the Court about any change in address of the petitioner. (ii)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 the ground of misuse. (iii)That the petitioner will be well represented on each date and 2 if he fails to do so on two consecutive dates, his bail will be liable to be cancelled. ( Anjana Prakash, J.) S.Ali

Birmani Yadav vs State Of Bihar on 29 July, 2010

Patna High Court - Orders

IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.50 of 1994 M/S ATUL SPORTS & ORS Versus STATE & ORS with CWJC No.143 of 1994 M/S KA-KRI INTERNATIONAL & ANR Versus STATE & ORS with CWJC No.218 of 1994 M/S SPORTS STAR & ORS Versus STATE & ORS with CWJC No.219 of 1994 M/S NALANDA SPORTS INTERNAINAL Versus STATE & ORS with CWJC No.485 of 1994 M/S KANCHAN SPORTS & ORS Versus STATE & ORS with CWJC No.610 of 1994 M/S SUPER SPORTS INTERNATIONAL Versus STATE & ORS ----------- 3 13.07.2010 No one appears for the petitioners. The applications are dismissed for non- prosecution. ( Navin Sinha, J.) (Jyoti Saran, J.) Bibhash

M/S Atul Sports &Amp; Ors vs State &Amp; Ors on 13 July, 2010

Patna High Court - Orders

Court No. - 21 Case :- WRIT - C No. - 44017 of 2010 Petitioner :- Sudama Singh Respondent :- State Of U.P. And Anr. Petitioner Counsel :- R.B. Maurya Respondent Counsel :- C.S.C. Hon'ble V.K. Shukla,J. Grievance of the petitioner is that under the provisions of Indian Arms Act for grant of firearm licence, he had moved application on 14.10.2009 before the licensing authority, but till date no final decision has been taken on the same. As inaction is being complained on the part of the licensing authority, as such licensing authority is directed to see and ensure that the application of the petitioner is disposed of in accordance with law, expeditiously, preferably, within a period of six months from the date of receipt of a certified copy of this order. In terms of above observation and direction, present writ petition stands disposed of. Order Date :- 29.7.2010 SRY

Sudama Singh vs State Of U.P. And Anr. on 29 July, 2010

Allahabad High Court

[Section 113] [Complete Act]

Central Government Act

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.677 of 2008 Date of decision: 3rd November, 2008 Gurnam Singh Bajwa ... Petitioner Versus Gian Chand ... Respondent CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: None. KANWALJIT SINGH AHLUWALIA, J. (ORAL) Nobody caused appearance on 3rd October, 2008. Today also, nobody is present. Report submitted by the Rent Controller, Batala reveals that the application has already been decided. Present revision petition was filed seeking directions to the Rent Controller to dispose off the proceedings pending before the Rent Controller within a specified time. Dismissed in default. Otherwise also, nothing survives in the present petition and the same is dismissed. [KANWALJIT SINGH AHLUWALIA] JUDGE November 03, 2008 rps

Gurnam Singh Bajwa vs Gian Chand on 3 November, 2008

Punjab-Haryana High Court

Item No.10. DJ/- SBCWP NO. 7170/2010 Gram Panchayat Sodawas Vs. State of Raj. & Ors. Order dt: 04th August, 2010 1/2 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR ORDER DATE OF ORDER ::: 04th August, 2010 PRESENT HON'BLE DR. JUSTICE VINEET KOTHARI Mr. Moti Singh, for the petitioner. --- S. B. Civil Writ Petition No. 7170/2010 Gram Panchayat Sodawa Vs. State of Raj. & Ors. 1. Heard learned counsel for the petitioner. 2. Against the transfer of respondent No.4, namely, Surendra Singh, to Gram Panchayat Sodawas, the petitioner- Gram Panchayat has approached this Court by way of present writ petition. 3. Learned counsel for the petitioner submits that against giving of the additional charge in the said Gram Panchayat to the respondent No.4 as 'Gram Sevak', the villagers of the said Sodawas Gram Panchayat agitated, as the respondent No.4 used to indulge in corrupt activities, for which needful representation has already been submitted vide Annex-6 dated 29.06.2010 to the District Collector, Pali. It appears that the District Collector, Pali has not looked into the matter so far and has not passed any appropriate order disposing of Item No.10. DJ/- SBCWP NO. 7170/2010 Gram Panchayat Sodawas Vs. State of Raj. & Ors. Order dt: 04th August, 2010 2/2 the representation of the petitioner, Gram Panchayat-Sodawas. The respondent No.3, Block Development Officer vide impugned order dated 16.06.2010 (Annex-2) transferred the respondent No.4 at Gram Panchayat, Sodawas. 4. In view of the facts and circumstances of the case, this writ petition is disposed of with direction to District Collector, Pali to decide such representation by a speaking order within a period of three weeks from furnishing certified copy of this order. Till then for a period of three weeks, the operation of impugned transfer order Annex-2 dated 16.06.2010 shall remain stayed. Copy of this order be sent to respondents immediately. (DR. VINEET KOTHARI), J. DJ/-

Gram Panchayat Sodawas vs State Of Raj. & Ors on 4 August, 2010

Rajasthan High Court - Jodhpur

the Contract Labour (Regulation and Abolition) Act, 1970

Central Government Act

Court No. - 43 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 12096 of 2009 Petitioner :- Bhannu Singh Respondent :- State Of U.P. Petitioner Counsel :- Jai Narain,Deeraj Kumar Dwivedi Respondent Counsel :- Govt. Advocate,Gaurav Kakkar Hon'ble Vinod Prasad,J. Counter affidavit has been filed by learned AGA today in Court, which is taken on record. Learned counsel for the appliant does not propose to file any rejoinder affidavit. Heard learned counsel for the applicant, learned AGA and Sri Gaurav Kakkar, learned counsel for the respondent. At this stage, I am not inclined to grant bail to the applicant. Hence, the bail prayer of the applicant is rejected. Trial Court is directed to expedite the trial and make an endeavour to conclude the same, if possible within three months. Order Date :- 5.1.2010 AKG/-

Bhannu Singh vs State Of U.P. on 5 January, 2010

Allahabad High Court

CENTRAL INFORMATION COMMISSION Club Building (Near Post Office) Old JNU Campus, New Delhi - 110067 Tel: +91-11-26161796 Decision No. CIC/SG/C/2011/000350/13378 Complaint No. CIC/SG/C/2011/000350 Complainant : Mrs. Madhumita D-289 J.J Camp Tigarhi, New Delhi- 110062 Respondent : Public Information Officer O/o the Assistant Commissioner (South) Consumer Affairs, Food and Civil Supplies, Department, GNCTD, Asian Market Pushp Vihar, Sector-3, New Delhi-110017 Facts arising from the Complaint: Mrs. Madhumati filed a RTI application with the PIO, Consumer Affairs, Food and Civil Supplies on 07/02/2011 asking for certain information. However on not having received the information within the mandated time, the Complainant filed a complaint under Section 18 of the RTI Act with the Commission. On this basis, the Commission issued a notice to the PIO, Consumer Affairs, Food and Civil Supplies on 27/04/2011 with a direction to provide the information to the Complainant and further sought an explanation for not furnishing the information within the mandated time. The Commission has neither received a copy of the information sent to the Complainant, nor has it received any explanation from the PIO for not supplying the information to the Complainant. However the Commission received a letter dated 08/06/2011 from the Complainant stating that she has received a PIO's response on 17/05/2011. Further, the Complainant also alleges that the information provided vide such letter of the PIO is incomplete and irrelevant. Decision: The Complaint is allowed. In view of the aforesaid, the PIO is hereby directed to provide the complete and correct point- wise information in regard to the RTI Application dated 07/02/2011 to the Complainant before 28/07/2011 with a copy to the Commission. From the facts before the Commission, it appears that you have not provided the correct and complete information within the mandated time and have failed to comply with the provisions of the RTI Act. The delay and inaction on the PIO's part in providing the information amounts to willful disobedience of the Commission's direction as well and also raises a reasonable doubt that the denial of information may be malafide. The PIO is hereby directed to submit written submissions to show cause why penalty should not be imposed and disciplinary action be recommended against him under Section 20 (1) and (2) of the RTI Act . Notice of this decision be given free of cost to the parties. Any information in compliance with this order will be provided free of cost as per section 7(6) of RTI, Act, 2005. Shailesh Gandhi Information Commissioner 11 July 2011 (In any correspondence on this decision, mention the complete decision number.)(HD)

Smt.Madhumati vs Consumer Affairs, Food And Civil ... on 11 July, 2011

Central Information Commission

JUDGMENT Odgers, J. 1. This is a petition to revise the decree passed on 31st March 1920 by the Sub-Judge of North Arcot. The decree was passed in terms of an award following a reference to arbitration, in Original Suit No. 59 of 1917, by the parties thereto. The suit was brought by the plaintiffs for an account of their family property which had been in the management of the defendant during the minority of the eldest member. The reference or muchilika, the terms of which are important, runs as follows (page 27 paragraphs 1 and 2, of the printed pleadings): 1. That the parties herein have agreed to refer all matters in dispute between them in this suit to the arbitration of M.R, Ry. Emuloor Bojjayya Chetty Garu of Tirupati. 2. The said arbitrator's decision shall be final and binding upon all the parties to the suit and they will not object to his award. 2. The award was issued on 29th March 1920 and on 30th March 1920, the defendant asked for further time (one month) to file objections to the award, although, under Article 158 of the Limitation Act, he had 10 days for this purpose. The defendant was examined orally by the Sub-Judge on 30th March, 1920, the very same day on which he put in his petition for time, and he there alleged that the award had been passed "one-sidedly" by the arbitrator yielding to the plaintiff's influence and that the former has not examined the chill a papers. On 31st March 1920 the Sub-Judge passed an order refusing time to the defendant and stating that there was no real objection to the award and that the objection of collusion cannot stand. He passed a decree the same day in terms of the award. 3. The case in Velu Pillay v. Appasami Pandaram 9 Ind. Cas. 197 : (1911) 1 M.W.N. 141 : 9 M.L.T. 301 : 21 M.L.J. 444 is authority for saying that a decree passed on an award within the 10 days allowed by the Limitation Act is bad. This was the decision of a Single Judge (Wallis, J., as he then was) but is supported by a decision of a Bench of this Court in Sonraparaju v. Narayanaraju 17 Ind. Cas. 431 : (1912) M.W.N. 1232 : 12 M.L.T. 408, where it was held that such a procedure was without jurisdiction or was vitiated with material irregularity such as to call for revision. In Batcha Sahib v. Abdul Gunny 21 Ind. Cas 308 : (1914) M.W.N. 142 : 38 M. 256 : 14 M.L.T. 314 : 25 M.L.J. 507 relied on by Mr. C.V. Anantakrishna Aiyar, for the counter-petitioners (plaintiffs) in this case, the decision was that no appeal lay. The Court was asked to revise the decree appealed from and White C.J., said: "If it were quite clear that the learned Judge has exercised discretion wrongly in this case, we might be prepared to take the strong step of interfering in revision but the general policy of the Legislature is clear that in these matters the judgment in accordance with an award should be final." There is an obiter dictum in the judgment of the learned Chief Justice to the effect that, where "an application to set aside the award had been made and refused it would have been open to the Court to pronounce judgment even though the ten days had not expired." This was not, in my opinion, necessary to the decision, and in connection with the dictum a passage from Banerji's book is quoted on page 258 of the report with approval. The passage is to the effect that, in order to secure finality to the judgment, and decree the necessary conditions are that there has been no order remitting the award and that no application has been made to set aside the award within 10 days, or if an application has been made it has been refused after judicial determination by the Court. If it were necessary to ,do so, I should not be prepared to hold that the oral objections stated by defendant on 30th March 1920 in answer to question of the Subordinate Judge amounted to an application to set aside the award or that such application had been refused after judicial determination. It seems to me impossible to say that the summary, I may say informal, procedure adopted by the lower Court on 30th March 1920 was in fact a judicial determination of the matter. 4. The next question to consider is, whether the defendant by the terms of paragraph 2 of the muchilika has debarred himself from taking any objection to the award, and, if so, whether the Court has any right to assume jurisdiction not given to it by law in consequence of an agreement entered into by the parties. The case of parties contracting not to raise objections to an award has been dealt within several decisions It may here be stated that it was urged by the Vakil for the petitioner (defendant) and not contested by the Vakil for the counter-petitioners (plaintiffs) that the award has travelled into various extraneous matters not connected with the suit and not forming the subject-matter of the reference to arbitration. I am inclined to think this is so (e.g.,) with regard to the rasi account, the accounts of the property of plaintiffs' junior uncle "Ramiah" and the matters contained in paragraph 33 of the award which have nothing to do with the share of the third brother. I do not think the agreement not to object can fairly be taken to cover these extraneous matters which are not properly the subject-matter of the award at all. It is also established that such an agreement does not cover fraud unless it is expressly excepted. Fraud may be expressly excepted, that is, the parties may agree that it shall not be raised. It was held by Chitty, J., in Tullis v. Jackson (1892) 3 Ch. 441 : 67 L.T. 340 : 61 L.J. Ch. 655 : 41 W.R. 11, that fraud may be expressly excepted, that is, the parties may agree that it shall not be raised, though in Pearson v. Dublin Corporation (1907) A.C. 351 at p 362 : 77 L.J.P.C. 1, Lord James Hereford says: "As a general principle I incline to the view that an express term that fraud should not vitiate a contract would be bad in law." Again in Mackay, In the matter of (1834) 2 Ad. & E. 356 : 111 E.R. 138 : 41 R.R. 456 it was held that a clause precluding the parties from bringing actions against the arbitrators or impeaching their award unless for fraud did not debar a party to the deed from moving to set aside the award for illegality on the face of it, though no fraud or collusion appeared. It seems to 'me, therefore, that, in spite of Clause 2 of the muchlika, the defendant might lawfully have raised several grounds of objection to the award. In view of the proceedings of the Sub-Judge on 31st March 1920 on the application for time made by the defendant, and in view of the award which appears to me to travel outside the terms of reference and also from the fact that, in my opinion, the defendant would have been entitled to take objections to the award, I have come to the conclusion that the lower Court acted without jurisdiction or with material irregularity in passing the decree of 30th March, 1920 and that, for the reasons stated, it is no answer to say that the defendant had agreed not to raise objections to the award. 5. The Court, therefore, had no power to pass a decree before the expiry of the 10 days allowed by Article 158 of the limitation Act and the case falls under the decisions in Vein Pillay v. Appasawmi Pandaram 9 Ind. Cas. 197 : (1911) 1 M.W.N. 141 : 9 M.L.T. 301 : 21 M.L.J. 444 and Sooraparaju v. Narayanaraju 17 Ind. Cas. 431 : (1912) M.W.N. 1232 : 12 M.L.T. 408 cited above. The decree must be set aside and the case remitted to the lower Court to be dealt with according to law. Costs will abide the result. 6. This Civil Revision petition having been posted to be spoken to this day, the Court delivered the following JUDGMENT. 7. The case is remitted to the Court of the Subordinate Judge of Chittoor for disposal.

Author: Odgers

T.L. Rangiah Chetty vs T. Govindasami Chetty And Ors. on 24 March, 1921

Madras High Court

Gujarat High Court Case Information System Print WPPIL/37/2011 2/ 2 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD WRIT PETITION (PIL) No. 37 of 2011 ================================================= VIRAM S DESAI Versus STATE OF GUJARAT & OTHERS ================================================= Appearance : MR DEVANG J JOSHI for PETITIONER : 1, GOVERNMENT PLEADER for RESPONDENT : 1, None for RESPONDENT : 2 - 5. ================================================= CORAM : HONOURABLE THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 15/04/2011 ORAL ORDER(Per : HONOURABLE THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA) The petitioner, ex-President of Himatnagar Municipality, has preferred this petition under the caption 'Public Interest Litigation' for a direction on the authorities to implement the IHSDP and/or any other slum development scheme or policy to provide suitable dwelling accommodation to the slum dwellers residing in the various slum colonies in the Himmatnagar City by utilising the fund received by the respondent-authorities and not to demolish the slum colonies before providing alternative suitable accommodation to the slum dwellers. There is nothing on record to suggest that Central Government has framed any scheme for slum dwellers. Though a prayer has been made to implement IHSDP scheme, learned counsel for the petitioner is not in a position to state as to what is the full form of IHSDP. So far as any other Slum Development Scheme is concerned, in absence of any scheme enclosed with the petition, this Court is not in a position to issue any writ as sought for in the present case. So far as demolition drive is concerned, if one or the other slum or construction has been made illegally without the permission of the competent authorities, under the Municipalities Act, it is always open to the municipal authorities to take steps for removal of such unauthorised encroachment. Therefore, no such relief can be granted. The writ petition is therefore dismissed with costs of Rs.10,000 to be paid by the petition in favour of Red Cross Society, Ahmedabad. (S.J. Mukhopadhaya, CJ.) (J.B.Pardiwala, J.) *mohd     Top

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

Government Pleader For vs None For Respondent : 2 on 15 April, 2011

Gujarat High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 30008 of 2008(V) 1. SHIJO.S, S/O.SHANMUGHAN, ... Petitioner 2. LEYON.P.D, PORATHOOKARAN HOUSE, Vs 1. THE JOINT REGISTRAR OF CO-OPERATIVE ... Respondent 2. THE REGISTRAR OF CO-OPERATIVE SOCIETIES, 3. THE THRISSUR TALUK CO-OPERATIVE COLLEGE 4. THE ADMINISTRATIVE COMMITTEE, THRISSUR For Petitioner :SRI.GEORGE JACOB (JOSE) For Respondent :SRI.M.SASINDRAN The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN Dated :11/02/2009 O R D E R THOTTATHIL B RADHAKRISHNAN, J ........................................... WP(C).NO. 30008 OF 2008 ............................................ DATED THIS THE 11TH DAY OF FEBRUARY, 2009 JUDGMENT The third respondent is now managed by an Administrative Committee. The petitioners are members of the third respondent, society. The relief sought for in this writ petition is for a direction to conduct the election to the committee of the third respondent. The learned Government Pleader submits, on instructions, that the election to the committee could be held at the earliest. The term of the Administrative Committee now in office is due to expire in May, 2009. Let the election to the committee be held at the earliest. Writ petition ordered accordingly. THOTTATHIL B RADHAKRISHNAN, JUDGE lgk/12/2 

Shijo.S vs The Joint Registrar Of ... on 11 February, 2009

Kerala High Court

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 27/08/2010 CORAM THE HONOURABLE MR.JUSTICE D.MURUGESAN and THE HONOURABLE MR.JUSTICE M.DURAISWAMY W.A.(MD) No.180 of 2010 W.A.(MD) No.181 of 2010 W.A.(MD) No.182 of 2010 W.A.(MD) No.184 of 2010 W.A.(MD) Nos. 332 to 336 of 2010 & M.P.(MD).Nos.1,1,1,1,1,1,1,1,1,1,of 2010 Semalaiappan Contractor, No.44/36, Minor Ramanatha Nagar, Dharapuram, Thiruppur District. .. Appellant in W.A.(MD).Nos.180 & 335/2010 M/s.Raja Constructions, Rep. by its Sole Proprietor S.N.Dhanasekar, 240, Karur Road, Opp. To Carmal Convent School, Kangeyam-636 701. .. Appellant in W.A.(MD).Nos.181, 184,334 & 336/2010 K.A.I.G.Constructions (P) Ltd., Rep. by its Managing Director, I.Gurusamy, 7/A, Chokkanathapuram, Madurai. .. Appellant in W.A.(MD).Nos.182 & 333/2010 S.Balasubramania Pandian Contractor, No.B/348, Housing Board Colony, Anna Nagar, Madurai-625 020. .. Appellant in W.A.(MD).Nos.183 & 332/2010 vs 1.The Tamil Nadu Water Supply and Drainage Board, Rep. by its Chief Engineer, Southern Region, Ganesh Nagar, Near Law College Hostel, Opp.Mattuthavani Bus Stand, Melur Road, Madurai-625 001. 2.The Executive Engineer, TWAD Board, Urban Division, Dindigul. .. Respondents in all the writ appealsPrayer Writ Appeals 180 to 184/2010 are filed under Clause 15 of letters patent against the orders dated 23.12.2009 made in W.P.(MD).No.8549, 8552, 8550, 8553 & 8551 of 2009 respectively. Writ Appeals 332 to 336 /2010 are filed under Clause 15 of letters patent against the orders dated 22.04.2010 made in W.P.(MD).No.5422, 5423, 5420, 5419 & 5421 of 2010 respectively. !For Appellants ... Mr.K.Muthumani Doraisamy Senior Counsel for M/s.Muthumani Doraisamy ^For respondents ... Mr.M.Ajmal Khan :COMMON JUDGMENT (Judgment of the Court was delivered by M.DURAISWAMY,J.) Writ Appeals (MD).Nos.180 to 184 of 2010 are directed against the common order of the learned single Judge dated 23.12.2009 dismissing the writ petitions (MD).Nos.8549, 8552, 8550, 8553 & 8551 of 2009 respectively. The writ petitioners are the appellants in the above writ appeals. The writ petitions were filed to issue a writ of Certiorarified Mandamus calling for the records of the respondents ending with the order of the first respondent in Lr.No.F.101/SDO/1/C&A/2006,Lr.No.F.235/SDO.1/C&A/2006, Lr.No.F.93/SDO.1/C&A/2006, Lr.No.F.109/SDO.1/C&A/2006 and Lr.No.F.201/SDO.1/C&A/2006 respectively dated 14.08.2009, and quash the same and directing the respondents herein to forthwith foreclose the Agreement No.DR/TWAD/No.25/2008-2009, No.DR/TWAD/ No.23/2008-2009, No.DR/TWAD/No.26/2008- 2009, No.DR/ TWAD/No.24/2008-2009 and No.DR/TWAD/No.23/2008-2009 respectively dated 01.09.2008. 2.Writ Appeals (MD).Nos.332 to 336 of 2010 are directed against the common order of another learned single Judge dated 22.04.2010 made in W.P.(MD).No.5422, 5423, 5420, 5419 & 5421 of 2010 respectively. The writ petitioners are the appellants in the above writ appeals. The writ petitions were filed to issue a Writ of Certiorarified Mandamus to call for the records of the respondents, ending with the order of the second respondent in Lr.Nos.230310-2/F.109 Rural Habitations/JDO 1/2010 dated 23.03.2010, Lr.Nos.230310-4/F.93 Rural Habitations/JDO 1/2010 dated 23.03.2010, Lr.Nos.230310-1/F.201 Rural Habitations/JDO 1/2010 dated 23.03.2010, Lr.Nos.230310-3/F.101 Rural Habitations/JDO 1/2010 dated 23.03.2010 and Lr.Nos.230310-2/F.235 Rural Habitations/JDO 1/2010 dated 23.03.2010 respectively and quash the same and directing the respondents herein to forthwith release the Bank Guarantee furnished by the petitioner. 3.Since the issue involved in all these writ appeals are one and the same, they are disposed of by this common judgment. 4.The brief case of the appellants are as follows; a)According to the appellants, they are the leading Class-I Contractors with the Tamil Nadu Water Supply and Drainage Board. The appellants were awarded contracts. In pursuance of the same, work orders were given to them and agreements were entered into between the appellants and the first respondent. b) According to the appellants, they have completed the work as per the terms of the agreement except the erection of pump sets. The said work could not be completed since the same were entrusted to the contractors. In these circumstances, the appellants made representations to the competent authority, namely the first respondent, requesting him to foreclose the original agreement and to settle the final bill. On 30.05.2008, the first respondent foreclosed the original agreement and directed the second respondent to settle the final bill. c)Pursuant to the order of the first respondent, final bill was settled by the second respondent. Therefore agreements were entered into between the appellants and the second respondent on 01.09.2008 for the purpose of erecting pump sets and other allied works. Thereafter, the appellants completed the work. d) While so, to the shock of the appellants, they received a communication from the second respondent wherein the second respondent unilaterally extended the period of new agreement for a further of period of one year upto 31.03.2010, for which the appellants sent their reply. Thereafter, the appellants were served with orders passed by the first respondent rejecting the request of the appellants stating the orders of extension of agreement passed by the Executive Engineer is in conformity with the terms of the agreements. Subsequently, the second respondent passed orders once again extending the contract up to 30.11.2010 without any notice to the appellants. Challenging the said orders passed by the first and second respondents, the appellants have filed writ petitions. 5. According to the respondents, the contract was terminated as per Clauses 33 and 41 of the agreement and therefore, the orders passed by the first respondent are just and proper. Further according to the respondents, as per Clause 67 of the agreement the appellants, are not entitled to invoke the writ jurisdiction under Article 226 of the Constitution of India. In the event of any dispute arising between the parties in furtherance of the agreements, the course open to the appellants/petitioners is to approach the competent civil court having jurisdiction over the place where the contract is awarded and concluded. Therefore, according to the respondents, the writ petitions are not maintainable and the appellants/petitioners can only file a civil suit. In these circumstances, the respondents have prayed for dismissal of the writ appeals. 6.The learned single judges after taking into consideration the case of both sides, dismissed the writ petitions as not maintainable. Aggrieved over the orders passed by the learned single Judge, the writ petitioners have filed the above writ appeals. 7.Heard Mr.K.Doraisamy, the learned Senior Counsel for the appellants and Mr.M.Ajmal Khan the learned counsel for the respondents. 8.It is not in dispute that the second respondent had passed the impugned orders dated 22.04.2009 and 23.03.2010 extending the period of agreement for a further period of one year i.e. upto 31.03.2010 and 30.11.2010 respectively without any notice to the appellants. 9.Mr.K.Doraisami, the learned Senior Counsel appearing for the appellants, contended that the impugned orders passed by the respondents are liable to be quashed for the reason that the said orders were passed without giving any opportunity to the appellants. 10.According to the learned senior Counsel, there is no disputed facts involved in the present writ petition. Therefore, this Court can entertain the writ petitions and decide the same on merits. In support of his contention, the learned Senior Counsel relied upon the following judgments;- i) (2004) 3 SCC 553 (ABL International Ltd. v. Export Credit Guarantee Corpn. of India Ltd.), wherein the Honourable Apex Court held that when a disputed questions of fact pertaining to the interpretation/meaning of documents or part(s) thereof are involved, the courts can very well go into the same and decide the objections if facts permit. Moreover, the Apex Court also held that merely because one of the parties wants to dispute the meaning of a document or part thereof would not make it a disputed fact. ii)(2007) 6 SCC 81 (Bharat Petroleum Corpn. Ltd v. Maddula Ratnavalli), wherein the Honourable Apex Court has held as follows; "Reasonableness and non-arbitrariness are the hallmarks of an action by the State. The "State" acting whether as a "landlord" or a "tenant" is required to act bona fide and not arbitrarily, when the same is likely to affect prejudicially the right of others. The Supreme Court a number of times has laid emphasis on reasonable action on the part of the State even as a landlord and in contractual matters. Judged from any angle, the action on the part of the appellant does not satisfy the test of fairness or unreasonableness. It being wholly arbitrary cannot be sustained." iii) 2010 WLR 307 (PAS ENNORE PET. LTD V. UNION OF INDIA & OTHERS) wherein a Division Bench of this Court held as follows; "19.An analysis of the various judgment would show the following settled position of law, which are relevant for the purpose of disposal of these writ petitions: (1) The authorities must strictly adhere to the tender conditions and must enforce them with rigidity, except some minor deviations. (2) The Court can intervene in the decision-making process of the public authorities, only if such decision is influenced by extraneous/irrelevant consideration; arbitrariness, unfairness, favouritism, abuse of power, error of law and other reasons indicated in the aforesaid judgments. Having laid down the law, the Apex Court has also cautioned that there must be a judicial restraint in administrative action and the power of judicial review must be exercised only if it so warranted on the give facts of the case." 11.Countering the submissions made by the learned counsel appearing for the appellants, Mr.M.Ajmal Khan, the learned counsel appearing for the respondents submitted that as per Clause 67 of the agreement, the competent Court to decide the dispute between the parties is only a civil Court and not by writ proceedings under Article 226 of the Constitution of India. Therefore, the learned counsel submitted that the writ appeals as well as the writ petitions are liable to be dismissed. In support of his contention, the learned counsel relied upon the following judgments; i) AIR 1975 SC 1121 (Har Shankar v. Dy. E & T. Commr.), wherein the Honourable Apex Court has held as follows; "21 .... Analsying the situation here, a concluded contract must be held to have come into existence between the parties. The appellants have displayed ingenuity in their search for invalidating circumstances but a writ petition is not an appropriate remedy for impeaching contractual obligations..... 22..... The writ jurisdiction of High Courts under Article 226 of the Constitution is not intended to facilitate avoidance of obligations voluntarily incurred. That, however will not estop the appellants from contending that the amended Rules are not applicable as their licences were renewed before the amendments were made." ii) State of Gujarat V. Meghji Shah Charitable Trust (1194 (3) SCC 552), the Honourable Apex Court held that if the matter is governed by a contract, the writ petition is not maintainable since it is a Public law remedy and it is not available in private law field and the case of contract is governed by a non statutory contract. iii) Kerala SEB V. Kurien E.Kalathil (2000(6) SCC 293), the Honourable Apex Court held that interpretation and implementation of a clause in a contract cannot be the subject-matter of a writ petition. Further the Apex Court also held that a contract would not become statutory, simply because it is for construction of a public utility and it has been awarded by a statutory body. iv) Siemons Public Communication Pvt. Ltd. V. Union of India (AIR 2009 SC 1204) the honourable Apex Court held that a contract is a commercial transaction and evaluating tenders and awarding contracts are essentially commercial functions. In such cases principles of equity and natural justice stay at a distance. If the decision relating to award of contracts is bona fide and is in public interest, Courts will not exercise the power of judicial review and interfere even if it is accepted for the sake of argument that there is a procedural lacuna. 12. Since the main issue involved in the writ appeals and the writ petitions is with regard to the maintainability of the writ petitions, it is pertinent to extract Clause 67 of the agreement which reads as follows; "In the event of any dispute arising between the parties hereto in respect of any matter comprised in the contract, the same shall be settled by a competent Court having jurisdiction over the place where the contract is awarded and agreement is concluded and by no other Court." 13.On a careful consideration of the submissions made by both the counsels and the judgments relied upon by them, it could be seen that the main issue is with regard to the interpretation of Clause 67 (i.e) whether "competent court" referred to in Clause 67 of the agreement is by way of writ petition under Article 226 of the Constitution of India or a civil suit before a competent civil Court. That apart the issue with regard to the power of the respondent to extend the period is also a disputed question. 14.It is a settled principle of law that a writ is not a remedy for enforcing contractual obligation. A writ under Article 226 of the Constitution of India is not a proper proceeding for adjudicating such dispute under the law. It is open to the parties to approach the Court of competent jurisdiction for proper relief and for breach of contract. When an alternative and equally efficacious remedy is open to the litigant, he should be required to pursue that remedy and not invoke the writ jurisdiction of this Court. The dispute relating to the contracts cannot be agitated under Article 226 of the Constitution of India. Therefore, the dispute with regard to interpretation of the terms of the agreement could not be agitated in a writ petition under Article 226 of the Constitution of India 15.A statute may expressly or impliedly confer power on a statutory body to enter into contracts in order to enable it to discharge its functions. Dispute arising out of the terms of such contracts or alleged breaches have to be settled by the ordinary principles of law of contract. The fact that one of the parties to the agreement is a statutory or public body will not by itself affect the principles to be applied. The dispute with regard to the meaning of a covenant in a contract or its enforceability have to be determined according to the usual principle of contract act. Further, a contract would not become statutory simply because it is for construction of a public utility and it has been awarded by a statutory body. 16.In the present case, the agreement cannot be termed as a statutory agreement. Therefore, a dispute relating to the interpretation of the terms and conditions of such a contract could not be agitated in a writ petition under Article 226 and the dispute is a matter for adjudication only by a civil Court or in arbitration proceedings, if provided in the contract. In the case on hand, in Clause 67 of the agreement, "competent court" means only a competent civil court. That being the case, when an alternative remedy is open to the litigant, he should be required to pursue that remedy and not invoke writ jurisdiction. Even though, the power under Article 226 of the Constitution of India are wide it cannot be said that such power could be invoked even in cases where disputed questions of fact arise for consideration and when contractual obligations and breaches thereof are involved. When there are disputed questions of fact, the competent court to decide the issues is only a civil court. Therefore, the issue with regard to the question of fact cannot be decided in a writ petition. The learned single judges rightly dismissed the writ petition as not maintainable. 17.In these circumstances, without going into the merits of the matter, we are of the considered view that the writ petitions filed by the appellants are not maintainable in view of Clause 67 of the agreement. Therefore, W.A.(MD).Nos.180 to 184 of 2010 and W.A.(MD).Nos.332 to 333 of 2010 are liable to be dismissed. 18. We find no ground to interfere with the orders of the learned single Judges. Therefore, the writ appeals are dismissed. However, there shall be no order as to costs. Consequently, connected miscellaneous petitions are closed. 19. Insofar as W.P.(MD).Nos.9699 and 9700 of 2010 are concerned, the said writ petitions are preferred against the orders passed by the first respondent dated 18.09.2009, The Chief Engineer, the Tamil Nadu Water Supply and Drainage Board terminating the contracts awarded to the petitioners. At the request of the learned counsel for the respondents, the said writ petitions were tagged along with the above writ appeals. However, on a perusal of the affidavit filed in support of the above writ petitions, it could be seen that the writ petitions are filed by the main contractor and the issue involved in these writ petitions are different from the issues involved in the writ appeals. Therefore, these writ petitions are delinked from the above writ appeals and the Registry is directed to list the writ petitions before the concerned single Judge for hearing. jikr To 1.The Tamil Nadu Water Supply and Drainage Board, Rep. by its Chief Engineer, Southern Region, Ganesh Nagar, Near Law College Hostel, Opp.Mattuthavani Bus Stand, Melur Road, Madurai-625 001. 2.The Executive Engineer, TWAD Board, Urban Division, Dindigul. 3.The Chief Engineer, TWAD Board, Southern Region, Ganesh Nagar, Melur Road, Madurai-625 007. 4.The Executive Engineer, TWAD Board, Urban Division, 1-C, Thiruvalluvar Road, Near Bus Stand, Dindigul-624 003. 5.The Superintending Engineer, TWAD Board, MDT Circle, Ganesh Nagar, Melur Road, Madurai

Semalaiappan vs The Tamil Nadu Water Supply And on 27 August, 2010

Madras High Court

JUDGMENT S.U. Khan, J. 1. Respondent No. 3 Shiv Sagar Tiwari filed O.S. No. 1931 of 1980 against Vidyawati petitioner No. 1, her husband Brij Bihari Shukla petitioner No. 2, Karamchari Nagar Housing Society petitioner No. 3 and Mohan Lal, Secretary of the Society petitioner No. 4. 2. The allegation in the plaint was that the Cooperative Housing Society defendant No. 3 had allotted plot No. 158 to the plaintiff on 8.10.1971 through registered lease deed and possession had also been delivered to him, however on 6.12.1980, he found that defendant Nos. 1 and 2 were making constructions over the said plot. The relief claimed was for permanent prohibitory injunction restraining the defendants from making construction or encroaching upon the property. Relief of possession was also claimed. Defendant Nos. 1 and 2 filed written statement and pleaded that the society had allotted the plot in dispute to defendant petitioner No. 1 and hence they made constructions over the plot in dispute. It was further pleaded by the defendant No. 1 that lease of plaintiff was cancelled by the Society as plaintiff failed to comply with the terms and conditions thereof and plaintiff was dispossessed from the plot earlier allotted to him and thereafter it was allotted to defendant No. 1. Replication was also filed by the plaintiff thereafter. Defendant Nos. 1 and 2 through application dated 2.9.1983 sought amendment in the plaint for adding the plea regarding bar of Section 70 of U.P. Cooperative Societies Act, 1965. Issues were framed and issue No. 10 pertained to the jurisdiction of civil court in view of Section 70 of U.P. Cooperative Societies Act. VIIIth Additional Munsif Kanpur through order dated 15.12.1983 held that the suit was barred. Against order dated 15.12.1983, plaintiff filed Misc. Appeal No. 9 of 1984. XIIth Additional District Judge, Kanpur allowed the appeal on 21.4.1984. Appellate court set aside the order of the trial court and held that the suit was not barred under Section 70/111 of U.P. Cooperative Societies Act. The said order of appellate court has been challenged through this writ petition. 3. Under Section 70 of the Act. it is provided that if any dispute relating to the constitution, management or the business of a Cooperative Society among members, past members and person claiming through members shall be referred to the Registrar for action in accordance with the provisions of the Act and the Rules and no court shall have jurisdiction to entertain any suit or other proceeding in respect of any such dispute. Under Section 111(c) of the Act, it is provided that no civil or revenue court shall have any jurisdiction in respect of any dispute required under Section 70 to be referred to the Registrar. 4. The appellate court held that even though it was admitted to the parties that the business of the cooperative society concerned was allotment of plots for construction of houses to its members however in the suit in question no such dispute was involved. It was also held that it was not proved that defendant No. 1 was member of the society. It was also held that defendant No. 2 was not even alleged to be the member of the society. 5. In my opinion the judgment of the appellate court is erroneous in law. To allot the land to its members was/is are business of the society in question. Two persons are claiming the allotment of the same plot. Both of them are also claiming to be members of the society. The matter is squarely covered by Section 70 of the Act. The question as to whether defendant No. 1 was valid member of the society or not can also incidentally be decided by the Registrar under Section 70 of the Cooperative Societies Act. 6. Accordingly writ petition is allowed. Impugned order passed by the appellate court is set-aside. Order passed by the trial court is restored and it is held that the suit is not maintainable in view of Sections 70 and 111(c) of the U.P. Cooperative Societies Act.

Author: S Khan

Smt. Vidyawati And Ors. vs Xiith Addl. District Judge And ... on 20 March, 2007

Allahabad High Court

Diesel 1,03,037 Transportation 1,26,000 Soil carrying expenses 2,50,006 Donation 19,265 Wages 10,27,621 ORDER Pradeep Parikh, Accountant Member 1. The assessee is in appeal before us against the order of the learned CIT(A) dated 22-1-1990 for assessment year 1985-86. Though apparently there are four grounds, actually there is only one issue and it relates to the levy of penalt/of Rs. 70,000 under Section 271(1)(c) of the Income-tax Act, 1961 (the net). Rest of the grounds are mere submissions and/or arguments and are dealt with at the appropriate places in this order. 2. The facts : The assessee M/s Parasmal Parekh, E-37, Shastri Nagar, Jodhpur was a registered firm engaged in contract work relating to Government Departments. It had secured a contract from the Improvement Trust, Jodhpur for the construction of Barkatullah Khan Stadium, Jodhpur. It came into existence in the assessment year 1984-85 under Deed dated 30-10-1982 of Partnership. Its partners were S/Shri Parasmal Parekh, Kewalchand Jain and Banwar Ram. The firm is said to have been dissolved with effect from 1-5-1985. For the assessment year 1985-86 in question there were three accountants (Munims) in the said firm, namely, S/Shri Nemichand Sharma, Satya Narain Sharma and Rikhabmal Nahar. Out of these Shri Rikhabmal Nahar, who was said to be the main Munim died two days after the Dewali, 1985. For the assessment year in question, on gross receipts of Rs. 51,56,471, the assessee declared a net profit of Rs. 4,93,945 giving a rate of 9.5% as against 10% applied in the preceding assessment year 1984-85. The ITO noticed that as against the total payment/receipts of Rs. 51,56,471, the assessee had claimed Rs. 10,27,621 as wages which came to roughly 1/5th. The labour expenses had been claimed on the basis of muster rolls for the period 14-5-1983 to 28-2-1984. The ITO issued notices under Section 143(2)/142(1) requiring the assessee to produce evidence in support of the return filed and to produce the books of account on 16-4-1986. On the said date the books of account were produced before the ITO and taking the view that they were faked, they were impounded under Section 131. The books so impounded also included the muster rolls of labourers. The ITO noticed that thumb impressions of some persons were repeated again and again at a number of places. Thereafter, on 18-4-1986 the ITO referred the matter for report of the Finger Print Expert. The report dated 23-7-1986 of the Director, Fingure Print Bureau, Calcutta stated that one muster roll pertaining to Barkatullah Khan Stadium dated 14-5-1983 (Sheet Nos. 79, 80 & 81) had 58 names in Hindi against which the finger prints marked showed that:- (i) 32 finger prints were identical to each other, (ii) 17 finger prints were identical to each other, and (iii) 9 finger prints were not clear and were smudged and therefore, unfit for comparison. On 30-9-1986 the ITO examined the assessee firm's Partners S/Shri Parasmal Parekh and Kewalchand Jain. The statement of the Munim Shri Satyanarain Sharma was recorded on 9-10-1986 and the second statement of Shri Nemichand Sharma was recorded on 21 -10-1986. The second statement of the assessee firm's partner Sh. Parasmal Parekh was recorded on 17-11-1986 and thereafter the statements of other partner S/Shri Kewalchand Jain and Sanwalram were recorded on 3-12-1986 and 4-12-1986. Earlier the ITO had required the assessee, vide notice dated 9-10-1986 to produce some of the labourers, namely, S/Shri Vyas, Satyaraj, Hasari, Baldeo, Naurath, Khetaram, Shivlal, Devilal, Ramlal, Vadera and Pema. However, vide its reply dated 15-10-1986 the assessee expressed its inability to produce them on the ground that the execution of the work had been suspended and that the labourers had migrated to the other sites of work, the labourers being casual and migratory. The ITO took the view that only three labourers affixed their thumb impressions against the names of 58. According to him the expenses under the head "Wages" were bogus and inflated. He also found that though the assessee-firm did not own any vehicle, expenditure debited for diesel was Rs. 1,03,037, expenditure on transportation was shown as Rs. 1,26,000 and expenditure for soil carrying was shown at Rs. 2,50,006. He was of the view that barring purchase of materials, it appeared that the account books were cooked up solely for income-tax purposes. He further took the view that the diary on the basis of which muster rolls were prepared and which was a contemporaneous record, had been withheld from the Department and forged vouchers were produced. The non-production of labourers as mentioned above was taken by the ITO to prove that the wage bills had been considerably inflated and fictitious names of wage earners added and also false disbursement shown and claimed. He held that the account books did not reflect the correct state of affairs and that muster rolls and vouchers and payments included forged entries and that expenditure had been inflated. He observed that the assessee had not given any cogent explanation for the falsification of accounts. The ITO also observed that the scrutiny of accounts showed that under the head "Advertisement Expenses", "Travelling Expenses", "Transportation Expenses", "Donations" had either been inflated or no vouchers were available at all. On 5-1-1987 the assessee's counsel Shri S.L. Choudhary attended before the ITO and gave the following letter :- Before the Income-tax Officer, A - Ward, Jodhpur. In the matter of M/s. Parasrnal Parekh & Co. Assessment year 1985-86. Sir, Without prejudice to any penal action, the assessee agrees to an addition of Rs. One lakh to the declared income just to purchase peace and to avoid harassment in procrastinated litigation and subject to the averment that such amount neither represents concealed income of the assessee under Section 271(1)(c) nor in any manner a wilful attempt to evade tax or penalty by making any false entry in the books of accounts to the knowledge of the partners of the firm as envisaged under Section 276C. 5-1 -1987 Sohan Lal Choudhary Advocate for Assessee On the same day another letter was also given by S.M. Jangid, CA, representing the partner Shri Sanwalram. The letter read as follows :- 5-1-1987 The Income-tax Officer, A - Ward, Jodhpur. Re : Sh. Sanwal Ram, Jodhpur Assessment year 1985-86 Subject: Assessment of firm M/s. Parasmal Parekh, Jodhpur. Dear Sir, As entrusted by my client Shri Sanwalram partner of the firm, he has got no objection if an amount of Rs. One lakh is being surrendered by the firm. Thanking you, Yours faithfully, Sd/- (S.M. JANGID) A.R. On the basis of the aforesaid two letters on behalf of the assessee conceded that Rs. 1 lakh may be added to the declared income which would raise the net profit rate to about 11.51%. The ITO made an addition of Rs. 1 lakh as the income surrendered by the assessee in addition to the income returned. Assessment was framed accordingly the same day, i.e., on 5-1-1987. The addition was sustained by the learned CIT(A) and also by the Tribunal in ITA No. 226/JP/88 vide its order dated 9-4-1991. 3. Penalty proceedings were initiated in the course of assessment proceedings. In response to the show-cause notice, it was stated by the counsel of the assessee that the assessee agreed to an addition of Rs. 1 lakh subject to the condition that no penalty proceedings will be initiated. The Assessing Officer did not agree with this contention. He concluded that the assessee did furnish inaccurate particulars of income and computed the minimum penalty at Rs. 61,907 and finally levied a penalty of Rs. 70,000. 4. The learned CIT(A) also confirmed the penalty on the ground that the surrender came only when the assessee was cornered from all angles in regard to the alleged fabricated nature of the claim duly supported by an expert opinion. 5. Shri N.M. Ranka, the learned counsel appeared for the assessee. It was submitted by him that in assessment year 1984-85, the assessee had declared a net profit rate of 9.5% and finally a rate of 10% was applied. This year also the net profit was 9.5% but by the addition of Rs. 1 lakh it went up to 11.5%. He drew our attention to page 67 of the paper book wherein a few comparable cases have been given and the rate applied varied from 8% to 10.5%. The declared results were, therefore, just, fair and reasonable according to him. The next contention was that the assessee maintained regular and proper books of account and were subjected to audit under Section 44AB of the Act. The labour payments also, which formed the main basis for the impugned addition, were not more than the standard percentage. The accounts were being looked after by three accountants and that the partners were under a bona fide belief that they have been properly and correctly maintained by its employees. The department had failed to prove positively any inflation of expenses and that the assessee agreed for the addition merely to purchase peace and avoid unending litigation. The letter dated 5-1-1987 from the assessee, he said, bore testimony to this. As regards the report of the finger-print expert, it was submitted that it was quite customary that a person would receive payment on behalf of other workers. Therefore, the similarity did not prove that the labour payments were inflated and fictitious. There was no conscious concealment on the part of the assessee and hence the penalty levied was most unfortunate and unjust. It was emphatically pleaded that the addition was sustained by the Tribunal merely on account of the surrender by the assessee. But there was no evidence of concealment and the situation and the background under which surrender came to be made need to be appreciated. If this is done, he said, the burden under Explanation 1 to Section 271(1)(c) would stand duly discharged and penalty proceedings being quite distinct from the assessment proceedings, the case would no longer remain fit enough to attract penal provisions, despite the surrender of Rs. 1 lakh and its sustenance by the Tribunal. Summing up his arguments, Shri Ranka submitted that, (a) the assessee had duly co-operated with the department, (b) the partners were not a party to the thumb impressions being similar, (c) disbursing authority was one accountant Mr. Nahar who had since expired and hence the benefit of his version was not available, (d) it was customary to obtain payment by one on behalf of the others and (e) that the surrender was essentially to buy peace and to avoid protracted litigation, though it was not the real income of the assessee. Finally, reliance was placed on various judicial pronouncements reported at CIT v. Anwar Ali [1970] 76 ITR 696 (SC), CIT v.Bhauramal Manickchand [1980] 121 ITR 840 (Cal.), CIT v. Goswami Smt. Chandralata Bahuji [1980] 125 ITR 700 (Raj.), CIT v. H. Abdul Bakshi & Bros. [1986] 160 ITR 94 (AP) (FB), CIT v. Smt. Satnam Malik [1987] 167 ITR 764 (Raj.), Sir Shadilal Sugar & General Mills Ltd. v. CIT [1987] 168 ITR 705 (SC) and CIT v. Dharamchand L. Shah [1993] 204 ITR 462 (Bom.). 6. Shri G.C. Bansal represented the department. It is not a simple and usual case of a contractor, he stated, where Section 145 of the Act was applicable on account of the usual defects found in the books. It was a case where the accounts were cooked up with an ulterior motive to evade taxes and that the assessee had such a motive was proved by the report of an expert in the case of labour payments. He recalled the chronology of events commencing from the date of hearing before the Assessing Officer, the production of books, obtaining the report of the finger-print expert, examination of partners and accountants and so on. It was only after this nine-month grilling, he stated, the assessee felt itself cornered and seeing that now there was no escape, ultimately surrendered Rs. 1 lakh. While accepting the surrender, there is no evidence to indicate that the Assessing Officer agreed not to levy any penalty. The Assessing Officer had undertaken quite an exercise to prove that the assessee's claim was fake and hence there was no question of his agreeing not to initiate penalty proceedings. Further, the assessee has not challenged that the muster roll is manipulated and since one of the accountants Shri Nahar has died, the assessee has tried to take advantage of the situation by putting the blame on him and by not producing a diary maintained by him in this respect. When the accounts are audited, they do lend credibility, but that does not mean that they are not open to scrutiny by the Assessing Officer as collusion by the assessee with the auditor cannot be altogether ruled out. The fact that the firm has since been wound up does not exonerate the assessee from penalty proceedings and it reflects on the conduct of the assessee that in spite of surrendering, it went in appeal up to the Tribunal stage to challenge the addition. Finally it was stated that the ratio laid down by the Supreme Court in Anwar Ali's case was no more a good law, particularly after the insertion of the Explanation. Reliance was placed on various authorities reported at CIT v. Dr. R.C. Gupta & Co. [1980] 122 ITR 567 (Raj.), Banaras Chemical Factory v. CIT [1977] 108 ITR 96 (All), Rathnam & Co. v. IAC [1980] 124 ITR 376 (Mad.), H.V. Venugopal Chelliar v. CIT [1985] 153 ITR 376 (Mad.), Pahulal Ved Prakash v. CIT [1990] 186 ITR 589 (All.) Madras Bangalore Transport Co. v. CIT [1991] 190 ITR 679 (Bom.) and CIT v. K.P. Sampalh Reddy [1992] 197 ITR 232 (Kar.) for the various submissions made by him. 7. We have thoughtfully considered the material on record and the rival submissions. In order to appreciate the rival submissions, it would be advantageous, at the outset, to discuss a few legal principles established by authoritative pronouncements and which fit into the facts and circumstances of the case before us. 8. Firstly, it is undisputed that penalty proceedings are separate and distinct from assessment proceedings. Findings in quantum proceedings, though relevant and admissible, they cannot operate as res judicata. Penalty is not a matter of course and is not attracted automatically simply because the additions have been sustained in quantum proceedings. For this principle we have the approval of the jurisdictional High Court in the case of Goswami Smt. Chandralata Bahuji (supra). Hence, in the instant case, the facts and circumstances will have to be seen, for which the order of the Tribunal dated 9-4-1991 in ITA No. 226/JP/88 will certainly be a guide, but will not at once lead us to conclude that penalty is sustainable. 9. Secondly, we are not agreeable with the contention of Shri Ranka that penalty is not leviable as the firm is dissolved long back. This is in view of the very clear provisions in Section 189 of the Act. 10. Thirdly, we also do not agree with his contention that the partners were not aware of the alleged manipulations in the account. For this, we draw support from the decision of the Allahabad High Court in the case of Pahulal Ved Prakash (supra). But this itself will not establish the concealment in the case before us as the other aspects of the case also shall have to be looked into. 11. Next, it is true that since the decision of the Supreme Court in Anwar Ali's case (supra), the law has undergone a sea-change insofar as that the burden of proving concealment has gradually shifted on the assessee of proving non-concealment. However, the basic observation of the Supreme Court, that before penalty can be imposed, the entirety of circumstances must reasonably point to the conclusion that the disputed amount represented income and that the assessee consciously concealed the particulars thereof or deliberately furnished inaccurate particulars, still hold good. Thus in the instant case also, by virtue of Explanation 1 to Section 271(1)(c) of the Act, though presumptions are raised against the assessee, those are rebuttable presumptions. And in the process of rebuttal, if the explanation of the assessee is not accepted or is found to be false, that itself will not constitute sufficient material to attract penal provisions. The entirety of circumstances must point to the conclusion of concealment as stated earlier, before a penalty can be imposed. This principle has been enunciated by their Lordships of the Calcutta High Court in the case of Bhaummal Manickchand (supra). 12. That brings us to the question as to how the presumptions raised against the assessee can be rebutted and as to when the initial burden cast on the assessee can be said to have been discharged. The Full Bench of the Andhra Pradesh High Court had the occasion of dealing with this question in the case of H. Abdul Bakshi & Bros, (supra). The Hon'ble High Court held that the initial burden can be discharged by the assessee a preponderance of probabilities and evidence. It can be discharged either by the material already on record or by adducing fresh evidence during penalty proceedings^ The jurisdictional High Court, in the case of Smt. Satnam Malik (supra), went a little further and held that, at times, even the explanation of the assessee, its nature and probabilities arising therefrom may be sufficient to discharge the burden, provided the explanation is not unfounded. The quantum of proof necessary, the Hon'ble High Court stated, would be that required in a civil case, having preponderance of probabilities. 13. It is stated in the earlier part of this order that the finding of the Tribunal in the quantum appeal can be a good guide in penalty proceedings. Hence it would be advantageous to turn to that order in order to ascertain as to under what circumstances the Tribunal sustained the addition of Rs. 1 lakh. 14. Firstly, the Tribunal rejected the contention of the assessee that the surrender was effected under undue influence, pressure or coercion. By referring to the order sheet entries it also rejected the contention that the surrender was made on the understanding that the penal provisions would not be invoked. Then the Tribunal went on to narrate the background in which the assessment was completed and it would be worth reproducing the same here in extenso in order to enable us to decide the issue before us. Starting on page 11 of the order, it reads as follows : However, it may be stated, for the sake of completing the narration, that the ITO had found that the profit rate declared by the assessee was 9.5% and that the net profit rate applied in comparable cases was around 10% and the counsel conceded that "Rs. 1 lakh may be added to the declared income which would raise the net profit rate to about 11.51% which is the maximum that the appellate authorities are likely to uphold in the case of contractors where total receipts exceeded Rs. 51 lacs. The approach of the ITO as is clear from the assessment order was, therefore, that the profit rate declared only 9.5% as against 10% applied in the preceding assessment year 1984-85. He had entertained a doubt regarding the genuineness of the assessee's account books consisting of Cash Book, Ledger, vouchers which were suspected to be faked and cooked up. The ITO was also doubting the following expenses which had been claimed by the assessee :- So far as the wages are concerned, doubts had arisen in the mind of the ITO on account of thumb impressions of same person repeated at a number of places on the muster rolls for the period from 14-5-1983 to 28-2-1984. In this background the ITO issued notices under Section 143(2)/143(1) requiring the assessee to produce evidence in support of the return and to produce the books of account on 16-4-1986. On the said date when books of account were produced, they were impounded by taking the view that they were faked. Thereafter the report dated 23-7-1986 of the Director, Finger Print Bureau, Calcutta showed that 32 finger prints were of one person, 17 of another person and that 9 finger prints were not clear enough for comparison. On 30-9-1986 when the assessee's partner Shri Parasmal Parekh was examined, he stated that he was entitled to represent the firm in all the matters. On the same day the other partner Shri Kewalchand Jain was also examined but he was also not asked as to what was the case of the assessee in regard to muster rolls. Another person examined on the same date was the Munim Nemichand Sharma who stated that nearly all the muster rolls were prepared by the Munim Shri Satyanarain Sharma and that he and Rekhab Mai Nahar, Munims used to prepare the vouchers. It is on 17-11-1986 when Shri Parasmal Parekh the assessee's partner was again examined that he was asked more specific questions. He stated that generally Sh. Sanwalram was recruiting the labourers and that the Munim Shri Rekhab Mal Nahar was exercising control over the actual expenditure on labourers. When he was shown the muster rolls in which thumb impressions were put against names of different persons and he was asked to say what he had to about it, he stated that the actual state of affairs was known only to the Munim Shri Rekhab Mal Nahar and that sometimes it happened that one of the labourers/wage earners was being authorised by others to receive payment on behalf of them and that it was likely that such persons may have out their thumb impressions against others for which they had been authorised. When he was asked whether he was directly recruiting labourers or through some agents, Shri Parasmal Parekh replied that at 12th Road Crossing labourers collected in the morning and anybody who wanted them could pick them up from there. He also stated that he was unable to produce those labourers who were not in his employment then and even they were not known to him directly. He also denied that any payments were made to the labourers in his own presence as had been the statement of the Munim Sh. Nemichand Sharma on 30-9-1986. he stated that the payments were made only through Shri Rekhab Mai Nahar. Thus, the assessee had put forward what its case was in regard to the mode of recruiting labourers and the mode of payment to them as recorded in the muster rolls. Sh. Satyanarain Sharma, Munim had stated in his statement dated 9-10-1986 that the muster roll from April 1983 to February 1984 was in his writing aad that the thumb impressions of the labourers in the muster roll were obtained by Shri Rekhab Mal Nahar who was the main Munim and that the thumb impressions were not affixed in his own presence. The partner Shri Kewalchand Jain was again examined on 3-12-1986 and he confirmed the fact that it did happen that at the time of payment one labourer received payment for other labourers also. He also stated that there was never any complaint from any one labourer that he did not get the wages and that thumb impressions were affixed by the labourers who received the payments actually. On 4-12-1986 the assessee's other partner Shri Sanwalram was examined and he was asked since he was familiar with the contract work, whether it was customary in this type of work that only one man received payment for other labourers also and he replied in the affirmative. As mentioned earlier, the ITO had required the assessee vide notice dated 9-10-1986 to produce some of the labourers (whose names we have mentioned in para 2 of this order) and the reply dated 15-10-1986 of the assessee was that it was unable to produce those labourers since the execution of the work had been suspended and the labourers had migrated to other sites of work, they being casual and migratory. It is from the non-production of the labourers that the ITO took the view that the expenses under the head 'Wages' were bogus and inflated. In regard to the diesel expenditure also he entertained doubt since the assessee-firm did not own any vehicle. However, the statements of the Munims were that the muster roll was prepared on the basis of site diary which used to remain with the deceased Munim Sh. Rekhab Mai Nahar and, therefore, the ITO could not have drawn an adverse inference from its non-production by the assessee. The ITO had taken the view that the wage bills, had been considerably inflated and that fictitious names of wage earners had been added and false disbursement shown and claimed. He had also held that the account books did not reflect the correct state of affairs and that muster rolls and vouchers and payments included forged entries and that the expenditures had been inflated. As noticed above, the ITO had also observed that the expenses under the head Advertisement, Travelling, Transportation and Donation had either been inflated or no vouchers were available at all. This was thus the background in which on 5-1-1987 the ITO wanted to complete the assessment. Letters were given on behalf of the assessee as have been referred to above agreeing to the addition of Rs. 1 lakh. The amount of Rs. 1 lakh may have been estimated or arrived at in any way but it is clear that the surrender of this amount was accepted by the ITO since thereby the profit rate got raised to 11.51%. We have referred to the foregoing material only to appreciate the background in which the surrender was made because the assessee was not able to produce the labourers and the other expenses were being doubted by the ITO. As already observed by us above, the decision to agree to the addition of Rs. 1 lakh on the part of the assessee was consciously, voluntarily and willingly arrived at by the assessee and, therefore, it is not possible to enquire into the reasonableness of the same on the basis of audit, past history or comparable cases. The result is that the addition of Rs. 1 lakh cannot be interfered with on the above facts and in the foregoing background. We hold accordingly. From the above, it is observed that mainly there were three factors which weighed with the Assessing Officer and the assessee to agree on an addition of 1 lakh. The first was the n.p. rate of 9.5% declared by the assessee as against the normal rate of 10% in comparable cases. The second was that certain expenses, in the opinion of the Assessing Officer, were inflated and the third was the allegation of the wages bill being fake insofar as that only three persons received the payment as against 58 names shown in the muster roll. As regards the net profit rate and the expenses on travelling, transportation, advertisement, donation, etc., while agreeing with the concession of Rs. 1 lakh made by the assessee, the Assessing Officer expressed his satisfaction that this addition would raise the net profit rate to 11.51 % and he accordingly framed the assessment order. Thus so far as these two factors are concerned, which form part of the impugned addition, nowhere concealment is established. The addition, whatever part may be attributed to these factors, is mainly to take care of the possible leakages. But the Assessing Officer has not been able to establish any conscious concealment by the assessee on account of these two factors. Thus, addition may be sustained as it was agreed to by the assessee but there is nothing on record to suggest concealment or an attempt to evade tax by furnishing inaccurate particulars. The Assessing Officer's satisfaction that the addition would raise the net profit to 11.51 % does not tantamount to saying that the assessee had undisclosed income which was not recorded in the books. The addition on account of these reasons, therefore, does not, under any circumstances, attract penalty keeping in view the various principles laid down by the Courts. Taking up the matter of wages paid to alleged fictitious persons, first of all, the computation of penalty, if at all leviable, itself fails after having held that the entire addition is not on account of alleged bogus wages alone. For the sake of argument, if it is accepted that the wages paid are bogus, it is neither ascertained nor ascertainable, as to how much addition is attributable to it. 15. On merits also, the explanation of the assessee that it is customary to receive payment on behalf of others, cannot be brushed aside. Though there is no direct evidence for the same, yet it is not an impossibility and there is no improbability in it. It is particularly so when the Assessing Officer has not disputed about the work having been carried out. If we solely go by the forensic report, then it would lead to an absurd conclusion that only those labourers carried out contract work worth Rs. 51,56,471 which figure is not disputed. The preponderance is further strengthened by the fact that in the year under appeal total wages amounted to 20% of total contract receipts as against 54% in the preceding assessment year. Thus nowhere conscious concealment or furnishing of inaccurate particulars, with a view to defraud the revenue, get established. In all the authorities relied upon by the revenue, the glaring distinguishing feature was that the assessees admitted unequivocally of having earned income which was not disclosed and in most of the cases there was direct nexus of concealment with the material on record. Here, no such nexus has been established. It is evident from the background reproduced earlier that the surrender came in the wake of various factors which ultimately guided the assessee that it would be more at peace by paying some more tax rather than undergoing the exercise of establishing each payment. The Tribunal has given a clear finding to this effect in the quantum appeal and said that the surrender was made because the assessee was not able to produce the labourers and the other expenses were being doubted by the Assessing Officer. The assessee was naturally inclined to think that since it was not able to produce the labourers, it would be difficult to convince the Assessing Officer about the genuineness of the payments and hence thought it wise to agree to an addition of Rs. 1 lakh without conceding it to be its undisclosed income. The Assessing Officer, on his part, being satisfied with this concession, did not go further to establish any concealment and framed the assessment order on the very same day. Thus, in our opinion, the assessee duly discharged its burden of rebutting the presumption raised against it, but the Assessing Officer failed to do so when the burden shifted on him. Under the totality of the circumstances, therefore, we do not consider this to be a good case to attract penalty provisions. 16. Keeping in view the principles as discussed earlier and the facts and circumstances of the case, we cancel the penalty of Rs. 70,000 levied under Section 271(1)(c) of the Act. 17. In the result, the appeal is allowed.

Parasmal Parekh vs Assistant Commissioner Of ... on 9 October, 1995

Income Tax Appellate Tribunal - Jaipur

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C) No. 655 of 2004(Y) 1. P.C. VIJAYAN, POLICE CONSTABLE, PC 3721 ... Petitioner 2. P.K. ABDUL RASHEED, POLICE CONSTABLE, 3. G. SHENU, POLICE CONSTABLE, PC 3723, 4. M.N. SURESH KUMAR, POLICE CONSTABLE 5. A. HAMZAPPA, POLICE CONSTABLE, 6. P.N. RAJENDRAN, POLICE CONSTABLE, 7. K. AYYAPPANKUTTY, POLICE CONSTABLE, 8. A. ABDUL JABBAR, POLICE CONSTABLE 9. MOHAMMED RAFEEQ. A.A., POLICE CONSTABLE 10. MOHAMMED RAFEEDAN, POLICE CONSTABLE 11. C. SABARISAN, POLICE CONSTABLE, 12. YOUSUFF SIDDIQ, POLICE CONSTABLE, 13. M. AZIZ, POLICE CONSTABLE, PC 3709 14. C. ANIL KUMAR, POLICE CONSTABLE, PC 3755 15. K. KRISHNA NARAYANAN, POLICE CONSTABLE 16. T.P. ACHUTHANANDAN, POLICE CONSTABLE 17. V. KANNAN, POLICE CONSTABLE, PC 3729, 18. ROY GEORGE, POLICE CONSTABLE, PC 3731, 19. V. RADHAKRISHNAN, POLICE CONSTABLE 20. C.K. LAKSHMANAN, POLICE CONSTABLE 21. K.B. JAYAKUMAR, POLICE CONSTABLE 22. A.K. ASHRAF, POLICE CONSTABLE, PC 3707 23. P. BALASUBRAMANIAN, POLICE CONSTABLE, Vs 1. THE STATE OF KERALA REPRESENTD BY THE ... Respondent 2. THE SUPERINTENDENT OF POLICE, For Petitioner :SRI.P.R.VENKETESH For Respondent : No Appearance The Hon'ble MR. Justice KURIAN JOSEPH Dated :07/06/2007 O R D E R KURIAN JOSEPH J. ---------------------------------------------- W.P.(C) No.655 of 2004 ---------------------------------------------- Dated 7th June, 2007. J U D G M E N T The issue regarding pay protection of Head Constables transferred to AR camp is covered against the petitioners by the bench decision of this Court in W.P.(C) No.1785/04 and connected cases. The writ petition is hence dismissed. KURIAN JOSEPH, JUDGE. tgs  KURIAN JOSEPH, J. ---------------------------------------------- O.P. NO. OF 2003 ----------------------------------------------

P.C. Vijayan vs The State Of Kerala Representd By ... on 7 June, 2007

Kerala High Court

JUDGMENT D.A. Mehta, J. 1. The appellant revenue has proposed the following two questions: [1] Whether the Appellate Tribunal is right in law and on facts in holding that the provisions of Section 40A(3) of the Act would not be applicable in view of non-obstant clause of Section 44AD and thereby deleting the disallowance of Rs. 2,19,200/- made by the Assessing Officer? [2] Whether the Appellate Tribunal ought not have appreciated that the provisions of Section 40A(3) of the Act had over-riding effect with regard to certain expenses or payment not deductible in certain circumstances and, therefore, the disallowance made by the Assessing Officer was justified? 2. Mr. M.R.Bhatt, the learned senior standing counsel for the appellant has submitted that the Tribunal has erred in reading the provisions of Section 44AD of the Income Tax Act, 1961 (the Act). According to him, under Sub-section (1) of Section 44AD, when the assessing authority is required to take into consideration the two prescribed parameters, namely, (1) the figure of 8% of gross receipts, and (2) the returned income, at the time when the second figure is taken, the assessing authority is entitled to process the return and then arrive at the said figure and for this purpose, all the provisions of the Act have to be taken into consideration. In support of the proposition, he has also placed reliance on the opening portion of sub-section (1), which begins with a non-obstante clause, as well as sub-sections (2) and (3) of Section 44AD of the Act. 3. As can be seen on a plain reading of the provision, all that it requires is that, (1) an assessee must be engaged in the business of civil construction or supply of labour for civil construction, (2) in case of such an assessee, a sum equal to 8% of the gross receipts received or accrued to the assessee in the previous year, have to be compared with the sum declared by the assessee in his return of income, (3) then, the higher of the two figures has to be adopted for the purposes of assessing the assessee. The opening portion, namely, non-obstante clause, stipulates that, for the purposes of working out the figure of 8% of gross receipts, the provisions contained in sections 28 to 43C of the Act have to be ignored. The said provision, namely, the non-obstante clause, does not have any further role to play. Similarly, insofar as the return of income is concerned, it is the figure declared by the assessee, and that is what is stated by the provision, has to be adopted. No processing at that stage is permissible. Therefore, the provisions of Section 40A(3) of the Act cannot be pressed into service at this stage. 4. The stage at which sub-section (2) of Section 44AD of the Act can come into play is, after the higher of the two sums, namely, 8% of gross receipts or the sum declared in the return of income is arrived at. Sub-section (2) of Section 44AD of the Act envisages that once the said figure has been worked out, no further deduction as allowable under Sections 30 to 38 of the Act, is allowable. It is necessary to bear in mind that Section 40-A(3) of the Act does not operate as an independent provision. To recapitulate, Section 40A opens with the words the provisions of this section shall have effect notwithstanding anything to the contrary contained in any other provision of this Act relating to computation of income under the head `Profits and gains of business or profession'¬. Therefore, in case of any purchase price or any payment in cash, which is otherwise allowable under Section 37 of the Act or Section 28 of the Act, is proportionately disallowable if the conditions stipulated under Section 40A(3) of the Act stand satisfied. However, the said exercise is not permissible once the figure of 8% of gross receipt is found to be higher than the sum declared in the return. 5. Sub-section (3) of Section 44AD of the Act, instead of coming to the aid of the interpretation canvassed by revenue, indicates a contrary legislative intent. Despite the non-obstante provisions stated in sub-sections (1) and (2) of Section 44AD of the, sub-section (3) of the said provision stipulates that depreciation is deemed to have been claimed and granted in such circumstances. This is to obviate that, in the subsequent years, if provisions of Section 44AD are not invoked, there would be no dispute as to the written down value in relation to depreciable assets. 6. Therefore, there is no infirmity in the reading of the provision by the Tribunal so as to give rise to any substantial question of law. The appeal is accordingly dismissed.

Author: D Mehta

Commissioner Of Income Tax vs M.V. Construction Co. on 23 January, 2006

Gujarat High Court

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 25/07/2003 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM C.A.No.309 of 1996 1. Saroja 2. Muthusamy .. Appellants -Vs- State: represented by: Inspector of Police Sendamangalam Cr.No.319/94 of Puduchatram P.S. .. Respondent This criminal appeal is preferred under Sec.374 of The Code of Criminal Procedure against the judgment dated 27.3.1996 passed in S.C.No.3 /96 on the file of the Principal Sessions Judge, Salem. !For Appellants : Mr.K.V.Sridharan ^For Respondent : Mr.O.Srinath Government Advocate(Crl. Side) :JUDGMENT This appeal is brought forth by the accused 1 and 2 in a case of murder, wherein they stood charged and tried along with one Raju @ Samidurai as the third accused and A-1 and A-2 were found guilty under Ss 304(2) and 326 r/w 34 of I.P.C. and sentenced to undergo 3 years R.I. each under Sec.304(2) of I.P.C. and to undergo 1 year R.I. each under Sec.326 r/w 34 of I.P.., and the third accused was acquitted of all the charges levelled against him. 2. The short facts necessary for the disposal of this appeal can be stated as follows: (a) P.W.1 Pavayee and her deceased husband Perianna Gounder were residing at Iyer Thottam, Kannoorpatti. The first appellant/A-1 was the brother-in-law, while the second accused was the father of the first accused. The third accused was the younger brother of the first accused. The son of P.W.1 one Palanivelu married one Rajammal. After a divorce, he married A-1 10 years prior to the occurrence. Palanivelu and the first accused lived only for a period of six months, and due to strained relationship, A-1 left her matrimonial home and was living with her parents. A male child was born to A-1 through her husband Palanivelu. Six months prior to the date of occurrence, the accused made a demand to P.W.1 and the deceased in respect of partition of the family properties. The deceased informed them that he would effect partition only after the minor son of A-1 attained majority. On the date of occurrence namely 16.7.94 at about 11.00 A.M. at Kannoorpatti while P.W.1 and her husband the deceased Perianna Gounder were working in their field, A-1 to A-3 came there and demanded for partition. The deceased Perianna Gounder gave the very same answer what he was telling earlier. A wordy quarrel arose. Following the same, A-1 to A-3 pelted stones on P.W.1 and the deceased Perianna Gounder. P.W.1 and her husband tried to escape from there and rushed towards their house. A-1 to A-3 chased P.W.1 and Perianna Gounder, took cart pegs found in front of their house, beat them indiscriminately on different parts of their body with an intention of causing death. The deceased and P.W.1 sustained grievous injuries. (b) Perianna Gounder and P.W.1 were taken to the Government Hospital, Rasipuram, and they were medically treated by P.W.5 Dr.Premavalli. At 6.00 P.M. Perianna Gounder died. P.W.1 was sent to the Government Hospital, Salem, where she was given further treatment. An intimation was given to the Rasipuram O.P. and in turn to Puduchatram P.S. P.W.11 Periannan, Sub Inspector of Police, proceeded to the Government Hospital, Rasipuram, where he came to know that P.W.1 was sent to the Government Hospital, Salem. He proceeded to the Government Hospital, Salem and recorded the statement of P.W.1 marked as Ex.P1. On the strength of the said Ex.P1 statement, he registered a case in Crime No.319/94 under Ss 302 r/w 34 and 325 r/w 34 of the Indian Penal Code against all the three accused. Ex.P19 printed F.I.R. was despatched to the concerned Judicial Magistrate's Court, while the copies were sent to the higher officials. P.W.12 Rajarathinam, Inspector of Police, attached to Namakkal Police Station, on receipt of the F.I.R. took up the investigation of the case, proceeded to the site of occurrence, made an inspection and prepared Ex.P3 observation mahazar in front of the witnesses and Ex.P20 rough sketch. Photographs were t aken in respect of the site of occurrence. M.O.2 (series) cart pegs, M.O.4 bloodstained earth and M.O.5 sample earth all were recovered under Ex.P4 mahazar, while M. O.1 (series) stones was recovered under Ex.P5 mahazar. P.W.12 examined the available witnesses there. He proceeded to the Government Hospital, Rasipuram, where he conducted inquest on the dead body of Perianna Gounder in the presence of the witnesses and panchayatars and prepared an inquest report under Ex.P21. (c) On the strength of a complaint given by the first accused, a case in Crime No.320/94 under Ss 325 and 323 of I.P.C. was registered in Puduchatram Police Station. P.W.12 took a copy of the F.I.R. The Investigating Officer took up the investigation in that case along with the instant case. At the time of investigation, the Investigating Officer found that the case in Crime No.320/94 was referable as one mistake of fact. The proceedings in respect of Crime No.320/94 were marked as Ex.P24. The refer notice of the same was also served on the first accused. (d) A requisition was sent to P.W.7 Dr.Varadarajulu attached to the Government Hospital, Rasipuram for conduct of the autopsy on the dead body of Perianna Gounder through P.W.9 Kuppusamy, Constable. Accordingly, P.W.7 Doctor conducted autopsy on the dead body of Perianna Gounder and has issued Ex.P12 postmortem certificate, wherein the injuries were narrated as follows: External Examination: 1) Lacerated injury of 3 x 1 cm x Bone depth over the left side of frontal region. The outer vertex of the bone is fractured. 2) Black eye on left side. 3) Lacerated injury of 2 x 1 cm x bone depth over the floor of the left nostril. 4) Lacerated injury of 4 x 1 cm x bone depth over upper of left leg with abnormal mobility. 5) Lacerated injury of 4 x 1 cm x bone depth with abnormal mobility in upper 1/3 of right leg. Internal Examination: 1) Fracture of left frontal bone for about 7 cm. 2) 100 ml of fluid blood over left cerebral hemisphere. 3) Fracture of foot of the left orbital cavity. 4) On dissection Ext. injury of 5: Haemo arthrosis of right knee joint with 200 ml of fluid blood inside the joint cavity and all the ligaments torn off. 6) All visceral organs pale. Stomach empty. Bladder empty. Hoid intact. The Doctor has opined that the deceased would have died of the cumulative effect of shock and haemorrhage and head injury. (e) The Investigating Officer examined P.Ws.1 and 3 and other witnesses and recorded their statements. He also examined the Constables. He arrested A-1 and A-2 who were taking treatment at the Government Hospital, Namakkal. The accused were remanded to judicial custody. The third accused was arrested on 21.7.94 . P.W.13 Sivagami, Inspector of Police took up further investigation, recorded the statements of P.Ws.5 to 7 and filed a charge sheet against the accused on completion of the investigation. 3. In order to prove the charges levelled against the appellants ranked as A-1 and A-2 and the third accused, the prosecution examined 13 witnesses and marked 24 documents and 6 material objects. After the evidence of the prosecution was over, the accused were questioned under Sec.313 of Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses, and they flatly denied the same as false. 3 exhibits were marked on the side of the defence. On consideration of the rival submissions made and scrutiny of the available materials, the trial Court found both the appellants/A-1 and A-2 guilty under Se 304(2) and 326 read with 34 of The Indian Penal Code and awarded the sentence as referred to above, while the third accused was acquitted of the charges framed against him. Aggrieved A-1 and A-2 have brought forth this appeal. 4. Advancing his arguments on behalf of the appellants, the learned Counsel interalia made the following submissions for the consideration of this Court: The prosecution relied on the evidence of P.Ws.1 to 3. P.W.3 was treated hostile. The lower Court has clearly pointed out that the evidence of P.W.2 was not at all reliable, and thus, what was available for the prosecution is the evidence of P.W.1. P.W.1 was an injured and interested also. The evidence is available to indicate that they were on inimical terms with the accused for long number of years. The evidence would clearly indicate that the occurrence could not have taken place as put forth by the prosecution. The first complaint given by P.W.1 was suppressed by the prosecution, and thus, the alleged first information report before the trial Court was only the second information, which should have been rejected outright. In the same transaction, A-1 and A-2 sustained injuries. They were treated by P.W.8 Doctor Vishnuram, who has clearly deposed that the injuries sustained by A-1 was grievous. The prosecution has in no way explained the said injuries. But, the trial Court has made an attempt to explain the injuries in its own way. Immediately after the occurrence, the accused have gone to the Police Station. The prosecution marked Ex.P22 as if it was the complaint lodged by A-1 in the Police Station. But, the lower Court has clearly pointed out that it was not the complaint given by the first accused, and hence, it would also show that the complaint given by the first accused is also suppressed by the prosecution. There was an inordinate delay in making the complaint, since the occurrence has taken place at 11.00 A.M. on 16.7.94, but, the case was registered at 3.15 A.M. the next day namely 17.7.94. The prosecution has not even made an attempt to explain the said delay. Without proper investigation, the Investigating Officer has brushed aside the complaint given by the first accused as mistake of fact, which would clearly show that the investigation in the instant case could not have been fairly done, and hence, in view of all the above, the lower Court should have outrightly rejected the prosecution case, and thus, the appellants are entitled for an acquittal. 5. Strongly opposing all the contentions put forth by the appellants' side, the learned Government Advocate (Criminal side) with vigour and vehemence in his sincere attempt to sustain the conviction and sentence recorded by the Court below would submit that P.W.1 was not only an eyewitness to the occurrence, but she has sustained injuries; that she has given cogent and acceptable evidence, and her evidence has inspired the confidence of the trial Court; that apart from that, it was also corroborated by the medical evidence; that it is true that a complaint was given by the accused; that the prosecution has not suppressed anything in that regard, since the investigation agency has registered the case immediately as found under Ex.P22, proceeded with the investigation, enquired the witnesses and found it was one to be referred as mistake of fact, and this fact has been clearly spoken to by the Investigating Officer in his evidence, and hence, the contention of the appellants' side that the material in respect of the F.I.R. and the other materials in that regard have been suppressed was not called for; that there was no delay in lodging the complaint; that even if there was any delay, that has taken place in the ordinary course of events; that it is true that the injuries were found on A-1 and A-2 as spoken to by P.W.8 Doctor, who gave them treatment; that the prosecution has examined the medical person and has also filed the wound certificates in that regard; that the lower court has clearly pointed out that those injuries could have been sustained by the accused only after they made attack on the deceased and P.W.1; that even in their statements under Sec.313 of Cr.P.C., the accused have admitted their presence at the place of occurrence, the demand made by them for maintenance and the mutual attack on both sides, which would also indicate that the injuries caused to the accused has happened in that manner as spoken to by the accused at the time of questioning, and hence, it cannot be stated that the prosecution has not explained the injuries caused on the accused. Added further the learned Government Advocate that in view of the available evidence, which was acceptable and satisfactory, the lower Court has found them guilty under the respective provisions of the Penal Code and sentenced to undergo imprisonment, and hence, the judgment of the lower Court has got to be sustained. 6. After careful analysis of the evidence available and consideration of the rival submissions, this Court has to necessarily agree with the contentions put forth by the appellants' side. 7. The gist of the prosecution case as stated above, was that on the date of occurrence on 16.7.1994 at about 11.00 A.M., when P.W.1 and the deceased, her husband, were working in the field, A-1 to A-3 went over there and made a demand for partition, and followed by a wordy quarrel, the accused pelted stones on P.W.1 and the deceased Perianna Gounder; that they ran from the scene of occurrence; that the accused chased them and attacked them with stones and caused injuries, as a result of which Perianna Gounder died at 6.00 P.M. that day and P.W.1 who sustained injuries had medical treatment. In order to prove the case, the prosecution relied on the prime evidence namely P.W.1 as injured and P.Ws.2 and 3 as eyewitnesses. P.W.3 has turned hostile. The lower Court has clearly pointed out that the evidence of P.W.2 cannot be relied on, since it is not acceptable. Therefore, what was available for the prosecution was the evidence of P.W.1. It is an admitted position that the accused were treated by P.W.8 Doctor, who has deposed that he noticed the grievous injury on A-1, and he has also given certificates to that effect. P.W.1 either in the complaint given by her, on the basis of which a case was registered, or before the Court in evidence has not uttered even a single word about the injuries on the accused and how they were caused to A-1 in the said transaction, and thus, it would be clear that the grievous injuries noticed by the Doctor, which according to the prosecution happened in the same transaction, remained unexplained, as rightly pointed out by the learned Counsel for the appellants. 8. Secondly, the occurrence has taken place at about 11.00 A.M. P. W.1 has categorically admitted that when she was taken to the Government Hospital, Rasipuram, the police came there and enquired her. It is pertinent to note that it is a case where according to the prosecution, the deceased Perianna Gounder was severely injured, and he died at 6.00 P.M. Under such circumstances, one would expect the police officials to record a statement. While P.W.1 has come forward to state that she was enquired by the police at the Government Hospital, Rasipuram, neither the prosecution has come forward to bring forth the said complaint given by her, nor the Sub Inspector of Police has come forward to state that he made an enquiry on P.W.1 at the Government Hospital, Rasipuram. But, the Sub Inspector of Police has deposed that when on receipt of the intimation he went to the Government Hospital, Rasipuram, he was informed that P.W.1 was taken to the Government Hospital, Salem, and then, he proceeded there and recorded Ex.P1 statement, on the strength of which a case has been registered. All the above would cast a doubt whether Ex.P1 is the first statement given by P.W.1 at the Government Hospital, Salem. This doubt is not cleared by the prosecution. 9. Pursuant to the occurrence that took place at about 11.00 A.M., the deceased and P.W.1 were taken to the Government Hospital, Rasipuram, but, the case was registered at 3.15 A.M. the next day with a delay of nearly about 15 hours. It is pertinent to note that though the nearby Police Station is situated within 4 kilometers, such a delay was caused. The prosecution has not made any attempt to explain the same. The Court is of the view that the said delay would affect the case of the prosecution fatally. 10. According to the prosecution, Ex.P22 was the complaint given by the first accused to the police officials, on the strength of which a case was registered. It was contended by the appellants that Ex.P22 was not the complaint given by A-1, but, the original complaint given by A-1 has been suppressed. The learned Counsel for the appellants brought to the notice of the Court, the comment made by the trial Court that Ex.P22 could not have been the complaint given by the first accused. Hence, it goes without saying that the first complaint given by A-1 has also been suppressed for the reasons best known to the investigation agency. 11. Regarding the credit worthiness of the evidence of P.W.1, the lower Court has clearly made a comment, but it was otherwise. The death of Perianna Gounder out of homicidal violence is, therefore, not a fact in doubt. However, the fact as to how it happened or the manner in which the prosecution projected the case, is not proved before the trial Court beyond reasonable doubt. In such circumstances, it would be highly unsafe to sustain a conviction on the uncorroborated testimony of P.W.1, since the credit worthiness of her evidence is doubtful and questionable, according to the trial Court. Hence, without any hesitation, the Court has to set aside the judgment of the Court below. The Court is of the considered view that the appellants/A-1 and A-2 deserve acquittal of the charges levelled against them. 12. In the result, this criminal appeal is allowed, setting aside the judgment of the lower Court. The appellants/A-1 and A-2 are acquitted of the charges levelled against them. The bail bonds, if any, executed by the appellants/A-1 and A-2 shall stand cancelled. Index: Yes Internet: Yes To: 1) The Judicial Magistrate No.II, Namakkal. 2) The Judicial Magistrate No.II, Namakkal Thro' The Chief Judicial Magistrate, Salem. 

Saroja vs State: Represented By: on 25 July, 2003

Madras High Court

JUDGMENT Tare, C.J. 1. This opinion shall govern the disposal of this Letters Patent Appeal as also the Second Appeal No 91 of 1966 -- (Durgaprasad v. Chunnilal). 2. The present Letters Patent Appeal has been referred to this Court for decision of the entire appeal by a Division Bench of this Court, by order, dated 31-3-1971, as also for decision of the question whether a Bhumiswami under the Madhya Pradesh Land Revenue Code, 1959, is a tenure holder within the meaning of Section 4 of the Hindu Succession Act. 1956. That question is also involved in Second Appeal No. 91 of 1966 (Madh Pra). Therefore, by this opinion, we propose to decide that question and later on, we propose to decide the Letters Patent Appeal on merits. On expression of the opinion on the question referred Second Appeal No. 91 of 1966, will have to so back to the Single Bench for decision on merits in accordance with the opinion of this Full Bench. Along with these two cases. Second Appeal No. 447 of 1966 (Madh Pra) -- (Smt. Rangu v. Anji) had already been referred to this Full Bench for opinion on the question relating to Section 164 of the Madhya Pradesh Land Revenue Code. 1959. However, in that case it was found that the appellants and respondents were remoter heirs and the deceased. Krishnarao had left a son, whose existence was disclosed during the pendency of the case before this Full Bench. Therefore, the decision of the question referred was more or less of an academic nature and consequently, by order, dated 25th September 1973, we allowed that appeal and dismissed the plaintiffs' suit holding that the plaintiffs and defendants had no right to the property left by the deceased Krishnarao, whose son is living. In the presence of the son other remoter heirs could have no claim to the property of the deceased. 3. In the Letters Patent Appeal, one more question of law is involved namely, whether under Section 164 as it stood then, the female mentioned in Subsection (2) of Section 164 of the M. P. Land Revenue Code. 1959, was a female who had herself inherited the property under Sub-section (1) of that Section. For that reason the entire case was referred to this Full Bench for decision on merits as well. 4. For the purpose of giving our opinion whether a Bhumiswami under the M. F. Land Revenue Code, 1959, is a tenure holder within the meaning of Section 4 of the Hindu Succession Act, 1956, it is not necessary for us to state the facts of the two cases in details. But we may have to take note of the trend of decisions on this point with reference to the provisions of the M. P. Land Revenue Code, 1959, and the Hindu Succession Act. 1956. We shall come to facts when we decide the Letters Patent Appeal on merits. 5. The M. P. Land Revenue Code, 1959, came into force on 2-10-1959. Before that the M. P. Land Revenue Code. 1954 (Act No. 2 of 1955) came into force on different dates. Section 1 and Section 242 of the Act came into operation immediately, i. e. on publication of the Act in the M, P. Gazette (Extraordinary) dated 12-2-1955, and the remaining Sections were to come into force from such date as the State Government might by Notification appoint. The appointed date was 1-10-1955. The said Act contemplated two kinds of tenure holders, as per Section 145 of that Act namely, (i) Bhumiswami and fill Bhumidhari. Section 146 of the Act defines a 'Bhumiswami' to mean every person, who at the coming into force of this Code belonged to any of the following classes and he was to have all the rights and be subject to all the liabilities conferred or imposed upon a Bhumiswami by or under the Code, namely:-- (a) Every person in respect of land held by him as a malik-makbuza or a plot proprietor in the Central Provinces or the merged territories; (b) Every person in respect of land lawfully held by him as house site in abadi in the Central Provinces or the merged territories; (c) Every person in respect of land held by him as a raiyat malik in the Central Provinces; (d) Every person in respect of land held by him as an absolute occupancy tenant in the Central Provinces; (e) Every person in respect of land held by him as an occupant in Berar; (f) Every person in respect of land held by him as an ante-alienation tenant or a tenant-of-antiquity' in Berar in respect of which he has become lessee of the State under Sub-section (2) of Section 68 of the Madhya Pradesh Abolition of Proprietary Rights (Estates Mahals Alienated Lands) Act. 1950. Section 147 of the said Code defines a 'Bhumidhari' as under:-- Every person who at the coming into force of this Code belonged to any of the following classes shall be called a Bhumidhari and shall have all the rights and be subject to all the liabilities conferred or imposed upon a Bhumidhari by or under this Code, namely:-- (a) every person in respect of land held by him as an occupancy tenant in the Central Provinces; (b) every person in respect of land held by him as a raiyat or raiyat sarkar in the Central Provinces; (c) every person in respect of land held by him as a raiyat or tenant in the merged territories; (d) every person in respect of land held by him as a lessee of the State Government under Sub-section (2) of Section 68 of the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals. Alienated Lands) Act. 1950, not falling under Clause (f) of Section 146. Section 148 of the Code provided that every Bhumiswami or every Bhumidhari was liable to pay land revenue-- (a) if he was paying land-revenue in respect of the lands held by him -- such land-revenue, and (b) if he was Paying rent in respect of the lands held by him -- an amount equal to such rent. 6. Therefore, from the said provisions it is clear that the phrase 'tenure holder' included not only Bhumiswamis, who were akin to plot-proprietors or raiyat malik, but also Bhumidharis, some of whom were at least considered to be tenants under the C. P. Tenancy Act, 1920. Bhumidharis had lesser rights. However. Section 150 of the Code provided that they could acquire Bhumiswami rights by applying to the Revenue Officer by filing an application and by depositing three times the revenue assessed on the holding. Section 151 of the Code regarding devolution of the rights of the tenure holder was the subject-matter of several decisions of this Court as also the Bombay High Court. For the sake of convenience we might reproduce the said section, which is as follows:-- "Section 151-- Subject to his personal law. the interest of a tenure holder shall on his death pass by inheritance survivorship or bequest, as the case may be." Therefore, it is clear that the said section contemplated devolution of the rights of the tenure holder, which would include devolution of the tenancy rights as well. It is this scheme of the said Code, which would be material for consideration of the instant question referred to this Full Bench. Presently, we propose to consider the provisions of the M. P. Land Revenue Code. 1959. But before that, we may refer to the divergent opinion expressed in some cases. 7. In Bhagatram v. Sitaram. C. R. No. 513 of 1958 D/- 12-8-1959 (Madh Pra) decided by P. R. Sharma. J. and Bhondu v. Mira, S. A. No. 512 of 1958 D/- 28-10-1951 (Madh Pra), decided by one of us, namely. Tare J., it was held that the personal law mentioned in Section 151 of the M. P. Land Revenue Code. 1954, would be the Hindu Law as amended by the Hindu Succession Act, 1956. However, when the matter came up for consideration before K. L Pandey J. in Kumari Ramlali v. Mst. Bhaguntibai. C. A. No. 69 of 1963 D/-6-4-1965 (Madh Pra), the learned Judge did not accept the view as propounded by the other Single Judges of this Court and purported to follow the view as expressed by Vyas. J. of the Bombay High Court in Sitabai v. Kothulal Lodhi, AIR 1959 Bom 78. wherein Vyas. J. with reference to Section 151 of the M. P. Land Revenue Code. 1954, held that the personal law contemplated in that Section would mean the personal law prevailing on the date the M. P. Land Revenue Code, 1954, was enacted and not the personal law as may be amended from time to time. In that view Vyas, J. held that the Hindu Succession Act, 1956, would altogether be out of consideration for ascertaining the devolution of interest of a tenure holder and the learned Judge held that so far as the law regarding the devolution of tenancy rights in respect of agricultural holdings among Hindus was concerned, the principle of reversion still holds good notwithstanding the enactment of the Hindu Succession Act. 1956. In that view, the suit filed by the reversioner was held tenable by the learned Judge. 8. However, that view of Vyas. J. did not find favour before a Division Bench of the Bombay High Court in Smt. Indubai Naik v. Vyankati Vithoba, AIR 1966 Bom 64. Although the learned Judges constituting the Division Bench overruled the case decided bv Vyas. J. by holding that the personal law applicable to devolution of tenure holder's right would be the law as amended subsequently by the Hindu Succession Act. 1956, yet in the opinion of the learned Judges of the Division Bench. Section 4(2) of the Hindu Succession Act. 1956, contemplated a law for devolution of tenancy rights and in the opinion of the Division Bench, the M. P. Land Revenue Code. 1954, was not a tenancy legislation, the exception made in Section 4 (2) of the Hindu Succession Act. 1956, will not be applicable. Thus, the Division Bench laid down two propositions, one was that the personal law as amended from time to time will be applicable when the question of devolution comes up for consideration and the question of devolution cannot be decided merely with reference to the personal law existing at the commencement of the M P. Land Revenue Code, 1954, and secondly, the M. P. Land Revenue Code. 1954, not providing for devolution of tenancy rights, but for devolution of tenure holder's rights. Section 4(2) of the Hindu Succession Act, 1956, would not at all be attracted. 9. However, when the case of C. A. No. 69 of 1963, D/- 6-4-1965 (Madh Pra) (supra), decided by K. L. Pandey, J., came up for consideration before a Division Bench of this Court in a Letters Patent Appeal, reported as Kumari Ramlali v. Mst. Bhaguntibai, AIR 1968 Madh Pra 247, Dixit, C. J., and Bhave, J., held that the personal law referred to in Section 151 of the M. P. Land Revenue Code, 1954, would mean the personal law applicable as on the date when the succession opened and not the personal law as it existed on the date of commencement of the said Code. The Division Bench preferred the view expressed in the Division Bench case of the Bombay High Court in AIR 1966 Bom 64 (supra) and dissented from the view of Vyas, J., expressed in AIR 1959 Bom 78 (supra). Similarly, the view as expressed in the Single Bench decisions of this Court was also approved. However, as regards the applicability cf Section 4(2) of the Hindu Succession Act, 1956, the Division Bench laid down that the same contemplates the law relating to devolution of tenancy rights and not the rights of tenure holders and in that view, Section 151 of the M. P. Land Revenue Code, 1954, cannot be said to be dealing with devolution of interest of tenancy rights, but it relates to devolution of tenure holder's rights. It is this aspect particularly which was made the subject-natter of arguments before the Full Bench and the learned Counsel for the appellants criticised this view saying that there is no real distinction of this sort as the M. P. Land Revenue Code, 1954, and the M. P. Land Revenue Code, 1959, have made provision not only for tenure holders rights, but also for devolution of tenancy rights. According to the learned Counsel, the phrase 'devolution of tenancy rights' occurring in Section 4(2) of the Hindu Succession Act, 1956, has been used in a broad and comprehensive sense so as to include all legislations providing for devolution of land tenures and not necessarily restricted to devolution of rights of persons, who might be considered to be tenants under any Land Revenue or Tenancy Act. It is, therefore, necessary for us to examine this aspect. 10. Before examining this question, especially with reference to the provisions of the M. P. Land Revenue Code, 1959, we may advert to a Supreme Court decision wherein their Lordships had to construe the word 'estate' occurring in Article 31A(2)(a) of the Constitution of India with reference to the Kerala Agrarian Relations Act, 1961, wherein their Lordships made the following observations; in Purushothaman Nambudiri v. State of Kerala, AIR 1962 SC 694: "In this connection it is pertinent to re-member that the Constitution-makers were aware that in several local areas in the country where the zamindari tenure did not prevail the expression "estate" as defined by the relevant law included estates which did not satisfy the requirement of the presence of intermediaries, and yet Clause (2) (a) expressly includes estates in such areas within its purview and that incidentally shows that the concept of "estate" as contemplated by Clause (2) (a) is not necessarily conditioned by the rigid and inflexible requirement that it must be landlord-tenure of the character of zamindari estate. That is why, treating the expression "estate" as of wide denotation in every case we will have to enquire whether there is a local definition of "estate" prevailing in the relevant existing law; if there is one that would determine the nature of the property. If there is no definition in the relevant existing law defining the word "estate" as such, we will have to enquire whether there is a local equivalent, and in that connection it would be necessary to consider the character of the given argicultural property and its attributes and then decide whether it can constitute an estate under Clause (2) (a). If the expression "estate" is construed in the narrow sense in which the petitioner wants it to be construed then it may not be easy to reconcile the said narrow denotation with the wide extent of the word "estate" as is defined in some local definitions of the word "estate". Therefore, in deciding the question as to whether the properties of the petitioner are an "estate" within the meaning of Article 31A(2)(a) we are not prepared to adopt the narrow construction that the estate must always and in every case represent the estate held by zamindars or other similar intermediaries who are the alienees of land revenue." Further on, their Lordships observed as follows in para 24 of the majority decision: "It is necessary therefore to have some basic idea of the meaning of the word "estate" as used in Article 31A(2)(a). As we have said already where the word "estate" as such is used in the existing law relating to land tenures in force in a particular area, there is no difficulty and the word "estate" as defined ia the existing law would have that meaning for that area and there would be no necessity for looking for a local equivalent. But where the word "estate"' as such is not defined in an existing law it will be necessary to see if some other term is defined or used in the existing law in a particular area which in that area is the local equivalent of the word "estate". In that case the word "estate" would have the meaning assigned to that term in the existing law in that area. To determine therefore whether a particular term defined or used in a particular area is the local equivalent of the word "estate" as used in Article 31A(2)(a) it is necessary to have some basic concept of the meaning of the word "estate" as used in the relevant Article of the Constitution. It seems to us that the basic concept of the word "estate" is that the person holding the estate should be proprietor of the soil and should be in direct relationship with the State paying land revenue to it except where it is remitted in whole or in part. If, therefore, a term is used or defined in any existing law in a local area which corresponds to this basic concept of "estate" that would be the local equivalent of the word "estate" in that area. It is not necessary that there must be an intermediary in an estate before it can be called an estate within the meaning of Article 31A(2)(a); it is true that in many cases of estates such intermediaries exist, but there are many holders of small estates who cultivate their lands without any intermediary whatever. It is not the presence of the intermediary that determines whether a particular landed property is an estate or not; what determines the character of such property to be an estate is whether it comes within the definition of the word "estate" in the existing law in a particular area or is for the purpose of that area the local equivalent of the word "estate", irrespective of whether there are intermediaries ia existence or not. This, in our opinion, is also borne out by consideration of the relevant decisions of this Court to which we will now turn." 11. Thus, their Lordships held that purport of the Kerala Agrarian Relations Act, 1961, was to alter the rights conferred by Proclamation of Cochin (1905), vide clauses 13 and 14 and to confer on the holding of Pandaravaka Verumpattom tenure holder better rights from that of a tenant into that of a proprietary holder and in that view, their Lordships held that Pandaravaka Verumpattom would be regarded as a local equivalent of an estate under Clause (2) (a) of Article 31A of the Constitution of India. 12. We may then advert to the relevant provisions of the M. P. Land Revenue Code, 1959, Chapter XII relates to tenure-holders. The two classes of tenure-holders, namely, Bhumiswami and Bhumidhari in the M. P. Land Revenue Code, 1954, were made into one class of tenure-holders, known as Bhumiswami by virtue of Section 157 of the new Code. Section 158 provided for different classes of persons, who would become 4 Bhumiswamis. The said section is as follows:-- "Section 158. Bhumiswami -- Every person, who at the time of coming into force of this Code, belongs to any of the following classes shall be called a Bhumiswami and shall have all the rights and be subject to all the liabilities conferred or imposed upon a Bhumiswami by or under this Code, namely:-- (a) every person in respect of land held by him in the Mahakoshal region in Bhumiswami or Bhumidhari rights in accordance with the provisions of the Madhya Pradesh Land Revenue Code, 1954 (II of 1955); (b) every person in respect of land held by him in the Madhya Bharat region as a Pakka tenant or as a Muafidar, Inamdar, or Concessional holder, as defined in the Madhya Bharat Land Revenue and Tenancy Act, Samvat 2007 (66 of 1950): (c) every person in respect of land held by him in the Bhopal region as an occupant as defined in the Bhopal State Land Revenue Act, 1932 (IV of 1932); (d) (i) every person in respect of land held by him in the Vindhya Pradesh region as a Pachpan Paintalis tenant, Patedar tenant, a grove holder or as a holder of a tank as defined in the Vindhya Pradesh Land Revenue and Tenancy Act, 1953 (III of 1955); (ii) every person in respect of land other than land which is a grove or tank or which has been acquired or which is required for Government or public purposes held by him in the Vindhya Pradesh region as a Gair Haqdar tenant and in respect of which he is entitled to a Patta in accordance with the provisions of Sub-section (4) of Section 57 of the Rewa State Land Revenue and Tenancy Code, 1935; (iii) every person in respect of land held by him as a tenant in the Vindhya Pradesh region and in respect of which he is entitled to a Patta in accordance with the provisions of Sub-sections (2) and (3) of Section 151 of the Vindhya Pradesh Land Revenue and Tenancy Act, 1953 (III of 1955), but has omitted to obtain such Patta before the coming into force of this Code; (e) every person in respect of land held by him in Sironj region as a Khatedar tenant or as grove holder as defined in the Rajasthan Tenancy Act, 1955 (3 of 1955);" 13. Thus, Bhumiswamis under the new Code would encompass not only plot-proprietors, but also persons who were considered to be tenants previously. Thus, Bhumiswami under Section 158 of the M. P. Land Revenue Code, 1959, comprises of all categories, whether plot-proprietors or tenants and they are made into a single category of tenure-holder. 14. Section 164 of the said Code provides for devolution. The section as it originally stood with which we are concerned was as follows:-- "164. Devolution. -- (1) Notwithstanding any law, custom or usage to the contrary the interest of a Bhumiswami shall on his death devolve in accordance with the order of succession given below:-- Class I -- Son, predeceased son's son, son of a predeceased son's predeceased son, widow or husband as the case may be, predeceased son's widow, widow of a predeceased son's predeceased son and widow of a predeceased son's predeceased sons's predeceased son. Explanation I -- A grand son whose father is dead and great grandson whose father and grandfather are both dead shall inherit equally with the son. Explanation II -- The widow of the deceased or if there are more widows than one, all bis widows together shall take the same share as that of a son. The widow of a predeceased son shall inherit in the manner as a son if there is no son surviving of such predeceased son, and in the like manner as a son's son, if there is surviving a son or a son's son of such predeceased, son. The same rule shall apply mutatis mutandis to the widow of a predeceased son of a predeceased son. Class II -- Daughter. Class III -- Father. Class IV -- Mother (if she is a widow). Class V -- Step mother (if she is a widow). Class VI -- Brother of the whole blond. Class VII -- Brother of the half blood (being a son of the same father). Class VIII -- Daughter's son. Class IX -- Brother's son. Class X -- Brother's sons' son. Class XI -- Father's father. Class XII -- Father's mother (if she is a widow). Class XIII -- Sister. Class XIV -- Sister's son. Class XV -- Paternal uncle (father's brother). Class XVI -- Paternal uncle's son (father's brother's son). Class XVII -- Paternal uncle's son's son. Class XVIII -- Father's father's father. Class XIX -- Father's father's mother (if she is a widow). Class XX -- Father's paternal uncle. Class XXI -- Father's paternal uncle's son. Class XXII -- Father's paternal uncle's son's son. Explanation -- (1) If there are more heirs than one of the same class, other than Class I, who shall inherit per stirpes, all shall share equally. (2) Notwithstanding anything contained in Sub-section (1) where the interest of a Bhumiswami is inherited by a female:-- (a) from her father or mother, such interest on the death of the female shall, in the absence of her heirs of Class I or Class II of the order of succession specified in Sub-section (1), devolve upon the nearest surviving heir of her father as ascertained in accordance with the provisions of Subsection (1). (b) from her husband or her father-in-law such interest on the death of the female shall, in the absence of her heirs of Class I or Class II of the order of succession specified in Sub-section (1), devolve upon the nearest surviving heir of her husband as ascertained in accordance with the provisions of Sub-section (1).' (c) as a widow, mother, father's mother or father's father's mother such interest shall, on her remarriage, devolve upon the nearest surviving heir of the last male holder of such interests as ascertained in accordance with the provisions of Sub-section (1). (3) Where the total area of land in possession of a Bhumiswami together with the land which he is entitled to inherit under this section exceeds the prescribed ceiling limit, so much of the inheritable land as makes the total exceed the prescribed ceiling limit shall after selection by the Bhumiswami and demarcation in the prescribed manner devolve upon the other heirs of the propositus as ascertained in accordance with the provisions of Sub-section (1)." 14-A. However, this section was repealed by the M. P. Land Revenue Code (Amendment) Act No. 38 of 1961, which came into force with effect from 8-12-1961 and again the personal law was made applicable to devolution of Bhumiswami rights and property of the Bhumiswami after his death is to pass by inheritance, survivorship or bequest, as the case may be. However, we are not concerned with the law as amended by Act No. 38 of 1961, but by the original provision which remained in force till 8-12-1961. 15. The counsel for both the parties agreed that in the Letters Patent Appeal as Mst. Dukalhin remarried on 31-3-1960, succession to her would have to be traced out in accordance with Section 164 of the M. P. Land Revenue Code, 1959, as it originally stood before the said amendment. Similarly it was also agreed by the learned Counsel for both the parties in Second Appeal No. 91 of 1966 that Sukhiram died on 19-2-1961 and that would be the relevant date when succession to her would have to be traced out. Thus, this position is not disputed that both these cases are governed by the original Section 164 of the M. P. Land Revenue Code, 1959, as it originally stood, provided that notwithstanding any law, custom or usage to the contrary, the interest of a Bhumiswami would devolve in accordance with the table of heirs given in that Section. This would necessarily mean that the provisions of any other enactment, including the personal law, would not apply to devolution of interest of a Bhumiswami and such question would have to be decided according to the table of heirs given in the said Section and not otherwise. 16. We may then consider the Division Bench case of AIR 1968 Madh Pra 247. We may also observe that a similar view was taken by another Division Bench in Heeralal v. Smt. Budhivarin, F. A. No. 13 of 1964, D/- 12-3-1968 (Madh Pra). In that case the Division Bench, presided over by T. C. Shri-vastava and G. P. Singh, JJ., held that Bhumiswami rights could not be equated with tenancy rights as Section 4(2) of the Hindu Succession Act, 1956, put devolution of tenancy rights only outside the purview of that Act, the said section would not apply to Bhumiswami rights and consequently devolution of Bhumiswami rights would be governed by the Hindu Succession Act, 1956. For that proposition the Division Bench relied on the Division Bench case of the Bombay High Court in AIR 1966 Bom 64. The learned Judges also considered the question regarding the legislative competence of the Proclamation to enact a law with reference to Entry 18 in List II of the VIIth Schedule to the Constitution. The learned Judges expressed the opinion that the matter would fall within the ambit of Entry 5 of List III of Vllth Schedule of the Constitution of India and that being a concurrent subject, the Parliament would have the power to modify the Hindu Law relating to widow's estate as indicated in Section 14(2) of the Hindu Succession Act. In that view, the learned Judges held that Mst. Budhiyarin became an absolute owner and the alienation made by her could not be challenged by the reversioners on the ground of her limited interest. 17. Before expressing our opinion, we may as well refer to the two Single Bench decisions of this Court on this subject; one is Rajaram v. Dindayal, 1971 MPLJ 172, decided by one of us, namely, Tare, J. and the other is Gopikabai v. Bajva, 1971 MPLJ 335, decided by Shiv Dayal, J. In 1971 MPLJ 172 (supra), Tare, J., held that in order that Section 14(1) of the Hindu Succession Act should apply conferring absolute estate on a widow, it would be necessary that the widow should not only possess the right to hold property, but also she must be in possession when the Succession Act came into force. If either of the two requisites is absent, Sub-section (1) of Section 14 of the Act will not be attracted. It is not necessary that the right and possession should co-exist. What would be necessary would be that at some point of time they should co-exist, although they may come into existence at different points of time. With reference to the applicability of Section 164 of the Land Revenue Code, 1959, the view as expressed in the Division Bench case of the Bombay High Court in AIR 1966 Bom 64 (supra) was followed drawing a distinction between tenure rights and tenancy rights. 18. In 1971 MPLJ 335 (supra), Shiv Dayal, J., also expressed the opinion that Section 151 of the M. P. Land Revenue Code, 1954, which deals with the devolution of interest of a Bhumiswami or a Bhumidhari tenure holder could not be regarded as a provision dealing with devolution of tenancy rights. Consequently, Section 4(2) of the Hindu Succession Act, 1956, would in no way save Section 151 of the M. P. Land Revenue Code, 1954, and it could not be held that the Hindu Succession Act does not affect the personal law according to which the devolution ,of interest of a tenure-holder passes under Section 151 of the Code. In order to attract Section 4(2) of the Hindu Succession Act, the legislation must provide for devolution of tenancy rights. As regards the applicability of Section 15 of the Hindu Succession Act, 1956, the learned Judge held that the crucial date would be the date of the death of the female and not the date of the death of the husband from whom she may have inherited the property. 19. Thus, in all these cases following the view of the Division Bench of the Bombay High Court in ATR 1966 Bom 64 (supra), opinion has been expressed that Section 4(2) of the Hindu Succession Act, 1956, contemplates devolution of tenancy rights and not the rights of tenure-holders. Therefore, Section 4(2) of the Hindu Succession Act, 1956, would not come in the way of applying the provisions of the Hindu Succession Act, 1956, to cases of devolution of interest of tenure-holder's rights. 20. In this connection we find that the word "tenure" has been defined by Stroud in his Judicial Dictionary of Words and Phrases (Third Edition), Volume 4, at page 2995 as follows:-- " "Tenure" word signifies the relation of tenant to lord." The Dictionary meaning is comprehensive enough to include all cases as between the landlord and tenant, including the incidence of tenure holders. 21. Similarly, Jowitt, in his Dictionary of English Law, (1959 Edition), Volume 2, at page 1374, defined the word "tenure" as follows:-- " "Tenure" in its general sense is a mode of holding or occupying." 22. In the light of these Dictionary meanings attributed by the learned authors to the word "tenure", we feel that the Parliament while using the word "devolution of tenancy rights" in Section 4(2) of the Hindu Succession Act, 1956, intended to use it in a broad and comprehensive sense so as to include devolution of all rights relating to tenancies, including those of tenure-holders and that there is no real distinction between the two, as was sought to be made out by the Division Bench of the Bombay High Court in AIR 1966 Bom 64 (supra) and by a Division Bench of this Court in AIR 1968 Madh Pra 247 (supra). Our reason for coming to this conclusion is that the provisions of the M. P. Land Revenue Code, 1954 and also those in the M. P. Land Revenue Code, 1959, contemplate a tenure-holder to mean not only a plot proprietor, but also a tenant, who previously was considered as such and on whom better rights are intended to be bestowed, by this new enactment. For this reason we feef that the distinction is not very real but imaginary and that the Parliament while using the phrase in Section 4(2) of the Hindu Succession Act, 1956, meant to use it in a broadest possible sense so as to include all rights of devolution in relation to agricultural lands not only confined to tenancy rights, but also to tenure-holder's rights. However, the actual effect of this would be that where a tenancy or a land tenure legislation makes a special provision for devolution of rights to lands, that provision will prevail and in that event, Section 4(2) of the Hindu Succession Act, 1956, will make the provisions of the Hindu Succession Act, 1956, inapplicable to such devolutions provided by the tenancy or the land tenure legislations. But, if the land tenure legislation itself makes the personal law of the parties applicable in that event certainly the Hindu Succession Act, 1956, or any other personal law, such as the Moham-madan Law or the Indian Succession Act, 1925, will be applicable. 23. The real difficulty that we are finding in accepting the view of the Division Bench of the Bombay High Court in AIR 1966 Bom 64 (supra) and the case of AIR 1968 Madh Pra 247 (supra), is that if we confine the meaning of the phrase "devolution of tenancy rights" occurring in Section 4(2) of the Hindu Succession Act, 1956; in that event especially the tenancy legislation or tenure-holder legislation will be applicable to devolution of rights of tenants proper, such as occupancy tenants or absolute occupancy tenants envisaged by the C. P. Tenancy Act, 1920, and they will not be applicable to Bhumiswami or Bhumidhari rights, which are tenure-holder rights. This line of reasoning would ignore the fact that the very absolute occupancy tenant had been made Bhumidharis under the M. P. Land Revenue Code, 1954, and even these Bhumidharis along with Bhumiswamis will be considered to be tenure-holders. Thus, if we were to adopt the reasoning of the Division Bench of the Bombay High Court and this Court, we would be led into an anomalous and untenable situation of excluding the due operation of the Hindu Succession Act, 1956, on wrong premises, Therefore, we do not approve of the view expressed by the two Division Benches as on this point we hold that Section 4(2) of the Hindu Succession Act, 1956, would encompass any legislation providing for devolution of tenure-holder or tenancy right. The phrase, in our opinion, has been used in its broader sense. On a perusal of several Land Revenue Acts and Tenancy Acts, we find that although an Act may be named as a Tenancy Act, it does encompass matters which may srictly not be described as tenancy rights. For instance, the C. P. Tenancy Act, 1920, pertaining to the rights of Sir Holders and also Khudkasht holders, which were proprietary rights. In the broad sense tenancy legislation might encompass rights pertaining to lands including rights of tenure-holders and it is from that point of view that the Parliament used the word devolution of tenancy rights so as to include not only the rights of tenant proper, but also rights of tenure-holders may be of different kinds. Therefore, in our view, the special provisions made in any tenancy legislation with respect to devolution of tenancy rights or tenure-holder's rights would govern the matter so as to exclude the operation of the provisions of the Hindu Succession Act, 1956, which would, however be applicable if the tenancy or the tenure-holder legislation itself makes provision for that. On this particular point we would overrule the Division Bench case of this Court in AIR 1968 Madh Pra 247 (supra), as also other cases which might have taken that view following the Division Bench view of the Bombay High Court. It is not necessary for us to mention all those Single Bench cases. 24. This brings us to the other question as to which personal law would govern the matter of devolution. In this connection we would affirm the view of the Division Bench of this Court in AIR 1968 Madh Pra 247 (supra), which has followed the view of the Bombay High Court in AIR 1966 Bom 64 (supra). In our opinion, the said two Division Bench cases had taken the correct view and the personal law applicable will be the law as amended from time to time up to the stage when the relevant question of devolution comes to be considered. If we were to accept the untenable view of Vyas, J., it will imply as pointed out in one of the Single Bench decisions of this Court that the question of succession will have to be considered with reference to the point of time when a person is alive. That will clearly be absurd, and such an interpretation cannot be permitted as was put on Section 151 of the M. P. Land Revenue Code, 1954, by Vyas, J., of the Bombay High Court and by K. L. Pandey, J., of this Court. 25. This brings us to the next question whether succession provided by Section 164 of the M. P. Land Revenue Code, 1959, as it stood before its amendment in 1961, was a valid provision or it was ultra vires in view of Section 4 of the Hindu Succession Act, 1956. The learned Chief Justice sitting singly in Second Appeal No. 91 of 1966 (Madh. Pra.) was of the opinion that the Division Bench of this Court in AIR 1968 Madh Pra 247 had taken the view that this provision was ultra vires. The learned Chief Justice was not in agreement with that conclusion and consequently, he referred the said case to the Full Bench. This very question is involved in the letters Patent Appeal and the earlier question that we have discussed, whether a Bhumiswami is a tenure-holder and not a tenant within the meaning of Section 4 of the Hindu Succession Act, 1956, is also involved in both these cases. 26. As regards the question whether Section 164 of the M. P. Land Revenue Code, 1959, is ultra vires in view of Section 4 of the Hindu Succession Act, 1956, the Division Bench in AIR 1968 Madh Pra 247 (supra), did not as such declare Section 151 of the M. P. Land Revenue Code, 1954, ultra vires, but certain observations might lead to that suggestion. We may observe that certain obiter observations do not amount to deciding the point and we do not think that the Division Bench of this Court actually intended to examine the constitutionality of Section 151 of the M. P. Land Revenue Code, 1954. However, it does appear that the other Division Bench in F. A. No. 13 of 1964, D/- 12-3-1968 (Madh Pra) did purport to consider the constitutionality of Section 151 of the M. P. Land Revenue Code, 1954. In that case it was argued on behalf of the appellant, Hiralal that the Hindu Succession Act had no application to agricultural lands as it is beyond the competence of the Central Legislature to legislate on any matters relating to agricultural lands. According to the learned Counsel, the matter falls under Entry 18 in List II of the Seventh Schedule to the Constitution. On the other hand, the contention of the learned Counsel for the respondents was that the Parliament was competent to enact the legislation for devolution under Entry 5, in List III of the Seventh Schedule to the Constitution. The Division Bench held that the Parliament was competent to legislate in respect of devolution under Entry 5 in List III of the Seventh Schedule of the Constitution and the Division Bench purported to follow the Full Bench decision of the Punjab High Court in Amar Singh v. Baldev Singh, AIR 1960 Punj 666 (FB). In that view, the contention of the appellant in that case was negatived. 27. We may advert to another Division Bench case of the Allahabad High Court in Smt. Prema Devi v. Joint Director of Consolidation (Head Quarters) at Gorakhpur Camp, AIR 1970 All 238 on account of which probably, the learned Chief Justice might have thought it proper to refer the present cases to a Full Bench. In that case B, Dayal, J. (as he then was) sitting with Lokur, J., expressed the following view:-- "In the first place, we are of the opinion that the Hindu Succession Act, 1956, cannot be made applicable to agricultural plots. This Act was passed by the Central Legislature in 1956 and the only Entry under which the Central Legislature had the jurisdiction to pass the Act, was Entry No. 5 in the Third List of the Seventh Schedule of the Constitution. This Entry is as follows:-- "5 -- Marriage and divorce; infants and minors; adoption; wills, intestacy and succession; joint family and partition; all matters in respect of which parties in judicial proceedings were immediately before the commencement of this Constitution subject to their personal law." This entry obviously relates only to personal law and laws passed under this entry do not apply to any particular property They merely determine the personal law. In List 2, Entry No. 18 is as follows:-- "Land, that is to say, right in or over land, land tenures including the relation of landlord and tenant, and the collection of rents; transfer and alteration of agricultural land; land improvement and agricultural lands colonization." This entry which is in the exclusive jurisdiction of the State Legislature is in the widest term. All laws relating to land and land tenures are, therefore, within the exclusive jurisdiction of the State Legislature. Even personal law can become applicable to land tenures if so provided in the State Law, but it cannot override State Legislation." "It is noteworthy that in list 3 wherever the entry relates to rights in land 'agricultural land' has expressly been excluded. For instance, Entry No. 6 is as follows: "Transfer of Property other than agricultural land ............" Entry No. 7 is as follows: "Contracts, including partnership, agency contracts of carriage, and other special forms of contracts, but not including contracts relating to agricultural land." No such exception was expressly mentioned in Entry No. 5 because this entry related only to matters personal to individuals and did not relate directly to any property. While legislating in respect of such general subject the Legislature must be assumed to pass law only affecting property which it had jurisdiction to legislate about. Gwyer, C. J., while delivering the judgment of the Federal Court in a reference on the Hindu Women's Rights to Property Act, 1937, reported in In the matter of the Hindu Women's Rights to Property Act, 1937, AIR 1941 FC 72 observed as follows:-- "There is a general presumption that a Legislature does not intend to exceed its jurisdiction. When a Legislature with limited and restricted powers makes use of a word of such wide and general import as "property", the presumption must surely be that it is using it with reference to that kind of property with respect to which it is competent to legislate and to no other ......,....." The Hindu Succession Act, 1956, was passed merely to alter the personal law of succession applicable to Hindu. It had no reference to any kind of property in particular and was not meant to govern rights in agricultural tenancies. Sub-section (2) of Section 4 of the Act runs as follows:-- "For the removal of doubts it is hereby declared that nothing contained in this Act shall be deemed to affect the provisions of any law for the time being in force providing for the prevention of fragmentation of agricultural holdings or for the fixation of ceilings or for the devolution of tenancy rights in respect of such holdings." This Sub-section indicates that it was only for the removal of doubts that this provision had been included. Even without the provision, the Act could not apply to agricultural holdings. 28. We may observe that that might be the position so far as other Stales were concerned. Evidently, the Hindu Women's Rights to Property Act, 1937, did not apply to agricultural holdings. It was for that reason that their Lordships of the Federal Court had held to that effect in Re Hindu Women's Rights to Property Act, 1937, AIR 1941 FC 72. But, so far as the old Central Provinces were concerned, the position obtained was different. By an Amendment effected in the year 1942, vide Act No. VI of 1942, by enacting the Hindu Women's Rights to Property (Amendment) Act, 1942, the State Legislature had specifically made the Hindu Women's Rights to Property Act, 1937, applicable to agricultural land. Therefore, this was a unique position which did not obtain in any other State and by virtue of the Amendment Act of 1942, the Hindu Women's Rights to Property Act, 1937, was made applicable to all agricultural properties as well and the women were given such rights in all kinds of properties, including agricultural properties. Therefore, the position obtaining in the old Central Provinces, which now would be a part of the present Madhya Pradesh, would be different and any betterment of the rights of Hindu Women by enacting the Hindu Succession Act, 1956, would certainly include betterment of the rights of Hindu women in agricultural properties as well because they had such rights under the Hindu Women's Rights to Property Act, 1937. In that sense the provisions of the Hindu Succession Act, 1956, in our opinion, will be applicable to all kinds of properties, including the agricultural properties in the matter of devolution of succession, provided the tenancy legislation as mentioned in Section 4(2) of the Hindu Succession Act, 1956, or which we may properly describe as land tenure legislation in which sense the Parliament has used the phrase, permits the same and does not make any special provision in that behalf. So far as the power of the State Legislature to enact Section 164 of the M. P. Land Revenue Code, 1959, is concerned, we may observe that if Entry No. 18 in List II, of the Seventh Schedule to the Constitution be held to include devolution and succession to agricultural properties, then the State Legislature would certainly have the power to legislate in that behalf. But, along with that we have to read Item No. 5, in List No. III of the Seventh Schedule to the Constitution, which relates to succession as well. Therefore, the matter of succession being in the concurrent List, we feel that not only the State Legislature, but also the Parliament would be competent to legislate in that behalf, including devolution or succession to agricultural properties. However, in this connection we might observe that in such a situation Article 254 of the Constitution will be attracted. We may reproduce Article 254 of the Constitution, which is as follows:-- "Article 254 (1) If any provision of, law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of any existing law with respect to one of the matters enumerated in the Concurrent List then, subject to the provisions of Clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of ihe repugnancy, be void. (2) Where a law made by the Legislature of a State ............... with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State; Provided that nothing in this clause shall prevent Parliament from enacting at any time anv law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State." 29. We may observe that the M. P. Land Revenue Code, 1954, as also the M. P. Land Revenue Code, 1959, had received the assent of the President and, therefore, by virtue of Sub-clause (2) of Article 254 of the Constitution, that law will prevail in the State of Madhya Pradesh as against any provisions of the Hindu Succession Act, 1956. However, the matter will be different when the M. P. Land Revenue Code, 1959, after amendment of Section 164 by the M. P. Land Revenue Code (Amendment) Act of 1961 makes the personal law of the parties applicable to devolution to agricultural properties. Upon such amendment, the personal law as amended from time to time will be applicable. We do not find any conflict between the State law and the Central enactment and, therefore, we are of the opinion that it cannot be urged that the State law and particularly Section 164 of the M. P. Land Revenue Code, 1959, or even the provisions of the Hindu Succession Act, 1956, in their applicability to devolution of agricultural properties in the State of Madhya Pradesh would be ultra vires or unconstitutional. We would reject such a contention outright. In our opinion, so far as the Madhya Pradesh State is concerned, it is the special provision of the tenancy law (land tenure Legislation), which will prevail on account of the assent given by the President and if such legislation does not make any provision, whatsoever, or if such legislation specifically makes the personal law of the parties applicable to devolution of agricultural tenures; in that event the provisions of the Hindu Succession Act, 1956, will be applicable to Bhumiswamis who are Hindus and as regards the other Bhumiswamis having different personal laws, their personal law will be applicable to them as may have been amended from time to time til! the question of devolution or succession comes to be considered in any particular case. That is the conclusion we would arrive at. Thus, we have adopted the line of reasoning slightly different from the Division Bench of this Court as also of the Bombay High Court and the Allahabad High Court in the cases mentioned earlier. But, in our opinion, this is the only rational line of reasoning, which will harmonise the different statutory provisions avoiding any conflict. There is a presumption that the Legislatures act within their power may be either the State Legislature or the Parliament and the presumption is against the unconstitutionally. Therefore, although some doubt may have been thrown on the constitutionality of either Section 151 of the M. P. Land Revenue Code, 1954, or Section 164 of the M. P. Land Revenue Code, 1959, or the provisions of the Hindu Succession Act in their applicability to devolution of agricultural properties, we would reject all those suggestions and would hold all the three Legislations constitutional, which were perfectly within the competence of the State Legislature or the Parliament, as the case may be. 30. This would dispose of the question referred to us in both these cases. Accordingly, recording our opinion to the following effect, we remit Second Appeal No. 91 of 1966 to the Single Bench for a decision of the other questions on merits and recording the same opinion in the Letters Patent Appeal, we propose to decide the said appeal on merits. Our answer to the question posed is as under:-- "That Section 164 of the M. P. Land Revenue Code, 1959, as it stood before its amendment in the year 1963, was a valid provision and that it was not ultra vires in view of Section 4 of the Hindu Succession Act, 1956." 31. As regards the Letters Patent Appeal, one main question is involved which the learned Single Judge has decided against the appellants. The said question is, whether under Section 164 of the M. P. Land Revenue Code, as it stood then, the female mentioned in Sub-section (2) was a female who had herself inherited the property under Subsection (1) of that Section. The learned Single Judge expressed the opinion that not only succession should open after the enactment of the M. P. Land Revenue Code, 1959, but also the female mentioned in Sub-section (2) of Section 164 of the M. P. Land Revenue Code, 1959, should have acquired that interest of a Bhumiswami subsequent to the enactment of the M. P. Land Revenue Code, 1959. Therefore, this is the only aspect which we are required to examine in the Letters Patent Appeal. For the sake of convenience, we have reproduced the relevant portions of Section 164 of the M. P. Land Revenue Code, 1959, before its amendment in the year 1961, in paragraph 14 above. 32. The reasoning of the learned Single Judge was that Section 164 of the M. P. Land Revenue Code, 1959, has no retrospective operation. Therefore, according to the learned Judge the acquisition of interest by a Bhumiswami under Sub-section (1) should be after the coming into force of the 1959 Code, i.e., after 2-10-1959 or thereafter. Therefore, we have to examine this line of reasoning adopted by the learned Single Judge. 33. So far as the facts of the present case are concerned, Mst. Dukalhin's husband, Karansingh died in the year 1956 according to the respondents and in the year 1954, according to the appellants. The widow, Mst. Dukalhin, therefore, would get her husband's interest in the agricultural property, assuming that Karansingh died in the year 1954, i.e., before the Hindu Succession Act, 1956, came into force (i.e., before 17-6-1956); in that event Mst. Dukalhin will get the agricultural property of her husband in a limited right as per Section 3 of the Hindu Women's Rights to Property Act, 1937, and upon the coming into force of the M. P. Land Revenue Code, 1954, she would become a Bhumiswami of those lands. Upon the coming into force of the Hindu Succession Act, 1956, her limited interest in such property would become an absolute interest by virtue of Section 14 of the Hindu Succession Act, 1956, and upon coming into force of the M. P. Land Revenue Code, 1959, she would become a Bhumiswami on 2-10-1959, by virtue of Section 158 of the M. P. Land Revenue Code, 1959. It is true that Section 164 of the M. P. Land Revenue Code, 1959, had no retrospective operation and Sub-section (1) will certainly apply to a Bhumiswami, who is a Bhumiswami at the commencement of the 1959 Code and who dies after the said Code. But, Sub-section (2) of Section 164 of the said Code, is not dependent on Sub-section (1). The learned Single Judge, in our opinion, was in error in thinking that Sub-section (2) of Section 164 will be attracted only if the widow has inherited her husband's property, who might have got it as per Sub-section (1). It is true that Sub-section (1) does contemplate death of the Bhumiswami after commencement of the Code. But, so far as Sub-section (2) is concerned, it will operate notwithstanding anything contained in Sub-section (1). Therefore, we do not think that the learned Single Judge was right in restricting the operation of Subsection (2) to the event happening in Subsection (1). In our opinion, Sub-section (2) will be operative independently and it will be immaterial whether the death of the male holder might have taken place before the commencement of the 1959 Code. But, what is necessary is that the female Bhumiswami must have acquired interest as a Bhumiswami and her capacity as a Bhumiswami must be there at the commencement of the Code. That condition is fulfilled in the present case. Mst. Dukalhin was a Bhumiswami at the commencement of the Code and she could be said to be a female Bhumiswami, who had inherited her husband's property as a widow. Therefore, it was not necessary that her husband should have died after the commencement of the Code. We are unable to endorse the reasoning of the learned Single Judge in that behalf, and we feel that by adopting that interpretation the very purpose for which this provision was enacted will he defeated. Here the implication of Sub-section (2) of Section 164 appears to be that any female Bhumiswami inheriting the property from a particular source, the property should go back to the heirs of that source unless the female Bhumiswami had disposed of the property during her lifetime, in which event the property will not at all be available for devolution or succession. 34. In the present case as the matter is governed by Sub-section (2) of Section 164 of the M. P. Land Revenue Code, 1959, Sub-clause (c) of Section 164 (2) will be attracted. Of course there will be no divesting if the provisions of the Hindu Succession Act, 1956 apply. The provision of divesting under Section 164 (2) (c) was a special provision, which must be given effect to as long as that remained a part of the statute. In this connection we might refer to a Full Bench case of this Court in Bhondu Ganpat Kirad v. Ramdayal Govindram Kirad, 1959 MPLJ 1173 = (AIR 1960 Madh Pra 51) (FB). That was a case of a Hindu widow remarrying, who had inherited her husband's property under Section 3 (2) of the Hindu Women's Rights to Property Act, 1937. The Full Bench laid down that by virtue of Section 2 of the Hindu Widows Remarriage Act, 1856, she would be divested of all property that she might inherit from her husband, but she would not be divested of the separate property of her son to whom she would, succeed as mother. To that extent only divestment under Section 2 of the Hindu Widow's Remarriage Act, 1856, was excluded. We are of the opinion that the same principle will be applicable to a case of divestment on account of remarriage as provided, by Section 164 (2) (c) of the M. P. Land Revenue Code. 1959, Section 164 (2) (c) is wider in its operation as the female Bhumiswami must have inherited property, either as a widow or as mother or as father's mother or as father's father's mother, which means the property must have belonged to her husband at some point of time, and on her remarriage such property will devolve upon the nearest surviving heir of the last male holder. The present Letters Patent Appeal is clearly governed by Section 164 (2) (c) of the M. P. Land Revenue Code, 1959, as the widow, Mst. Dukalhin remarried on 31-3-1960. Consequent on her remarriage she would be divested of the property and as such she would have no right to execute a gift or a sale of that property on 21-4-1960 or on 6-4-1960 and the gift or sale will be void and inoperative and they would not confer any rights on the donees or the vendees. As such, the property would revert to her husband's heir. As regards the appellants, they are Mst. Dukalhin's husband's brother's sons, who are his heirs after his death. 35. Consequently, the present appeal succeeds and is allowed with costs throughout. Counsel's fee shall be according to schedule or certificate, whichever be less. Raina, J. 36. This opinion shall also govern the disposal of second appeal No. 91 of 1966 (Madh Pra). 37. So far as second appeal No. 91 of 1966 is concerned, I entirely agree with the opinion of My Lord the Chief Justice that Section 164 of the Madhya Pradesh Land Revenue Code, 1959, as it stood before its amendment in the year 1961, was a valid provision and that it was not ultra vires in view of Section 4 of the Hindu Succession Act, 1956. I also agree with the reasons given by him in support of the opinion. 38. As regards the judgment in Letters Patent Appeal No. 20 of 1968, I must say, with great respect, that I am unable to agree with the interpretation put by My Lord the Chief Justice on Sub-section (2) of Section 164 of the Madhya Pradesh Land Revenue Code, 1959 as it stood before the amendment. 39. Section 164 of the Code, as it stood before the amendment, is reproduced below for facility of reference: "164. Devolution.-- (1) Notwithstanding any law, custom or usage to the contrary, the interest of a Bhumiswami shall on his death devolve in accordance with the order of succession given below:-- Class I-- Son, predeceased son's son, son of a predeceased son's predeceased son, widow or husband as the case may be, predeceased son's widow, widow of a predeceased son's predeceased son and widow of a predeceased son's predeceased son's predeceased son. Explanation I-- A grandson whose father is dead and great grandson whose father and grandfather are both dead shall inherit equally with the son. "Explanation II-- The widow of the deceased or if there are more widows than one, all his widows together shall take the same share as that of a son. The widow of a predeceased son shall inherit in the manner as a son if there is no son surviving of such deceased son and in the like manner as a son's son if there is surviving a son or a son's son of such predeceased son. The same rule shall apply mutatis mutandis to the widow of a predeceased son of a predeceased son. Class II--Daughter. Class III-- Father. Class IV-- Mother (if she is a widow). Class V-- Stepmother (if she is a widow). Class VI-- Brother of the whole blood. Class VII-- Brother of the half blood (being a son of the same father). Class VIII-- Daughter's son. Class IX-- Brother's son. Class X-- Brother's son's son. Class XI---Father's father. Class XII-- Father's mother (if she is a widow). Class XIII-- Sister. Class XIV-- Sister's son. Class XV-- Paternal uncle (father's brother). Class XVI-- Paternal uncle's son (father's brother's son). Class XVII-- Paternal uncle's son's son. Class XVIII-- Father's father's father. Class XIX-- Father's father's mother (if she is a widow). Class XX-- Father's paternal uncle. Class XXI-- Father's paternal uncle's son. Class XXII-- Father's paternal uncle's son's son. Explanation.-- (I) If there are more heirs than one of the same class, other than class I, who shall inherit per stirpes, all shall share equally. (2) Notwithstanding anything contained in Sub-section (1) where the interest of a Bhumiswami is inherited by a female:-- (a) from her father or mother, such interest on the death of the female shall, in the absence of her heirs of Class I or Class II of the order of succession specified in Sub-section (1), devolve upon the nearest surviving heir of her father as ascertained in accordance with the provisions of Sub-section (1); (b) from her husband or her father-in-law, such interest on the death of the female shall, in the absence of her heirs of Class I or Class II of the order of succession specified in Sub-section (1), devolve upon the nearest surviving heir of her husband as ascertained in accordance with the provisions of Sub-section (1); (c) as a widow, mother, father's mother or father's father's mother, such interest shall on her remarriage devolve upon the nearest surviving heir of the last male holder of such interest as ascertained in accordance with the provisions of Sub-section (1). (3) Where the total area of land in possession of a Bhumiswami together with the land which he is entitled to inherit under this section exceeds the prescribed ceiling limit, so much of the inheritable land as makes the total exceed the prescribed ceiling limit shall after selection by the Bhumiswami and demarcation in the prescribed manner devolve upon the other heirs of the propositus as ascertained in accordance with the provisions of Sub-section (1). 40 The learned single Judge held in paragraph 10 of the judgment that Sub-section (2) of the aforesaid section is nothing rat a proviso to Sub-section (1) and I am nclined to agree with him. Ordinarily, the non obstante clause is employed to give the enacting part of the section an overriding effect over the provision or the act mentioned in the, non obstante clause. Thus the enacting part of the section stands on an independent footing. But sometimes the non obstante clause is also used by the draftsman as substitute for a proviso and in such a case it has to be construed accordingly. The fact that the non obstante clause in Sub-section (2) of Section 164 of the Code was merely intended to override the provisions of Sub-section (1) of the said section clearly shows that it was intended to be a proviso to Sub-section (1). 41. A proviso is used to take special cases out of the general enactment and provide for them. In R. N. Sons Ltd. v. Asst. Commr. of Sales Tax, AIR 1955 SC 765 their Lordships made the following pertinent observations regarding the construction of the proviso in paragraph 10: "It is a cardinal rule of interpretation that a proviso to a particular provision of a statute only embraces the field which is covered by the main provision. It carves out an exception to the main provision to which it has been enacted as a proviso and to no other." A similar view was expressed by their Lordships in Income-tax Commr. v. I. M. Bank Ltd., AIR 1959 SC 713. Their Lordships held: "The proper function of a proviso is that it qualifies the generality of the main enactment by providing an exception and taking out, as it were, from the main enactment, a portion which, but for the proviso, would fall within the main enactment." 42. The aforesaid rules of construction have to be borne in mind while dealing with Sub-section (2) of Section 164. My Lord the Chief Justice has observed in paragraph 33 that Sub-section (1) contemplates death of the Bhumiswami after the commencement of the Code and I entirely agree with this conclusion. Sub-section (2) of Section 164 provides for a different mode of devolution than the one laid down in Sub-section (1) where the interest of a Bhumiswami is inherited by a female. In my opinion, this provision is attracted only where a female inherits the property of a Bhumiswami who dies after the commencement of the Code, because subsection (1) deals with the devolution of the interest of a Bhumiswami dying after the commencement of the Code. We have already noticed that a proviso only embraces he filed which is covered by the main provision. The main provision in this case is contained in Sub-section (1) of Section 164, which pro-rides for devolution of the interest of a Bhumiswami who dies after the commencement of the Code. Sub-section (2) of the section, if construed as a proviso, must, therefore, necessarily relate to a case of devolution of the interest of a Bhumiswami dying after the commencement of the Code. 43. If we carefully examine the contents of Sub-section (2), it would appear that it creates a limited estate in the case of females succeeding to the interest of a Bhumiswami after the commencement of the Code and provides how and when this limited estate would come to an end and the interest of the Bhumiswami would revert to his other heirs. 44. Where a female inherits the interest of a Bhumiswami prior to the commencement of the Code, she would be a full-fledged Bhumiswami herself holding absolutely and not a limited estate in view of Section 14 of the Hindu Succession Act, 1956. Thus she would be a Bhumiswami within the meaning of Sub-section (1) of Section 164 of the Code and devolution of her interest would be governed by the said Sub-section and not by Sub-section (2). If the intention of the Legislature had been different, as suggested by My Lord the Chief Justice, the wording of Sub-section (2) would, in my opinion, have been different. From the language of Sub-section (2), as it stands, it is clear that it deals with the interest of a famale heir of a Bhumiswami and not of a female Bhumiswami. 45. As pointed out by My Lord the Chief Justice, Section 164 was enacted by the State Legislature in exercise of the Legislative power under Entry 5 of the concurrent List, which reads as follows: "5. Marriage and divorce; infants and minors; adoption; wills, intestacy and succession; joint family and partition; all matters in respect of which parties in judicial proceedings were immediately before the commencement of this Constitution subject to their personal law." The expression 'intestacy and succession" clearly suggests that the succession contemplated by the said Entry is succession of the estate of a deceased person. Since Section 164 of the Code is not in terms retrospective, it is obvious that it would govern a case of succession opening after the commencement of the Code. Thus, in my view, Sub-section (2) is attracted only where the interest of a Bhumiswami has been inherited by a female after the commencement of the Code and not otherwise. Where a Bhumiswami dies before the commencement of the Code, his female heir would, under Section 14 of the Hindu Succession Act, acquire an absolute interest and Section 164 of the Code cannot be construed as adversely affecting such interest in the circumstances specified in Sub-section (2) of Section 164 of the Code. In my opinion, it was not, and could not be intention of the Legislature to convert an absolute estate of a living Bhumiswami into a limited estate in the circumstances specified therein by enacting Section 164 of the Code. 46. In this case, Mst. Dukalhin's husband, Karansing admittedly died before the commencement of the Code; and, as observed by My Lord the Chief Justice in paragraph 33, she acquired an absolute interest by virtue of Section 14 of the Hindu Succession Act, 1956 and, upon the coming into force of the Madhya Pradesh Land Revenue Code, 1959, became a Bhumiswami by virtue of Section 158 of the Code, In the case of such a Bhumiswami, remarriage would be of no consequence, because Sub-section (2) of Section 164 of the Code would not be attracted. She was, therefore, competent to execute a gift or sale of property on 30-4-1960 or 6-4-1960. The appellants, who are Mst. Dukalhin's husband's brother's sons, cannot, therefore, claim any interest in the property which is the subject-matter of the gift or sale. On this view, the decision of the learned single Judge appears to be correct because, as pointed out by him in paragraph 11 of the judgment, the transfers were not challenged on any other ground except that of divesta-tion resulting from remarriage. 46-A. I, therefore, hold that the appeal is liable to be dismissed with costs. Dube, J. 47. I have had the advantage of reading the opinions of the learned Chief Justice and my learned brother Raina, J. I regret my inability to agree with the views expressed by them. 48. Section 164 of the Madhya Pradesh Land Revenue Code, 1959, as it stood before its amendment in 1961, provided for the order in which the devolution of the rights of a Bhumiswami would take place after his death. The Hindu Succession Act, 1956 had already come in force when Section 164 was enacted. The Hindu Succession Act, 1956 also provided for the mode of succession of a Hindu dying intestate. The question referred for consideration of the Full Bench is whether the provision for succession of Bhumiswami rights under Section 164 of the Madhya Pradesh Land Revenue Code, 1959 as it stood before its amendment in 1961, was a valid provision or it was ultra vires in view of Section 4 of the Hindu Succession Act, 1956. The reference has given rise to other important questions. The first is as to the meaning of "devolution of tenancy rights in respect of agricultural holdings" occurring in Section 4(2) of the Hindu Succession Act, 1956, Secondly whether the legislation in respect of devolution of Bhumiswami rights under Section 164 of the Madhya Pradesh Land Revenue Code, 1959 was an enactment with respect to tenancy rights of agricultural holdings. If the enactment was with respect to tenancy rights of agricultural holdings, it would undoubtedly be saved under Sub-section (2) of Section 4 of the Hindu Succession Act and in that case, there was no conflict. If not, the question arises as to which of the two laws would prevail, whether it would be the provision of Madhya Pradesh Land Revenue Code or it was the Hindu Succession Act that governed the succession of the interest of a Bhumiswami and, therefore, the question of the legislative competence to enact the two enactments also arises. Lastly, the Letters Patent Appeal has given rise to a question as to the construction of Section 164 of the M. P. Land Revenue Code of 1959 prior to its amendment. 49. The facts leading to the reference have been fully stated in the opinion of the learned Chief Justice and we can proceed to the questions involved in the case. Before we proceed to discuss the provisions it would be convenient to reproduce here the relevant sections. Section 151 of the M. P. Land Revenue Code, 1954 reads as under:-- "Section 151.-- Subject to his personal law, the interest of a tenure holder shall on his death pass by inheritance, survivorship or bequest, as the case may be." Section 164 of the M. P. Land Revenue Code, 1959 was in the following terms prior to its amendment:-- "Section 164.-- Devolution-- (1) Notwithstanding any law, custom or usage to the contrary, the interest of a Bhumiswami shall on his death devolve in accordance with the order of succession given below:-- (.........The order of different classes is mentioned). (2) Notwithstanding anything contained in Sub-section (1) where the interest of a Bhumiswami is inherited by a female:-- (a) .............................. (b) .............................. (c) as a widow, mother, father's mother or father's father's mother, such interest shall, on her remarriage, devolve upon the nearest surviving heir of the last male holder of such interest as ascertained in accordance with the provisions of Sub-section (1)." Section 164 as it stands after amendment is as under:-- "Section 164. Devolution-- Subject to his personal law the interest of a Bhumiswami shall, on his death, pass by inheritance, survorship or bequest, as the case may be." Section 4(2) of the Hindu Succession Act is quoted as below:-- "Section 4(2). For the removal of doubts it is hereby declared that nothing contained in this Act shall be deemed to affect the provisions of any law for the time being in force providing for the prevention of fragmentation of agricultural holdings or for the fixation of ceilings or for the devolution of tenancy rights in respect of such holdings." 50. In AIR 1968 Madh Pra 247 and F. A. No. 13 of 1964, D/- 12-3-1968 (Madh Pra), this Court held that the legislation with respect to devolution of Bhumiswami or Bhumidhari rights under Section 151 of Madhya Pradesh Land Revenue Code, 1954 (Act No. 2 of 1955) was not a legislation with respect to tenancy rights of agricultural holdings. I would agree with the view taken in the two Division Bench cases of this Court. The question decided in the two rulings is whether the interest of a Bhumiswami created by the Code of 1959 is a tenancy right. This question cannot be solved by reference to predecessor Acts in different parts of the State dealing with interests which have now been grouped together as Bhumiswami. Many types of tenants under the predecessor Acts have now become Bhumiswami (see the position in Vindhya Pradesh and Madhya Bharat); but it cannot be inferred from this that Bhumiswami under the Code of 1959 is a tenant, for the Code has enlarged the interest of previous holders. To decide whether Bhumiswami is a tenant of the State, reference has to be made to the Code alone and not to the historical origin of Bhumiswamis. The features that are important in the case of a Bhumiswami are that the interest of a Bhumiswami is heritable, it is transferable, the lessee under him is not a sub-tenant and most important of it all is that there is no provision in the Act providing for ejectment of a Bhumiswami or termination of his interest in favour of the Government. In case of a lessee or tenant it is usual to find provisions which lay down the conditions on which the lessee or tenant can be ejected or his interest comes to an end (see, for example, Section 182 (2) and Section 193). These features clearly show that there is no relationship of landlord and tenant between the Government and the Bhumiswami. A Bhumiswami is called a tenure holder but he is not a holder of tenancy rights. The words 'tenure holder' may include a tenant but that does not mean that all tenure holders are tenants. The words used in Section 4 of the Hindu Succession Act are "devolution of tenancy rights" and, therefore, unless the interest of a Bhumiswami can be called a tenancy right he will not be excluded from the operation of the Act. 51. It is well settled by the decision of the Supreme Court in Mahadeo v. State of Bombay, AIR 1961 SC 1517 that the land in possession of a Bhumiswami who is a tenure holder is in substance an estate. Their Lordships of the Supreme Court were considering whether the rights of a tenure holder of the Bhumidhari or the Bhumiswami could appropriately be held to be an estate. Their Lordships observed as under:-- "Thus, reading the relevant definitions along with the provisions of Section 146 of the Code it would follow that the land in possession of the Bhumiswami who is a tenure-holder is in substance an estate.........The petitioners hold lands under the State and they pay land revenue for the lands thus held by them. Therefore, there is no difficulty in holding that under the existing law relating to land tenures the lands held by them fall within the class local equivalent of the word "estate" as contemplated by Article 31A(2)(a)." Again, the Supreme Court in AIR 1962 SC 694 pointed out that:-- "The basic concept of the word "estate" is that the person holding the estate should be proprietor of the soil and should be in direct relationship with the State paying land revenue to it except where it is remitted in whole or in part. If therefore a term is used or defined in any existing law in a local area which corresponds to this basic concept of "estate" that would be the local equivalent of the word "estate" in that area. It is not necessary that there must be an intermediary in an estate before it can be called an estate within the meaning of Article 31A(2)(a); it is true that in many cases of estates such intermediaries exist, but there are many holders of small estates who cultivate their lands without any intermediary whatever." Their Lordships reiterated the view taken in Mahaded's case (supra) AIR 1961 SC 1517. and stated that by virtue of Sections 145 and 146 of the Code, the estate held by the petitioners satisfied the test of the local equivalent of "estate" as contemplated by Article 31A(2)(a). The tenure-holders under Bhumiswami or Bhumidhari rights hold land directly from the State Government and there are no intermediaries. Whatever may have been the nature of their rights in the past but under the Land Revenue Code they were, in effect, the proprietors of the land and the rights were not tenancy rights. It, therefore, clearly follows from the decision of the Supreme Court that the Bhumiswami is not the tenant of the State. 52. As far as Section 151 of the M. P. Land Revenue Code, 1954 was concerned, the section, in terms, stated that personal law would be applicable in the matter of devolution of Bhumiswami and Bhumidhari. The personal law which governed the Bhumiswami or Bhumidhari was undoubtedly the law prevailing at the time of the devolution which included statute law as existing on that date. But when we come to Section 164 of M. P. Land Revenue Code of 1959, as it stood prior to the present amendment. It provided its own table of succession and came in conflict with Hindu Succession Act, 1956. According to the view expressed by the learned Chief Justice, there is no conflict between the two provisions as the phrase, "devolution of tenancy rights in respect of agricultural holdings' occurring in Sub-section (2) of Section 4 of Hindu Succession Act has to be construed broadly and would include legislations pertaining to rights of tenure-holders such as the Bhumiswamis and Bhumidharis with the result that Section 4(2) would save the provisions occurring in the Code as to the devolution of rights of Bhumiswamis and Bhumidharis. 53. The phrase, "tenancy rights in respect of agricultural holdings" cannot be construed to include tenure holders like Bhumiswamis or Bhumidharis. There is nothing in the language of Section 4(2) or in the scheme of Hindu Succession Act as would require construing the tenancy rights in a manner as would necessitate a departure from its natural connotation. The scheme of the Hindu Succession Act seems to me to exclude the devolution of tenancy rights alone from the operation of the Act. The reason appears to be that because of the divergence of tenancy rights prevailing in different States and the varied incidence to such rights which were depending upon numerous factors that it was difficult to provide for a uniform law with regard to them. The tenancy rights would be dependent on the terms of the contract and the scheme of the local law and the mage prevalent there. It was, therefore, felt that the devolution in respect of tenancy rights should best be left to the local legislature which would appreciate the needs of making any change in such rights having regard to the law prevailing there. 54. The Supreme Court in Mahadeo's case AIR 1961 SC 1517 (supra) has clearly indicated that the rights possessed by a Bhumiswami were thus of an owner of a land and such rights could be equated with an estate. The tenancy rights, on the other hand were the rights to cultivate the land as far as permissible under the law. The rights of Bhumiswamis could not be equated with tenency rights. I have already pointed out earlier that the one important feature of the Bhumiswami rights was that the Code did not provide for the termination of the interest by the Government. The Code did not provide for a right of re-entry by the State as is available to a landlord. The rights held by the Bhumiswami in earlier Acts would not be germane to find out the character of the existing rights under the present Act. I am, therefore, of the view that it would be doing violence to the language if any other meaning is assigned to the phrase, "tenancy rights." 55. In AIR 1970 All 238 it was held that under Entry 5 of the List III of the 7th Schedule when the Parliament legislated with respect to personal law, laws made under that Entry could not be said to apply to any particular property. That Entry merely gave the power to determine the personal law. It was further observed in that case that all laws relating to land and land tenures were within the exclusive jurisdiction of the State Legislature and even personal law becomes applicable to land tenures if so provided in the State law but it could not override State legislation. It was then observed: "The Hindu Succession Act, 1956, was passed merely to alter the personal law of succession applicable to Hindus. It had no reference to any kind of property in particular and was not meant to govern rights in agricultural tenancies.........Sub-section (2) of Section 4 indicates that it was only for the removal of doubts that this provision had been included. Even without this provision, the Act could not apply to agricultural holdings." 56. With great respect, we are unable to agree with the above view in Prema Devi's case (supra). A law prescribing succession to any property (whether agricultural land or otherwise) falls under Entry 5 in Concurrent List III of the 7th Schedule of the Constitution. This entry not only deals with personal law but specifically deals with "wills, intestacy and succession." Under the Government of India Act, 1935, Entry 7 in List III covered "wills, intestacy and succession save as regards agricultural land" and, therefore law relating to succession of agricultural land was outside the power of Central legislature. Under the Constitution, the exception as to agricultural lands does not find place in Entry 5 in Concurrent List, hence legislative power on the topic of succession entirely falls under this Entry. The exclusion of the words, "save as regards agricultural land" from Entry 5 in the Concurrent List of the 7th Schedule of the Constitution is deliberate. The Entry 5 in Concurrent List of the 7th Schedule of the Constitution is to be given the widest construction as including all properties without any restriction unless for some reason it is cut down by the terms of the Entry itself or by any other parts of the Constitution reading it as a whole. It was pointed out in Megh Raj v. Allah Rakhia, AIR 1947 PC 72 while construing the scope of an Entry in the Government of India Act, 1935 that such an Entry was a part of the Constitution and it would, on ordinary principles receive the widest construction unless for some reason it was cut down either by the terms of the Entry itself or by other parts of the Constitution read as a whole. Thus, construing the Entry, it cannot be said that it did not apply to agricultural lands. Entry 18 in List II must be construed not to exclude topics specifically dealt in Entry 5 in Concurrent List III of the 7th Schedule of the Constitution. In case of repugnancy, Section 164 of the Code will prevail under Article 254 as it is a later law and as it received the assent of the President. The position has changed after the amendment of Section 164 by Act No. 38 of 1961. Under the amended Section 164, the rights of a Bhumiswami would be governed in matters of devolution by personal law. Thus, it now fully harmonises with the Hindu Succession Act. 57. I am, therefore, of the view that Section 164 of the Madhya Pradesh Land Revenue Code, 1959, as it stood before its amendment in the year 1961, was a valid provision. The rights of Bhumiswamis could not be equated with tenancy rights in agriculrural holdings nor the phrase, "tenancy rights in agricultural holdings" occurring in Section 4(2) of the Hindu Succession Act could be so construed as to include the tenure-holders in Bhumiswami rights; with the result that even a Bhumiswami is not excluded from the operation of Hindu Succession Act. However, Section 164 of the M. P. Land Revenue Code, 1959 would prevail over the Hindu Succession Act in so far as it comes in conflict. The Second Appeal No. 91 of 1966 may, therefore, be decided in the light of the above observations. 58. Coming now to the last question which arises in the Letters Patent Appeal as to whether a female inheriting as a widow could be divested of the property after remarriage under Sub-section (2) of Section 164 (as it stood prior to amendment), it would be seen that Sub-section (1) provides for devolution of the interest of a Bhumiswami in case of his death. Sub-section (2) provides for devolution of interest in case of death or remarriage where the interest of a Bhumiswami is inherited by a female falling under Clauses (a), (b) (c) and such female dies or remarries. Now the word, "Bhumiswami" is not a word of general import but is a term of art whose meaning is defined by the Statute. The term has to be construed according to the Land Revenue Code of 1959 and not as defined in any other enactments. Once the word is understood, as it ought to be as provided by the Land Revenue Code of 1959, there is no difficulty in construing Section 164. 59. Both the Sub-sections are independent provisions and Sub-section (2) is not a proviso to Sub-section (1). However, the interest of a Bhumiswami dealt with in both these Sub-sections is the interest created for the first time by Section 158. Although in nomenclature certain holders in Mahakoshal under the Code of 1954 were also known as Bhumiswamis but from this fact it cannot be said that those persons held that interest which is created by Section 158 of the Code of 1959. Different types of holders in different regions who are mentioned in Section 158 become Bhumiswamis under the Code only from its commencement. The expression "interest of a Bhumiswami" in Section 164 must refer to the rights conferred and liabilities imposed by or under the Code on Bhumiswami as is clear from Section 158. "The interest of a Bhumiswami" with which Section 164 deals is this interest created by the Code and this did not exist before. Sub-section (2) of Section 164 applies when the interest of Bhumiswami is inherited by a female and that female dies or remarries. Now, if the interest of a Bhumiswami to which reference is made here is one created by the Code, the female falling under the above description must be one who has inherited after the coming into force of the Code, for it is impossible to say that any person could inherit the interest which is created by the Code before its enactment. Thus, the case of a female who had inherited before the Code does not fall under Subsection (2) even if she dies after the Code. But her case will fall under Sub-section (1). 60. I would thus agree with the conclusions arrived at by my learned brother Raina, J. though on different grounds, I would also uphold that the Letters Patent Appeal is liable to be dismissed with costs. By The Court 61. In accordance with the majority view expressed in separate Opinions, this appeal fails and is accordingly dismissed with costs.

Author: Tare

Nahar Hirasingh And Ors. vs Mst. Dukalhin And Ors. on 16 November, 1973

Madhya Pradesh High Court

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Jai Narain And Another vs State Of U.P. And Others on 27 August, 2010

Allahabad High Court

IN THE HIGH C()URT 01: KARNA'I'AKA AT BAN(}Al,()Rl:1 DATED THES THE 05"" DAY 01" AUGUS3' 2010 n B E F 0 RE TH!'-1 1mN';-z1:_,I3: MR. .I'US"I'ICE S.ABDUI. 1\:A__:?g1'i:1+:1é'.'_';- _ ';VIISCI¥II;I.ANI~I()US FIRST APPEAL No.1134::----<:)I§*j2(mSt'MV) " BETWEEN: M0ham.K.P., Aged about 41 years. S/0CheIi:.1pp.:m Pille, R/at Laxmi Nilaya, Shi.V}lj.i& N;=1gV£1rz1'.f :4 Pandith House, Perma1m"u:*'V,iIi.agE:;i. _ Mangalorc Taluk, D.K. _ i I"-- f_~.__,','.APPELLAN'l' (By S1'i.l3.E{z1:'?_«":1i;"=";\jT«".>.-1', 1. Ib1'ahi'm:A.M.x,'* A S/Q M(:)iCI'hiV_:i KL£':'111i'.}. .. 1?,/at L'Mc)ntep'a~:i;1Vu, V "~-TVIzai<1'g21}:1:11'1thi P65;"t';« V " » M a..ng;a,ip.;1(iy__, Nf;1.1JVg2'1'I€::'c{-Taiuk, D.K. N." "wThC_'U:'.ifi}'3iz1l lnsura'1nL:e Co. Ltd., Chennali, No.7, ? UH:-n'11a11'. G-amdhisali. "§E§."d Floor, Rose Tower. VV N()c):1gambz1ka1m, Chennai. Tamil Nzldu. ...RESP()NI)EN'l'S (By Sri;S.Y.Shiv;.1l}i, Adv. }"01'R--2' Notice to R-i dispe11se(,f with) E») This M.F.A. is filed under Section 173(1) of £\/IV Act aga1in.~_;£ the judgement and award dated l7.1().08 pawged in MVC No.61!/{)7 on the file of Member, MACT-VI.V'»._"&_V III Additional 'District Judge. Dakshina Kannada,WE'§xI;tiagal(§'::e. partly ailowing the eiaim petition for c<')1"r1;)e:1sa1ti('1=§j t1':1d.'$ee'kf§-fig' _ enhancement ofcompensation. This M.F.A. coming on for :hez11"i'1'1§__:. this -1cl.9,y','-th.eV"C'()L1Vi<E. deiivered the f01l0wing:- ' UDGMeNT" This appeai is directed a1gz1ih§st_ _ti':<::_V _jL1dg:i1e:)_t zthiii award in MVC No.61}/07 da:ett"--:'t7.~:(5e.2{3t)At: ;5:;thI'.:fie»»tfi:e of the Motor Accident Ciai1ns:VT1"ibuIjaI, vh/E;§.:sgtIi«ti':"e, The appeliant was the eE.é__i::11a1:'zt be"f«;m_>,v'ti1e"Tj9i%>.u1':a-i and the respondents were theowner aI1V('I,_':_nh;~;:1:*eit _0t'Il1e.'(5_Efe:1ding vehicle. There is no dispute {Q the ()ccLn'1"e11,Lj_e__Aof the accident and the liabihty of the '.se't.0nd, V:fes§50.nde:'1t~insurance company to pay the ezmipem;z1tif<):1.f' The ttppeiiant has fiied this appeal seeking (3nhal1'i'.f(-3AI1"K3I1t of c(')1npen.°,ati()11. 2. I have heard the learned Counsel for the parties. \» 3. Learned CoLm:'~;el for the appellant would conte-nod that the award of cornpensz'1ti()n by the Tribunal is on tl1e.l'ow'eIf':siicle. The Doctor who had treated the petitioner waéé'-_exajin.iner.l'an ' P.W.2. in his evidence he has S[iv¢'l}i.[§'iZ.3Cli'l;l'i'L3.v[.1116'Cl%lllTl£1,ljtHilTl;l¢i szustained E2'?/e permanent disal3_ility ltotilte wl1QlieA.bt)cly.ii'; Tribunal lies not awarded any c'oi_iipensatio--n.¢_towards loss of future income. The as a carpenter and was aged 40 yea_rsat tl:1e~.«ti:.:zi:<? He has taken treatment and also at Yenepoya.I*fli_5:atd'i'tEi1i: regard to the nature of inju:'i.ei§»t;u':stainejd'ihgij:l1»i.rn','fitliesicompensation awarded towarcls loss ot":.-1inen,it.ies is Ai::}.tid«e{1u21te. The claimant was earning l{s._{§;ii€;}(){}/:- pet' montta.--~--wl1ich clear from the salary certificate _ at TF'E:.ei Tribuii.:1l has taken the income of the petitioner at 'Rte.3,{_)V()(l/éipeit" month. which is on a lower side. " On the other hand. learned Advocate appearing for the = -eeccititl res;3ondent»lnstirance Conipany has sought to justify the impugned judgment and award. it 5. I have perused the reeortis oi' the Tribunal, s:i3V_:'1.Is(:.t_the jactgment and award iiiiptigned herein. The D_c_>'c::.t0t'iiwljiti itad V. treated the petitioner was ext1:h_i1ied_;ts~ i.'_.4W.f:Z'. In his eV'i.tiei1ce, V he has stated the nature ofthe in_tL1rie.s st'-..sti71'ineti'--h_y -tl1e..e'E.':§Eiér_iiint_ on account. of the accident. i'.v1 i'i~tS et't$s:;.--e'x-athvinaititiii' he has' stated that the pei*iiiztne'ti.t diseb'i'ii't}t":<ustaineti by the eiaimaiit was i2% to the whoie beefy. "The c_.'.-;;t_ii'iiaiit"'.lizts produced his Ex.P1(}:: w?ie1*eih if.".ML1S.i'C€l'tifi6d that he was salary certificate' drawing RS._v(i,("}()'(:)_/-- .1't'I"(itITl':1V."'H()W€VCl'. he has not prochieect any (){:ii]61"'C}'(')Ci1tT1'éVtt'i.SVNi»t1vaS'i1p'p<)'l't.Oi'tilt? said contention in 0_i'de.r to establish--._VthatVhe ti/as«.i.--~;5a1id Rs.6,()()(")/~ per month towards sz1vi'fai*y,'Itt cahiiot he-6--E-:;pi1ted that the claimant was working as a _ C:1J_'h;.1i'Vt'eif'£tt 'the tiiiie of the accident. It is just and reasonable to huigih t!iva:t':l'i:e'iV:w21s eaming; Rs.l50/~ per day (_Rs.4,5()()/-- per Amo1ith}.,,__"it is aiso evident t'mm the materials on t'CC().E'd that he ' -..VW'tts..*'t1ged 40 years at the time of the accident. Theref0i'e._ the -"mLlitipiit'3l' applicable for assessment of loss of futtare income is I5. Thus, the claimant is emitted for a {mat sum of Rs.97,?.0()/~ h a,' 5 towards l0s.s' <>i"futL11*e income. I am z11.~;<"> of the View than {ha claizmrwt is enriricd for '.1 sum of R.x'.25,0()()/-- E<)»vur'd:_; pain and suffbriargs, Rs.2(i).{')(')0/« Ecrwarrxfg; loss of ;1111c11i1'i,c-"5--.» and RS.13,50()/W £.(wv;u'Lis loss of income for tirree 11r('>11t.11e;_drrririgfire rre'.11m<':nt period. Aw:1r'd of compctxrszition on _(.3t_E'3fe'r--'.. .l1é:2r;'1:.: 'is 'i£1:_aI._ ' and proper. Thus, the clainumt is é;»:rti£.lbeLi ji,'<')ur--_ci>.m'per'1s;'1.1j0:1,;rE; under: E. 2. Loss; of future incornc Par :1 21 nd .<;u1"i"c':s"ia'1,g,; _ Medical - __ -- . f;( )S:s 0f'E':1c"(}n'1e Vciurirzg the laid" up pm?-E(')d'v. ';:C<"3 :ja;3c:1s'.{13'i't$ri t0wa1r'cis nourish mam, '«;%rc):1_V'€vy;1r1ce and incidental expenses 6. low it rcis L%jz__~:._s\7;.>f :1 mcniries Tom] rrmr. ' 25,000/-- 13,500/M 7,200/- 2(),()()()/« 1.65.273/-- The Tribunal has z1\4-vzwdecl :1 total suan of Rs.48,573/-- cornpensartéon, which 11213: to be dezducied {man the (3 afotfemici z'1rnoL1n1. The balance amoum payable to the <:!'.1imani is R:s..E,E(i.7()()/--. The enhanced anmunz Shani cairn; interesi 6% from the date of L1pp}iCa{i()l1 tiil {he date (.)fdeposi{.u 7. In {he result. {he appeal} weeeeds aaf:'d"it'--i.-§_'v21C'CV():'dingE3?" ailowed in puri. The second respofadetit?I~:'iSui':a._nee 'eoia2.f5a;é§?f.is di1fec:ted to deposié a sum of I?,._s'4"."§...V_16.7(.fi()/-- win} Ttuj_cE'i':;E'()trig): w11ai= V has been awarded by,-{he TEjib'Ll1.1.iI§--'\uN'-»iAEl1 i:1'te:re.:.:t..~@ 6% per amnum from {he date offhe"z1pp.l:fc;1Ii()Ei'-.:g§»!..E. "the date of cieposéi. claimilm oh sueli e(is1's. ', Sd"/'3» RIDGE Be

Author: S.Abdul Nazeer

Mohan K P vs Ibrahim A M on 5 August, 2010

Karnataka High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM CRL A No. 759 of 2006() 1. BIJU, S/O.VISWAMBHARAN, ... Petitioner Vs 1. STATE OF KERALA, REPRESENTED BY THE ... Respondent For Petitioner :ADV.NIDHI BALACHANDRAN(STATE BRIEF) For Respondent :PUBLIC PROSECUTOR The Hon'ble MR. Justice K.THANKAPPAN Dated :14/11/2006 O R D E R K. Thankappan, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A. No. 759 of 2006 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 14th day of November, 2006 JUDGMENT Crl.A.759/06 4  Crl.A.759/06 5 K. Thankappan,J. - - - - - - - - - - - - - - - - Crl.A. No. 759/2006 - - - - - - - - - - - - - - - - Judgment 14-11-2006  Third accused in S.C.No.940/2000 on the file of the Court of the Addl. Sessions Judge for the Trial of Abkari Act Cases, Neyyattinkara is the appellant. 2. The appellant along with accused 1 and 2 were charge-sheeted for the offence punishable under section 55(a) of the Abkari Act on the allegation that they were found in possession of 15 litres of arrack in two jerrycans. The prosecution case against the appellant and other accused is that while CW5, the Sub Inspector of Police of Parassala Police Station, on petrol duty, he received information that arrack is being sold by two persons. He went to Parassuvaikkal desom. When he reached the public road leading from Parasuvaikkal to Manimala, he found three persons engaged in the sale of alcohol keeping in their possession two jerrycans, a white one of 10 litre capacity held by the 2nd accused and a black one of 5 litre capacity held by the appellant, each of the can, on examination, was found filled with arrack in contravention of the provisions of the Abkari Act. CW5, after complying with legal formalities, arrested the appellant  Crl.A.759/06 2 and the 2nd accused and later the 3rd accused surrendered before the trial court. PW3 who conducted the investigation filed the final charge before the court. 3. To prove the charge against the appellant, the prosecution examined PW1 to PW5 and Exts.P1 to P7 were marked. MO1 and MO2 were also marked. Relying on the evidence adduced by the prosecution both, oral and documentary, the trial court found the appellant and the 2nd accused guilty under section 55(a) of the the Abkari Act and they were convicted thereunder. They were sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.1,00,000/- and in default simple imprisonment for a further period of three months. Hence, the appeal is filed challenging the conviction and sentence awarded against the appellant. 3. The learned counsel for the appellant submits that the reliance placed by the trial court on finding that the appellant was guilty under section 55(a) of the Abkari Act is irregular. The learned counsel also submits that the prosecution has failed to prove the identity of the appellant. The learned counsel further submits that CW5 who detected the crime was not examined to prove the prosecution case.  Crl.A.759/06 3 4. The case of the prosecution is that on 2-5-1998 while CW5 was on patrol duty, he found three persons were engaged in the sale of alcohol keeping in their possession two jerrycans. CW5 who detected the case was not examined to prove the case. He had not made any investigation to identify the other accused. The only evidence adduced by PW3 is that he had made certain investigation with regard to the involvement of the 1st accused. The 1st accused has been acquitted by the trial court. PW3 admitted that he was not in a position to identify the appellant. In this context, it has to be noted that PW1, who is an attester of Ext.P1 seizure mahazar, was turned hostile to the prosecution. Hence, there is no proper evidence to prove the identity of the accused. There is no evidence to show that MO1 and MO2 were identified by any witness, including PW1 and PW3. In the aforesaid circumstances, this Court is of the view that the appellant deserved to be acquitted on the grant of benefit of doubt. 5. Hence, the conviction and sentence ordered against the appellant are set aside and the appeal is allowed. Therefore, the appellant shall be released forthwith unless required in any other case. K. Thankappan, Judge.

Biju vs State Of Kerala on 14 November, 2006

Kerala High Court

IN THE HIGH COURT OF JHARKHAND AT RANCHI W. P. (S). No. 2992 of 2008 Mahendra Pratap Singh ... Petitioner Versus The State of Jharkhand & Others ... Respondents ............. CORAM: HON'BLE MR. JUSTICE D.N.PATEL ------------ For the Petitioner Mr. Rajiv Ranjan For the Respondents G. P. I ----------- 2/ Dated 12 February, 2009 1. Learned counsel for the petitioner submitted that for stale charges of 1993, the show-cause notice and charge-sheet has been issued (Annexure-4) dated 10th January, 2007, which is under challenge by the petitioner. But fairly it is submitted that no reply of this charges has been given by the petitioner and, therefore, the same has not been concluded by the concerned respondent authorities. 2. In view of this fact, I hereby direct the concerned respondent authorities to conclude the departmental proceeding upon receiving the reply of the charges from the petitioner within a period of 16 weeks from the date of receiving of this order. The concerned deciding authority/committee shall take into consideration the following judgments, upon which heavy reliance has been placed by the counsel for the petitioner: (a) In the case of Gaudiya Mission Vs Shobha Bose and Anr. reported in 2008(2) JLJR 147; (b) In the case of The State of Madhya Pradesh Vs Bani Singh and another reported in AIR 1990 SC 1308; (c) In the case of The State of Punjab Vs Dewan Chuni Lal reported in AIR 1970 SC 2086; and (d) And also all the relevant documents, which are already supplied by the petitioner and which shall be supplied within 15 days from today along with their reply. 3. Liberty is reserved to the petitioner to move before an appropriate Court or forum or tribunal in case of difficulty. In view of aforesaid direction, this writ petition is disposed of. (D.N. Patel, J.) Ajay/Kamlesh

Mahendra Pratap Singh vs State Of Jharkhand & Ors. on 12 February, 2009

Jharkhand High Court

JUDGMENT Bennet, J. 1. This is an appeal by the plaintiff against an order of remand. The facts are that the plaintiff sued for possession of certain property against four defendants, of whom Motilal, Chandra Bhan, and Lala Ram were three brothers, and Goswamini Rohini Debya, as the manager of a temple. The suit was decreed by the Munsiff and an appeal was brought by the She bait, defendant 4. In that appeal, inter alia, the defendant 4 urged that the idol, the Thakurji, was a necessary party to the suit. The lower appellate Court passed an order on 7th January 1927 as follows: The plaintiff has put in an application to make the Thakurji a party in the case and the Thakurji has now been brought on the record. Inasmuch as all the issues will have to be tried on the evidence adduced on behalf of the Thakurji, this decision of the learned Munsiff cannot stand. It is accordingly set aside and the suit is remanded for retrial, The parties shall have a right to produce fresh evidence. 2. The plaintiff made an application in the Court of the Munsiff when the case was heard on remand, asking that the Thakurji and the Shebait, defendant 4 should be removed from the array of defendants and that application was granted by the Munsiff. The Munsiff again decreed the suit of the plaintiff for possession. An appeal was filed in the lower appellate Court by the heirs of Lala Ram, the original defendant 1, and the ground urged before the lower appellate Court was that it was not open to the Munsiff to strike off the name of the Thakurji which had been added by the lower appellate Court. That plea has been accepted by the lower appellate Court and the case has been again remanded to the Munsiff for determination after bringing the Thakurji and the Shebait on the record as defendants. The plaintiff appeals against that order of remand. 3. We consider that the application to the Munsiff to strike off the Thakurji was an application under Order 1, Rule 10(2). That rule authrorises a Court to strike off the names of any person improperly joined as party. Inasmuch as the lower appellate Court had found that the Thakurji should properly be joined as a party, we consider that it was not open to the Munsiff, a Court subordinate to the lower appellate Court, to come to the opposite conclusion in regard to that matter, and therefore we consider that the Munsiff Was not authorised to strike off,the name of the Thakurji as a party. Similarly, we consider that the Munsiff should not have struck off the name of the Shebait as a party. We further consider that as the question at issue was whether this particular shebait, Goswamini Rohini Debya had improperly granted a perpetual lease of property to the plaintiff, that she was not the proper person to represent the Thakurji before the Courts. Accordingly we consider that the Thakurji should be represented by some other representative. 4. Accordingly we dismiss this appeal with costs and the order of the lower appellate Court of remand should be carried out with the directions given above.

Author: Bennet

Radha Balabh Pathak vs Bhullo And Ors. on 10 December, 1929

Allahabad High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C) No. 11661 of 2007(L) 1. S.RAJEEV,MALAYIL HOUSE,AMALAGIRI, ... Petitioner Vs 1. THE REGIONAL TRANSPORT AUTHORITY, ... Respondent 2. THE SECRETARY,REGIONAL TRANSPORT 3. THE STATE TRANSPORT APPELLANTE TRIBUNAL, 4. THE MANAGING DIRECTOR,THE KERALA For Petitioner :SRI.O.D.SIVADAS For Respondent : No Appearance The Hon'ble MR. Justice K.BALAKRISHNAN NAIR Dated :11/04/2007 O R D E R K.BALAKRISHNAN NAIR, J. ------------------------------- W.P.(C).No.11661 of 2007-L --------------------------------- Dated this the 11th day of April, 2007 JUDGMENT The case of the petitioner herein is identical to the case of the petitioner in W.P.(C) 11612 of 2007. So, both sides submitted that the directions issued in the above-said case can be issued in this case also. Accordingly, the R.T.A. is directed to re-consider the matter afresh, in accordance with law, uninfluenced by Exts.P6 and P10, after affording an opportunity of being heard to the petitioner and the K.S.R.T.C. It is made clear that I have not expressed anything on the merits of the case of the petitioner. The Writ Petition is disposed of as above. K.BALAKRISHNAN NAIR, JUDGE. MS 

S.Rajeev vs The Regional Transport Authority on 11 April, 2007

Kerala High Court

[Section 35] [Complete Act]

Central Government Act

[Section 3] [Complete Act]

Central Government Act

IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Criminal Misc. No. M-29347 of 2009 Date of decision : October 24, 2009 Chota Shakil and others ....Petitioners versus State of Punjab ....Respondent Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Mohd. Salim, Advocate, for the petitioners L.N. Mittal, J. (Oral) ( L.N. Mittal ) October 24, 2009 Judge 'dalbir' Learned counsel for the petitioners seeks permission to withdraw the instant petition for anticipatory bail. Dismissed as withdrawn.

Chota Shakil And Others vs State Of Punjab on 24 October, 2009

Punjab-Haryana High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM LA.App..No. 1176 of 2009(D) 1. STATE OF KERALA (SPECIAL TAHSILDAR (LA) ... Petitioner Vs 1. S.RAVEENDRAN, T.C.31/1564, ... Respondent 2. P.INDIRA, T.C.31/1564, CHAKKAVILAKAM, 3. THE MANAGING DIRECTOR, For Petitioner :GOVERNMENT PLEADER For Respondent : No Appearance The Hon'ble MR. Justice PIUS C.KURIAKOSE The Hon'ble MR. Justice K.SURENDRA MOHAN Dated :08/10/2009 O R D E R PIUS C.KURIAKOSE & K.SURENDRA MOHAN, JJ. ------------------------ L.A.A.No.1176 OF 2009 ------------------------ Dated this the 8th day of October, 2009 JUDGMENT Pius C.Kuriakose, J. Sri.Basant Balaji, learned senior Government Pleader addressed us strenuously on the various grounds raised in the memorandum of appeal. However, having gone through the impugned judgment, we are of the view that the findings entered therein are reasonable and are founded on evidence including the very basis document. The property was in Pettah village. The acquisition was in the year 2000. The enhancement granted is from Rs.1,00,000/- per Are to Rs.1,75,000/- per Are. Having regard to the importance of the locality and advantages enjoyed by the acquired property, we feel that enhancement granted is by no standard excessive. The appeal is dismissed. No costs. PIUS C.KURIAKOSE,JUDGE K.SURENDRA MOHAN, JUDGE dpk 

State Of Kerala (Special ... vs S.Raveendran on 8 October, 2009

Kerala High Court

Gujarat High Court Case Information System Print SCA/1307/2011 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 1307 of 2011 ========================================================= GUJARAT VIDHYUT BOARD TECHNICAL KARMACHARI HIT RAKSHAK MANDA - Petitioner(s) Versus STATE OF GUJARAT THROUGH SECRETARY & 7 - Respondent(s) ========================================================= Appearance : MR TR MISHRA for Petitioner(s) : 1, GOVERNMENT PLEADER for Respondent(s) : 1, MR DIPAK R DAVE for Respondent(s) : 2, 4, NOTICE SERVED for Respondent(s) : 3,5 - 7. MR PREMAL R JOSHI for Respondent(s) : 8, ========================================================= CORAM : HONOURABLE MR.JUSTICE RAVI R.TRIPATHI Date : 07/07/2011 ORAL ORDER1. Mr.Yogi Gadhiya, learned Advocate wants some time so as to enable him to file a Civil Application being impleaded as party in the present Special Civil Application. 1.1 At his request matter is adjourned to 11/07/2011. Affidavit-in-reply filed by learned Advocate, Mr.T R Mishra, for the petitioner is ordered to be taken on record. (RAVI R TRIPATHI, J.) sompura     Top

Author: Ravi R.Tripathi,

Gujarat vs State on 7 July, 2011

Gujarat High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.31594 of 2010 KARUN RAI @ TAMATAR RAI, SON OF LATE SITARAM RAI, RESIDENT OF VILLAGE AKBARPUR CHALISA, POLICE STATION SAMHO, DISTRICT-BEGUSARAI. .....Petitioner. Versus THE STATE OF BIHAR .....Opposite Party. For the Petitioner : Mr. Ajay Kumar Thakur (Adv.) For the State : APP. ----------- 02/ 26.08.2010 Heard learned Counsel for the petitioner and learned Counsel for the State. The petitioner seeks bail in this case which has been registered against 4-5 unknown criminals regarding killing of Munna Rai. Submission is that nobody has seen the occurrence. Nobody is named in the First Information Report. During investigation it has transpired that the deceased was a notorious criminal and he was accused in Nayagaon (Samho) P.S. Case No. 75 of 2005 under Section 302/34 of the Indian Penal Code and Section 27 of the Arms Act and in that case father of the deceased was witness against the deceased of the present case. It has also been submitted that similarly situated accused Ram Kumar Rai has been granted bail by this Court on 11.08.2010 in Cr. Misc. No. 20540 of 2010 vide Annexure-2. Considering the facts and circumstances of the case, the above named petitioner is 2 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 the learned Additional Sessions Judge, Fast Track Court III/court concerned, Begusarai in connection with Sessions Trial No. 521 of 2010 arising out of Samho P.S. Case No. 02 of 2010 subject to the condition that: (Shyam kishore Sharma, J.) kksinha/-

Karun Rai @ Tamatar Rai vs State Of Bihar on 26 August, 2010

Patna High Court - Orders

Court No. - 6 Case :- SERVICE SINGLE No. - 7270 of 1989 Petitioner :- Tulsi Ram & Another Respondent :- State Of U.P. And OthersPetitioner Counsel :- S.C. Sitapuri Respondent Counsel :- C.S.C. Hon'ble Shabihul Hasnain J. None appears to press the petition despite repeated calls. Petition is dismissed for want of prosecution. Interim order, if any, stands Vacated. Order Date :- 13.7.2010 RKM.

Tulsi Ram & Another vs State Of U.P. And Others on 13 July, 2010

Allahabad High Court

ORDER Tej Shankar, J. 1. These three Revision Petitions arise out of three different cases against the present petitioner. As they raise common questions of law, they have been heard together and are being disposed of by this common order. 2. The facts on the basis of which the petitioner has been prosecuted Under Section 3 r/w Section 7 of the Essential Commodities Act and violation of Section 19 of the Fertilizer Control Order, 1985, in the aforesaid three different cases are also more or less similar. 3. It is alleged that Raghuveer Saran Gupta non-petitioner No. 2 was proprietor of M/s Raghuveer Saran Arun Kumar, a dealer in fertilizers at Dinara (326/96) Satish Kumar Jain, non-petitioner No. 2 was proprietor of M/s Vivek Traders, a dealer of fertilizers at Pohri (327/96) Hukum Chand Nagaria. non-petitioner No. 2 was proprietor of M/s Jwala Prasad Hukum Chand, a dealer in fertilizers at Sirsaud (328/%). There was a stock of Vishwas Brand Single Super Phosphate (In short SSP) with the said proprietors and sample was taken on different dates in the aforesaid three cases and it was sent to the fertilizer analyst for examination. A report dated 4-9-1995 was received and according to the report sample was found Sub-standard to the extent mentioned in the report. In all the three cases it was mentioned in the report that the fertilizer was purchased from the firms mentioned therein. The allegation made against the petitioner was that he was the manufacturer of Vishwas Brand Single Super Phosphate (SSP) which was a company known as Shriniwas Fertilizers Ltd. Jhansi (U. P.). The petitioner claimed that there was, however, no mention of the procedure adopted by the complainant in taking sample. There was no allegation about the business relationship between the said firms and the petitioner. The said firms are not agent of the petitioner. The shops from which the sample was received did not belong to Shriniwas Fertilizers Ltd. Jhansi (U.P.) Shriniwas Fertilizers Ltd. had no sale depot in M.P. or at Shivpuri. There is no allegation in the F. I. R. that the sample was taken from the bags which were owned by M/s Shriniwas Fertilizers Ltd. even if it was found that the fertilizer in question was the same which was manufactured by M/s Shriniwas Fertilizers Ltd., Jhansi (U.P.). There was no allegation to support the allegation that sample was taken from the bags which were in the ownership of the M/s Shriniwas Fertilizers Ltd. There is also nothing to show that the said firms had obtained any warranty from M/s Shriniwas Fertilizers Ltd. or that the goods were kept intact in the same condition in which they were purchased. Procedure for taking sample had been laid down in Schedule-II of the Fertilizer Control Order, 1985 and the provisions are mandatory. Nothing has been shown that the procedure was actually followed. Unless it is specifically alleged that the petitioner was the owner he could not be proceeded with under the Essential Commodities Act. There could not be a joint trial under the provisions of Essential Commodities Act of the alleged manufacturer or vendor or distributor. They can only be tried if allegations are made that they have connecting links between them so as to constitute the same transaction. This link is absolutely missing in the case. The petitioner before the lower Court contested this point at the time of framing the charge. But the lower Court repelled the contentions and framed the charge and hence the present petitions. 4. A preliminary objection has been raised on behalf of the respondent that revision petition against the framing of charge is not maintainable as it is an interlocutory order. 5. Learned counsel for the petitioner argued at length that the revision petition lies. In support of his contentions he placed reliance upon certain authorities. 6. The earliest authority upon which reliance has been placed is 1977 Cr.L.J. (SC) 2185, Amarnath v. State of Haryana. In this case the words "interlocutory order" appearing in Section 397(2) have been interpreted. It was a case where the FIR was lodged on the basis of which after investigations a charge sheet was submitted against the other accused persons except the appellants against whom it was opined that no case at all was made out as no weapon was recovered nor any clear evidence about his participation was there. A final report was submitted Under Section 173 of the 1973 Code against accused concerned. The Judicial Magistrate, Karnal, accepted the final report and set the appellants at liberty. The complainant preferred a revision petition before the Additional Sessions Judge, Karnal against the order of the Judicial Magistrate which was dismissed. The informant thereafter filed a complaint before the Judicial Magistrate against the 11 accused persons including the appellants. After examining the complaint and going through the record learned Judicial Magistrate dismissed the complaint as he was satisfied that no case was made out against the appellants. Again a revision was preferred and it was allowed and the case was remanded for further enquiry. The learned Judicial Magistrate thereafter issued summons to the appellants straightway. The appellants then moved before High Court Under Section 482 and Section 397 of the 1973 Code for quashing the order of the Judicial Magistrate. The petition was dismissed by the High Court holding that the order was an interlocutory order and the revision was barred by virtue of Sub-section (2) of Section 397 of the 1973 Code. As the revision was barred the Court could not take up the case Under Section 482 for quashing the order of the Judicial Magistrate. On these facts the Hon'ble Apex Court considered at length the import of words "interlocutory order" appearing in Sub-section (2) of Section 397 of the 1973 Code. It was held that the order of summoning the appellants had been taken away by the Magistrate in passing an order prima facie without applying his mind. Consequently, it was concluded that the order was one which was a matter of moment and which did involve a decision regarding the rights of the appellants. If the appellants were not summoned then they could not have faced the trial at all, but by compelling the appellants to face a trial without proper application of mind cannot be said to be an interlocutory order, but one which decided a serious question as to the rights of the appellants to be put on trial. 7. The other authority upon which reliance has been placed is 1978 (SC) 47, Madhu Limaye v. State of Maharashtra. Again in this case the meaning of "interlocutory order" was considered. In that case the facts briefly narrated were that, it was alleged that the appellant had made certain statements on 27th September, 1994 in Delhi and handed over a 'press hand-out' containing alleged statements concerning Shri A. R. Antulay, the then Law Minister of the Government of Maharashtra. The statements had been published in newspapers. The State Government, therefore, decided to prosecute the appellant Under Section 500, Indian Penal Code. Sanction for prosecution was also obtained. Cognizance was taken of the offence alleged to have been committed by the appellant by the Court of Sessions without the case being committed to it as permissible under Sub-section (2) of Section 199 - Process was issued against the appellant upon the said complaint. The Chief Secretary to the Government of Maharashtra was examined as a witness in the Court of Sessions to prove the sanction order. An application was moved by the appellant before learned Sessions Judge for rejecting the complaint on the ground that the Court had no jurisdiction to entertain the complaint. The appellant raised three contentions before the learned Sessions Judge regarding the legality of the trial and all the contentions were rejected by learned Sessions Judge. He framed a charge against the appellant Under Section 500 of Penal Code. A revision petition was filed before the High Court challenging the order of the Sessions Judge. A preliminary objection was raised about the maintainability of the revision petition which was upheld. Aggrieved party approached the Apex Court. While considering the questions involved in the case the case of Amarnath v. State of Haryana was taken into consideration. It was observed that two points were decided in that case. A revision to the High Court against the order of the Subordinate Judge is expressly barred under Sub-section (2) of Section 397 and the inherent powers contained in Section 482 would not be available. The second question was that the impugned order was not an interlocutory order. The import of words "interlocutory order" was considered in para 12 onwards. It was observed that an interlocutory order though not conclusive of the main dispute may be conclusive as to the subordinate matter with which it deals. The Honourable Court also considered a decision of the Federal Court reported in AIR 1949 FC-1, Kuppuswami Rao v. The King and observed that the test laid down therein was that if the objection of the accused succeeded, the proceedings could not have ended but not vice versa. The order can be said to be a final order only if, in either event, the action will be determined. In this case the Hon'ble Court observed that such an interpretation and the universal application of the principle that what is not a final order must be an interlocutory order is neither warranted nor justified. The Hon'ble Court went on to say "in such situation it appears to us that the real intention of the legislature was not to equate the expression 'interlocutory order' as invariably being converse of the words 'Final Order'. There may be an order passed during the course of a proceeding which may not be final in the sense noticed in Kuppuswami's case, but, it is not an interlocutory order just pure or simple. Further it was observed that rule of harmonious construction has to be applied. The bar in Sub-section (2) of Section 397 did not mean that it can be attracted to such kinds of intermediate orders. They may not be final orders for the purpose of Article 134 of the Constitution of India. It would not be correct to think as merely within the meaning of Section 397(2). The order of summoning in that case was held to be an order of the type falling in the middle course. It was not an interlocutory order so as to attract the bar of Sub-section (2) of Section 397. 8. Last case of the Apex Court in this chain on which reliance has been placed is AIR 1980 SC 962, V. C. Shukla v. State through CBI. In this case the Court considered the import of words interlocutory order appearing in Section 11(1) of the Special Courts Act, 1979. The Apex Court defined interlocutory order as well as intermediate order, and held "An interlocutory order" merely decides some point or matter essential to the progress of the suit or collateral to the issues sought but not a final decision or judgment on the matter in issue. An intermediate order was one which was made between the commencement of an action and the entry of the judgment. An order of framing of the charge being an intermediate order falls squarely within the natural meaning of the term interlocutory order as used in Section 11(1) of the Act. It was further observed that the order of framing the charge was purely an interlocutory order as it did not terminate the proceedings, but the trial goes on in culminating in acquittal or conviction. Apart from the aforesaid three decisions of the Apex Court, the learned counsel also relied upon a decision of a learned Single Judge of the Bombay High Court reported in 1982 Cr.L.J. 1025, Dr. Dattatraya Narayan Samant v. State of Maharashtra. In that case also it was held that framing of the charge was not an interlocutory order. In another decision of the Division Bench of the same High Court reported in 1981 Cr.L.J. 454, Mohanlal Devanbhai Chokshi v. J. S. Wagh it was held that an order framing a charge is not an 'interlocutory order' and as such the revision was maintainable. Similar view was expressed in a decision of a learned singe Judge of this Court reported in 1989 M.P.L.J. Page No. 343, Kuldeep Singh v. State of M.P. In that case it was held that an order of framing charge constitutes an important stage in the case and the right of an accused. The revision application challenging an order framing charge was maintainable. A latest decision of the Division Bench of Allahabad High Court reported in 1997(2) Crimes 27, Umakant Pandey v. Additional Chief Judicial Magistrate has also been relied. In that case the question was as to whether summoning order passed by Magistrate Under Section 204 Cr.P.C. was an interlocutory order. The Division Bench held that it cannot necessarily be treated as an interlocutory order, attracting bar Under Section 397(2) Criminal Procedure Code. 9. I have carefully gone through the aforesaid authorities and to my mind the law laid down in the aforesaid cases is that every order passed during the trial cannot be essentially called an interlocutory order or a final order. The test laid down in Amarnath's case still holds good. It was laid down therein that an interlocutory order merely denotes orders of a purely interim or temporary nature which do not decide or touch the important rights or the liabilities of the parties. Any order which substantially affects the right of the accused or decides certain rights of the parties cannot be said to be an interlocutory order so as to attract the bar provided Under Section 397(2). In that case certain orders were given for illustration purposes as interlocutory orders against which no revision is maintainable Under Section 397(2). It was observed in Madhu Limaye's case that an order rejecting the plea of the accused on a point which, when accepted will conclude the particular proceeding, will surely be not an interlocutory order within the meaning of Section 397(2). In the aforesaid V. C. Shukla's case Court considered the words with reference to Section 11(1) of the Special Courts Act and found that the order of framing the charge was purely interlocutory order as it did not terminate the proceedings but the trial went on culminating in acquittal or conviction. In Madhu Limaye's case it was specifically observed that an order rejecting the plea of the accused on a point which when accepted, will conclude the particular proceeding, will surely be not an interlocutory order within the meaning of Section 397(2). It, therefore, clearly goes to show that in order to take out particular order from the clutches of the interlocutory order, it must be shown that the order is such by which plea of the accused on a particular point if accepted will conclude a particular proceeding. Unless it is shown that the plea if accepted will finally conclude the proceedings, the order passed during the pendency of the case can be taken to be interlocutory order. I may also observe here that in the aforesaid authorities, the Apex Court also observed that there may be intermediate order. In V. C. Shukla 's case it was held that "in order to construe the term 'Interlocutory' it has to be construed in contradistinction to or in contrast with a final order". In other words, the words 'not a final order' must necessarily mean an interlocutory order or an intermediate order. Thus, the expression interlocutory order is not to be understood and taken to mean converse of the term 'final order'. 10. "Interlocutory order merely decides some point or matter essential to the progress of the suit or collateral to the issues sought but not a final decision or judgment on the matter in issue". An intermediate order is one which is made between the commencement of an action and the entry of the judgment. Thus, the summum bonum of the aforesaid authority, is that if an order does not put an end to the main dispute but conclusively decide the point raised in controversy, it can certainly not be said to be an interlocutory order. In other words if the plea raised finally disposes of the matter and there does not remain anything to be decided further, if accepted the order disposing of the plea, cannot be said to be an interlocutory order. 11. In the aforesaid background of law it has to be seen as to whether framing of charge is an interlocutory order or final order. In the aforesaid Amarnath 's case an order of summoning of the accused was held to be not an interlocutory order, whereas in Madhu Limaye's case an order challenging the jurisdiction of the Court to proceed with trial was also held to be not an interlocutory order. But in V. C. Shukla's case with reference to the Section 11(1) of the Special Courts Act, it was ruled that an order of framing the charge was purely an interlocutory order as it did not terminate the proceedings but the trial goes on culminating in acquittal or conviction. 12. In this view of the matter, we have to see as to how far an order of framing the charge in the case in hand amounts to an interlocutory order or not. Before entering into this point, I may also observe that in the aforesaid authority of Kuldeep Singh v. State of M.P. of this Court, the learned Single Judge took the view that, an order of framing the charge is revisable. Similarly, the Bombay High Court in the aforesaid authority also held that an order of framing the charge is not an interlocutory order within the meaning of Section 397(2). Careful perusal of these authorities shows that one important aspect has not at all been taken into consideration. To my mind, there are two main considerations Under Section 227, Criminal Procedure Code. The Court is required to take into consideration record of the case and the documents submitted therewith. After hearing the submissions of the accused and prosecution, if it concludes that there is no sufficient ground to proceed against the accused the Court has to discharge the accused. On the other hand if the Court is of the opinion that there is ground for presuming that the accused committed an offence a charge has to be framed, if the case is triable by the Court of Sessions and if it is not, it may frame a charge and transfer the case to Chief Judicial Magistrate. Thus, at the time of framing of the charge it is the duty of the Court to discharge the accused if there is no sufficient material to proceed against the accused and the reasons has to be given, but if there is ground for presuming that the accused committed an offence a charge has to be framed. In other words if the accused is discharged Under Section 227, Criminal Procedure Code or the accused prays that he has to be discharged as there is no sufficient ground against him and the plea is rejected, it certainly goes to show that his plea if accepted would have put an end to the matter. An order discharging the accused or refusing to discharge is certainly not an interlocutory order. I am supported by a decision of the Apex Court reported in J.T. 1990 (Part 2) SC 328, Haryana Reclamation and Development Corporation Ltd. v. State of Haryana. Thus, such an order is not hit by the provisions of Section 397(2) and the revision petition is maintainable. 13. The other cases is, where according to the material on record, there is ground for presuming that the accused committed a particular offence and the charge is framed. The plea of the accused is that on the basis of material on record that charge could not be framed, but a minor or other charge is made out and this plea is repelled by the Court and the charge is framed. Such an order of framing charge to my mind is certainly an interlocutory order. The reason is that if the plea of the accused that a minor or other charge is made out is accepted it will not put an end to the matter and the accused has still to be tried on the charge which can be framed according to him. It will be open to him to show at proper time that on the material on record the offence made out is minor offence. A contention has been raised to the effect that it may be said that the accused stands discharged with reference to the major offence and as such it puts an end to that content. This to my mind is not correct. The accused can be discharged only as proceeded Under Section 227. There cannot be an order of discharge if there is a ground to proceed against the accused, even if a minor charge is made out from material on record. In case a minor charge is made out even then the order of framing charge by the Court cannot be said to be a final order as it does not put an end to the controversy. It is certainly an interlocutory order because trial has to continue with respect to the minor charge as claimed by the accused. 14. I, therefore, conclude that the order passed at the time of framing the charge negativing the plea of the accused that no charge is made out and he is entitled to be discharged is not an interlocutory order and revision petition is maintainable and such an order is not hit by the provisions of Section 397(2), Criminal Procedure Code. On the other hand if the plea of the accused is that a minor charge is made out instead of charge framed by the order of framing charge, such an order is certainly an interlocutory order and the revision petition against such an order is not maintainable and is hit by provisions of Section 397(2), Criminal Procedure Code. This aspect has not been considered in the authorities of Bombay High Court cited by learned counsel or in the Single Judge authority of this Court. As such, these authorities do not help the learned counsel to show that every order of framing of charge is revisable. In the cases in hand the plea of the accused was that there was no material on record against the accused-petitioner and no charge could be framed against him. In other words it means that the petitioner claimed to be discharged. If this plea had been accepted by the Court below it would have put an end to the trial of the petitioner. This order to my mind, in view of what has been stated above is not hit by provisions of Section 397(2), Criminal Procedure Code. The preliminary objection is, therefore, repelled and it is held that the revision petitions are maintainable. They are accordingly admitted. 15. Let a copy of the order be placed on the record of connected petitions.

Author: T Shankar

Khagesh Kumar Goel vs State Of M.P. And Ors. on 4 August, 1997

Madhya Pradesh High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.38047 of 2010 1.RADHA KANT CHAUDHARY 2. TARA KANT CHAUDHARY 3. SHYAMANAND CHAUDHARY 4. SHASHI KANT CHAUDHARY ALL SONS OF VISHWANATH CHAUDHARY 5. AMOL DEVI W/O SHYAMANAND CHAUDHARY 6. SUJAN DEVI W/O TARA KANT CHAUDHARY 7. SUDAMA DEVI W/O VISHWANATH CHAUDHARY 8. SHYAMA DEVI W/O RADHA KANT CHAUDHARY..............PETITIONERS. Versus STATE OF BIHAR & ANR ----------- Vikash (Mandhata Singh, J.) 2 02. 19.11.2010 Heard the learned counsel for the petitioners and the state. Informant's lawyer is also present in the court. Submission of the learned counsel for the petitioners is that land dispute is there in between the parties, for the incident of the same day, petitioner no.3 filed a case bearing Jhanjharpur P.S. Case No.09/2008 against the complainant and others, only to save the skin this complaint is lodged in which the only non-bailable section under 379 I.P.C. Is ornamental as there is no recovery. Having regard to the facts and circumstances of the case, in the event of arrest or surrender within a period of one month from the date of receipt/production of a copy of this order, the above named petitioner shall 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 Sri K. Prasad, Judicial Magistratre, Ist Class, Jhanjharpur, District Madhubani in connection with C. R. No.131/2008, corresponding to TR. No.2853/2010, subject to the conditions as laid down under section 438(2) of the Code of Criminal Procedure.

Radha Kant Chaudhary &Amp; Ors vs State Of Bihar &Amp; Anr on 19 November, 2010

Patna High Court - Orders

IN THE HIGH COURT OF JUDICATURE AT PATNA Miscellaneous Jurisdiction Case No.81 of 2011 ====================================================== Basant Pd. Singh & Ors. .... .... Petitioner/s Versus The State Of Bihar & Ors. .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Abhay Kumar Singh, Advocate For the Respondent/s : Mr. Rajendra Kr. Jha, GP18 ====================================================== 5 27-09-2011 Pursuant to our order dated 19.9.2011, the Vice Chancellor and the Registrar of the BN Mandal University are present in Court. A show cause has been filed on their behalf in which a categorical stand has been taken in paragraphs 10 and 11 that the University is not in a position to pay the dues of current salary of the petitioners from March 2010 onwards from its limited resources and earlier it has made payment in some cases where number of petitioners were less and the fund was manageable. Further stand of the Vice Chancellor is that the University has written to the Director, Higher Education as well as the Secretary, Human Resources Development Department for funds mentioning the direction of the Full Bench vide order dated 11.3.2010 as well as in context of the present contempt petition for sanction of required funds but no reply has been received to such requests. In the aforesaid facts and circumstances, the personal Patna High Court MJC No.81 of 2011 (5) dt.27-09-2011 2 appearance of the Vice Chancellor and the Registrar is dispensed with for the time being. Leaned counsel for the State prays for some time to seek instruction as to why no reply was sent to the University and what is the stand of the State Government in the matter? As prayed on behalf of the State, let this matter be listed under the same heading on 13th October, 2011. The case shall retain its position in the list. (Shiva Kirti Singh, J) (Shivaji Pandey, J) sk

Basant Pd. Singh & Ors. vs The State Of Bihar & Ors. on 27 September, 2011

Patna High Court - Orders

Court No. - 19 Case :- SECOND APPEAL No. -- 680 of 1978 Petitioner :- Mohd. Basir & Others Respondent :- Anirudh Singh 8: OthersPetitioner Counsel :- LA. Khan Respondent Counsel :- A.N. Singh Hon'ble Saniav Misra.J. Office is directed to comply with the direction dated 7.1.2010. Order Date :- 19.1.2010 Lbm/--

Mohd. Basir & Others vs Anirudh Singh & Others on 19 January, 2010

Allahabad High Court

Title: Need to ensure remunerative prices to garlic growers particularly in Jodhpur, Rajasthan. श्री जसवंत सिंह बिश्नोई (जोधपुर) : अध्यक्ष महोदय, भारत में विदेशों से लहुसन का आयात किया जा रहा है जिससे भारत के लहुसन उत्पादक किसानों को उचित मूल्य नहीं मिल रहा है। भारतवर्ष में राजस्थान प्रदेश के खास तौर से जोधपुर के किसान आत्महत्या करने की स्थिति में आ गये हैं। यहां पर लहुसन उत्पादक किसान को १० रुपये प्रति किलो के भाव पर पड़ रहा है तथा विदेशों से लहुसन के आयातित भाव ७-८ रुपये प्रति किलो पड़ रहा है जो यहां के उत्पादन भाव से भी कम है। अत: केन्द्र सरकार से अनुरोध है कि किसानों को लहुसन का उचित मूल्य दिलाने की व्यवस्था की जाये।

Need To Ensure Remunerative Prices To Garlic Growers Particularly In ... on 3 August, 2000

Lok Sabha Debates

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Ram Vir Singh vs State Of U.P. & Others on 25 August, 2010

Allahabad High Court

nuuauuu GANGADIMR aEo:>v¢ SIG % AGE: 35 E1';AR3-l._ L Mar Ne.5£.13$_V' A 2wa%cRQF2S. moon MiLI;., EMAMMA % aamvms KAVER1NAGAR,"~ % BANGALDREVS6O'€15f.-" ..... .. ...............m I-nu-r1 wax: or KARNATAKA HIGH COURT or KARNATAKA Hm: can at THE man 00lIR.T as KARIIATAKAAT 1 Barbed this the 25"' days!' February THE I-tou's:.E ma. nmsfmk V EEBEEEEH.U ..... -4 v ?ETITI£III¥'iER %L%%%%(ay' Sm Aw, ) kjaenuxas * -sic sum REDDY AGE: 2? was T R/G no 33, GDVIND REDDY LAYOUT, NEAR GAMES!-EA TEMPL5, AREKERE, MICG LAYOUT, BANNERGHATTA ROAD, BANGALORE 76 MAHENDRA 310 B GANGADHAR REDDY V AGE: 5 YEARS E ............. mm wum Ur awmnmxn men COURI or KARNATAKA men COURT or KARNATAKA HIGH com V , V _ .4 'ti1fiday, the Court rnada the foliowing: MINOR REP HY MOTHER RENUKA S R/O NC) 33, %VIND REDBY LAYOUT, NEAR GANESHA TEMPLE, AREKERE, MICO LAYOUT, BANNEmHATFA'RQA5+h . ' BANGALDRE F6 3 AMRUTHA D10 3 FEEGQY A V AGE: 4 YEARS " V MINOR REP av MOTHER REi*é_U%*éAS " am am 3:3, Gtwxur: RED[L"!.LAYG.UT, NEAR Gmmna TEE-%?LE.'AREKER§,' Mlco LAYBUT, BANPJERC-EHATTA 2t2m,k BAN:-:ALoRE 75 V % % :::;;;V"fi.€'$!'7QNDENT5 THI$...WFw.I5 m.£u%9aA'*nrec;%%Té;;- mass A WRIT or CER'TI£?l;€AR$-- ;:RvV ,>'v'(}fj.f':}+¢fii_i V APPROPRIATE wart or cEmaRA§z.as;gu£.s%§ak.%m?¢f%_%xHPu:4c:En oases: m'.3.1o.oe 4__._ON IA;:~c;2, IN" c§:pa;:§AL msc.Mo.42s/as, PASSE-If) av %%%kfm:%c;ou:§3*%%t>2= PRL. FAMILY couar AT BANGALORE (9zsT.aHAGALénE) was Am:-n, av DECLARING THE % v'£},'LE»;f§AL mo ARBITRARY. "rims: Writ vatitsion coming on far Preliminary hearing -. .- .,......... nuan \.uum Ur mmnuum men COURI or KARNATAKA man couar or KARNATAKA I-HG!-i cow appiication is mat the husband is working as a__:::_"c'>Ior!-iqi; _ his incame do not enable him can pay than" awarded. The petitianer - husb;1:I;::1c£:.:.i§ ;a"i1§b person. He is married. 01' the rpjasri-tag; twoTVa'i1i§d rve:n V. born. As an abie-bodieé mrsan;-5%; ss%%n:¢% tfipfinfiféilfi to earn, protect and Manly because he has my work as a aaalie, thaugh the Inberim mainbenancei. "fl::":7W"'~:§{12§tant case what '3 awar-dedv'VVi'$"Va"'&éLha ¥¢E' .§&V§enanee by a wifa and two chiit3VvVr m}",,'~ wfixemiamd by the fnmiiy Caurt car:not_.ba 'fafui£'v.fiii'£h. In these days, it is not its: Ev; 1;?-ifi "" "én income of Rs.1,5¢0/- that is "a_$p:'aV;Af"d7a'd and Rs.'?50l- each an the ahiidren, whga' 'End, adszcatad and pravided with ail basic I15 flat view of tha matter, I do not find any ' twig this petition. Accordingiy, it is dssmmd. Sd/- I udge iilflf IE

Author: N.Kumar

Gangadhar Reddy S/O Munireddy vs Renuka S on 25 February, 2009

Karnataka High Court

Gujarat High Court Case Information System Print SCA/1112/2011 2/ 2 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 1112 of 2011 ========================================================= STATE OF GUJARAT THROUGH SECRETARY - Petitioner(s) Versus ANIL STARCH PRODUCTS LTD 4HROUGH GENERAL MANAGER & 6 - Respondent(s) ========================================================= Appearance : GOVERNMENT PLEADER for Petitioner(s) : 1, MR SHITAL PATEL FOR Respondent No.1 NOTICE SERVED for Respondent(s) : 3 - 7. NOTICE UNSERVED for Respondent(s) : 2, MR AJ PATEL for Respondent(s) : 4, MR RK MISHRA for Respondent(s) : 5 - 7. ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 01/04/2011 ORAL ORDER Number of questions are involved in the present petition which are required to be considered at the stage of final hearing. It also transpires from the impugned order that even the learned tribunal has relied upon the decision of the learned Single Judge of this Court rendered in the case of Prathmesh Farms Pvt. Ltd. Versus State of Gujarat, reported in (2001) 2 GLH 359, which has been subsequently set aside by the Division Bench and hence the said question is also required to be considered at the time of final hearing. Under the aforesaid circumstances, keeping all the questions open, inclusive of the preliminary objections raised by the learned advocate appearing on behalf of the respondent Nos.1 and 4 open, RULE, returnable on 2nd May, 2011. Mr.Shital Patel, learned advocate waives the service of notice of rule on behalf of the respondent No.1, Mr.A.J. Patel, learned advocate waives the service of notice of rule on behalf of the respondent No.4 and M and Mr.R.K. Mishra, learned advocate waives the service of notice of rule on behalf of the respondent Nos.5 to 7. In the meantime, all the parties are hereby directed to maintain status-quo as on today. To be placed at the bottom of the first board. [M.R. SHAH, J.] rafik     Top

Author: M.R. Shah,&Nbsp;

State vs Anil on 1 April, 2011

Gujarat High Court

[Section 4(i)] [Section 4] [Complete Act]

Central Government Act

CASE NO.: Appeal (civil) 2462 of 1999 PETITIONER: PADMJA SHARMA RESPONDENT: RATAN LAL SHARMA DATE OF JUDGMENT: 28/03/2000 BENCH: D.P. WADHWA & M.B. SHAH JUDGMENT: JUDGMENT 2000 (2) SCR 621 The Judgment of the Court was delivered by D.P. WADHWA, J. Appellant, the wife, whose marriage with the respondent has since been dissolved by decree of divorce on the ground of cruelty on the petition filed by her, has filed this appeal not only seeking enhanced maintenance for two minor children of the marriage but also for claiming the same from the date of application filed under Section 26* of the Hindu Marriage Act, 1955 (for short the 'Act) in the Family Court, ________________________________________________________________________ * 26. Custody of children - In any proceeding under this Act, the court may, from time to time, pass such interim orders and, make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes, wherever possible, and may, alter the decree, upon application by petition for the purpose, make from time to time, all such orders and provisions with respect to the custody, maintenance and education of such children as might have been made by such decree or interim orders in case the proceeding for obtaining such decree were still pending, and the court may, also from time to time revoke suspend or vary any such orders and provisions previously made . ________________________________________________________________________ Jaipur. Appellant is also aggrieved by the order of the courts below not granting her full claim of 'streedhan', litigation expenses, etc. Both the parties are Hindu. Their marriage was solemnized in accordance with Hindu rites on May 2, 1983. First child, a son, was born on January 27, 1984 and the second child, also a son, was born on June 28, 1985. Wife field petition for dissolution of marriage on May 21, 1990. She also prayed therein for return of her 'streedhan', custody and guardi-anship of the children and also for their maintenance. At the same time she also filed an application under Section 125 of Code of Criminal Procedure (Code). On August 2, 1991, wife filed a petition under Section 26 of the Act in the Family Court claiming maintenance @ Rs. 2575 per month for both the children. In the affidavit supporting the application, however, maintenance was claimed @ Rs. 2,500 per month for both the children. It was pointed out that husband was getting a salary of Rs. 6233.40 per month. Wife also claimed a sum of Rs. 1,585 as admission fee in schools for the children and Rs. 5,000 as litigation expenses. Family Court by the order dated April 7, 1992 granted maintenance under Section 125 of the Code @ Rs. 250 per month for each child. On April 30, 1992 Family Court awarded a further sum of Rs. 250 per month for each child as interim maintenance under Section 26 of the Act. Family Court also framed issues relating to the custody, guardianship and maintenance of the minor children and also regarding 'streedhan'. On October 27, 1995 wife filed another application under Section 26 of the Act wherein she drew the attention of the court to her earlier application filed on August 2, 1991. Now she claimed Rs. 2000 per month for each child. She said salary of the husband had since been increased to Rs. 12,225 in August, 1995. On August 26, 1997 yet another application was filed by wife under Section of the Act. Now she wanted maintenance for the elder child @ Rs. 3,500 per month and for the younger child @ Rs. 3,000 per month, it was pointed out that the salary of the husband was Rs. 13,683 per month and thereafter from August, 1997 it was going to be increased to Rs. 14,550 per month. Family Court by order dated September 13, 1997 consolidated both the proceedings - one under Section 13 of the Act for dissolution of the marriage and the other under Section 26 of the Act. On October 4, 1997 Family Court granted decree of divorce in favour of the wife dissblving the marriage between her and the respondent. Against claim of Rs, 1,80,000 towards 'streedhan' Family Court granted a decree of Rs. 1,00,000 as cost of the articles which prayer was granted in the alternative if the respondent did not return the articles mentioned by wife in her petition. It was also ordered that both the children, till they attain majority, should be in the custody of the mother, the appellant, and maintenance for each of the child was awarded @ Rs. 500 per month from October 4, 1997. A sum of Rs. 1,000 was awarded as cost of the litigation to the wife. Wife took the matter to the High Court seeking enhanced amount of maintenance of the children and decree for the full amount of Rs. 1,80,000. High Court, by its impugned judgment, enhanced maintenance of the children from Rs. 500 per month to Rs. 1,000 per month effective from the date of the order of the Family Court dated October 4, 1997 and awarded Rs. 500 per month for each child from the date of the application. High Court observed, though in our view not correctly, that "it is an incumbent liability on the part of the father to bear the cost of education and the maintenance express for the two children..........." High Court also observed that the respondent was "admittedly employed in a responsible position in the Reserved Bank of India where his gross pay packet amounts to Rs. 13,000 per month". During the course of hearing we have been told that the husband is employed as a clerk in the Reserve Bank of India while the appellant-wife is a lecturer in a Government college in Rajasthan. High Court rejected the prayer of the wife for enhancement of any amount from Rs. 1,00,000. High Court made certain directions for the husband to meet the children and with that we are not concerned. High Court disposed of the appeal without any order as to costs. Still the wife felt aggrieved and sought leave to appeal to this Court under Article 136 of the Constitution, which we granted. By an interim order passed on February 22, 1999 it was directed by this Court that by way of interim relief maintenance for each of the child be paid @ Rs. 1,500 per month by the respondent-husband. This Court in an appeal under Article 136 of the Constitution is not going to re-appreciate the evidence led before the Family Court. There is a concurrent finding of award of Rs. 1,00,000 to the wife though in the alternative being the cost of the articles presented at the time of the marriage which we are not going to disturb. As far as costs and special costs are concerned that again is within the discretion of the court and unless some weighty reason is shown to us we again to not think that we should unsettle the payment of award of costs by the Family Court and nor payment of costs by the High Court. Appellant says she has been harassed persistently by the husband in delaying the trial before the Family Court. But then husband also has a grievance that in the Family Court he could not get the services of a lawyer though the wife was represented by her father, who himself is a lawyer and while her father would argue in the court she would remain mute. Respondent before us has not appeared instead of notice to him. We have heard the agreements of the wife ex-parte. On February 28, 2000 an application was filed by the appellant for placing on record additional documents which are all of the period after filing of this appeal. No notice has been given to the respondent of this application. The purpose of the applica-tion appears to be to further enhance the amount of maintenance taking into account the changed circumstances as the salary of the respondent-husband is stated to have increased by passage of time. Various documents like receipts for payment of school fees, buying of books, school bags, etc. have been filed. We are not inclined to permit this application at this stage. If circumstances have changed for enhancement of maintenance appellant can approach the Family Court again as an order under Section 26 of the Act is never final and decree passed thereunder is always subject to modification. Maintenance has not been defined in the Act or between the parents whose duty it is to maintain the children. Hindu Marriage Act, 1955, Hindu Minority and Guardianship Act, 1956, Hindu Adoptions and Maintenance Act, 1956 and Hindu Succession Act, 1956 constitute a law in a coded form for the Hindus. Unless there is anything repugnant to the context definition of a particular word could be lifted from any of the four Acts constituting the law to interpret a certain provision. All these Act are to be read in conjunction with one another and interpreted accordingly. We can, therefore, go to Hindu Adoption and Maintenance Act, 1956 (for short the 'Maintenance Act') to understand the meaning of the 'maintenance'. In clause (b) of Section 3 of this Act "maintenance includes (i) in all cases, provisions for food, clothing, residence, education and medical attendance and treatment; (ii) in the case of an unmarried daughter also the reasonable expenses of and incident to her marriage" and under clause (c) "minor means a person who has not completed his or her age of eighteen years". Under Section 18 of the Maintenance Act a Hindu wife shall be entitled to be maintained by her husband during her life time. This is of course subject to certain conditions with which we are not concerned. Section 20* provides for maintenance of children and aged parents. Under this Section a Hindu is bound, during his or her life time, to maintain his or her children. A minor child so long as he is minor can claim maintenance from his or her father or mother. Section 20 is, therefore to be contrasted with Section 18. Under this Section it is as much the obligation of the father to maintain a minor child as that of the mother. It is not the law that how affluent mother may be it is the obligation only of the father to maintain the minor. In the present case both the parents are employed. If we refer to the first application filed under Section 26 of the Act by the wife she mentions that she is getting a salary of Rs. 3,100 per month and husband is getting a salary of Rs. 5,850 per month. She is, therefore, also obliged to contribute in the maintenance of the children. Salaries of both the parents have since increased with the course of time. We believe that in the same proportion, may be perhaps in the case of an employee of Reserve Bank of India at somewhat higher rate. If we take approximate salary of husband is twice as much as that of the wife, they are bound to contribute for maintenance of their children in that proportion. Family Court has already fixed a sum of Rs.. 250 per month for each of the child under Section 125 of the Code. That amount we need not touch. Considering the overall picture in the present case we are of the view that a sum of Rs. 3,000 per month for each of the child would be sufficient to maintain him, which shall be borne by both the parents in the proportion of 2:1. We, therefore, direct that respondent shall pay a sum of Rs. 2,000 per month for each of the two children aforementioned from October 4, 1997, the date of the order of the Family Court. For the earlier period ___________________________________________________________________________ * 20. Maintenance of children and aged parents. - (I) Subject to the provisions of this section a Hindu is bound, during his or her lifetime, to maintain his or her legitimate or illegitimate children and his or her aged or infirm parents. ___________________________________________________________________________ (2) A legitimate or illegitimate child may claim maintenance from his or her father or mother so long as the child is a minor. (3) The obligation of a person to maintain his or her aged or infirm parents or daughter who is unmarried extends insofar as the parent or the unmarried daughter, as the case may be, is unable to maintain himself or herself out of his or her own earnings or other property. Explanation. - In this section "parent" includes a childless stepmother respondent shall pay Rs. 500 per month for each of the child from the date of the application, i.e., August 2, 1991 and @ Rs. 1,000 per month from the date of the second application, which is October 27, 1995 and @ Rs. 1,500 per month form the date of the third application, which is August 26, 1997. These amounts shall be apart from the amount which the respondent has already been paying to the children @ Rs. 250 per month under Section 125 of the Code. Respondent shall be entitled to makes adjustment of the amounts which he has already paid under orders of the Family Court, High Court or the interim order of this Court. The appeal is thus partly allowed. There shall be no order as to costs as respondent has chosen not to appear.

Padmja Sharma vs Ratan Lal Sharma on 28 March, 2000

Supreme Court of India

Gujarat High Court Case Information System Print SCA/4225/2011 8/ 8 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 4225 of 2011 ========================================================= GOHEL HIRENKUMAR JAYANTILAL & 4 - Petitioner(s) Versus STATE OF GUJARAT - THROUGH SECRETARY & 5 - Respondent(s) ========================================================= Appearance : MRNACHIKETDMEHTA for Petitioner(s) : 1 - 5. MR MAULIK NANAVATI, AGP for Respondent(s) : 1, NOTICE SERVED for Respondent(s) : 2 - 4, 6, NOTICE SERVED BY DS for Respondent(s) : 2 - 3, 5, ========================================================= CORAM : HONOURABLE MR.JUSTICE H.K.RATHOD Date : 29/07/2011 ORAL ORDER1. Heard learned advocate Ms. Vidhi Bhatt for learned advocate Mr. Shalin Mehta appearing on behalf of petitioners, learned AGP Mr. Maulik Nanavati appearing for respondent nos.1 to 3. Rest of respondents are served but no appearance is filed on behalf of them. 2. In this matter, in all five petitioners are there. For facts and circumstances of present case, synopsis and list of events are relevant. Therefore, same is quoted as under: "The illegal action taken by the Director of Social Defence, Gujarat State, respondent no.3 on 23.12.2010 defies description. This is how it happens. The petitioners herein are assistant teachers in schools for the disabled children run by institutions duly registered and recognized by the State Government under section 51 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. They are appointed under government resolution dated 16.2.2006 issued by the Finance Department and government resolution dated 28.03.2006 issued by the Social Justice ad Empowerment Department. At the time of appointment, the petitioners were getting fixed pay of Rs.3,500/- per month. This was revised to Rs.5,000/- per month. So far, so good. On 05.10.2010, Special Civil Application o.13704/10 was filed in this Court by some 46 persons who are employed also in schools for the disabled children as attendants (peons), sweepers, clerk-cum-typists, assistant teachers, craft teachers and hostel rectors (gruhpati/gruhmata). The principal grievance of the protagonists of Special Civil Application No.13704/10 was that they were paid less then the petitioners though appointed earlier and that their service was not treated to be regular after 5 years from the date of appointment. This Court found merit in their grievance and observed in its order dated 14.10.2010 that "the Court is prima facie of the opinion that there cannot be more grave example of indifference and sheer non-application of mind on the part of the authorities.". Further, the Court issued "Rule" returnable on 23.11.2010 and by way of ad interim relief, it directed the authorities to pay to the petitioners as per the government resolutions dated 16.02.2006 and 29.04.2010 from the month of October 2010. In other words, this Court accorded parity with petitioners by interim order. This oral order dated 14.10.2010 passed in Special Civil Application No.13704/10 was facile and easy to implement. What did State Government do? Instead of increasing the fixed pay of the petitioners of Special Civil Application No.13704/10, respondent no.3 passed an order on 23.12.2010 reducing the pay of the petitioners from Rs.5,000/- per month to Rs.2,800/- per month. This means that respondent no.3 accorded parity to the petitioners with the petitioners of Special Civil Application No.13704/10 which was never asked for. This whimsical and capricious order dated 23.12.2010 was passed by respondent no.3 without prior show cause notice and hearing to the petitioners. Hence, the present petition. The petitioners are employed as assistant teachers in the schools for disabled children on a fixed monthly pay of Rs.3,500/-. Respondents no.4 to 6 are institutions for persons with disabilities as defined in Section 2(m) of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1955. The said institutions are duly registered and recognized by the State Government under Section 51 of the Act and they are provided with 100% grant-in-aid towards the salaries of their employees. 15.09.2000 - As a part of discharging the said statutory obligation to provide for rehabilitation of the disabled persons and to take affirmative action for the purpose, the State Government decided to recognize with grant-in-aid 20 institutions working in the filed of rehabilitation of disabled persons by issuance of government resolution. Managements of the said institutions thereafter invited applications from the District Employment Exchange as well as by issuing advertisements in the newspapers for recruitment on the posts of attendants (peons), sweepers, clerk-cum-typists, teachers and hostel vectors. Several candidates applied in response to the said advertisements. The dates of interview were fixed by the respondent authorities. The selection process was undertaken by the selection committee comprising of the District Social Defence Officer of the concerned district and other representatives. All those who got selected were issued appointment orders initially for a period of one year and on a fixed monthly pay o Rs.2,000/-, Rs.2,200/-, Rs.2,800/- and Rs.4,200/- in respect of attendants (peons) and sweepers, clerk-cum-typists, teachers and rectors respectively. 28.03.2006 - To respond to the increase in the number of disabled children in the State, the Social Justice and Empowerment Department, respondent no.1, issued government resolution to provide coverage to 1000 additional disabled children. Coverage of additional children would require additional staff. Therefore, 78 new posts were sanctioned under this government resolution to be filled in as per government resolution dated 16.02.2006 issued by the Finance Department, respondent no.2. Out of these 78 newly sanctioned posts, 44 posts were allocated for assistant teachers and 11 posts for craft teachers. 13.06.2006 - Thereafter, by an order, the approval of the State Government was taken for appointment of additional staff as provided for in government resolution dated 28.03.2006 and in line with government resolution dated 16.02.2006. This approval order stipulates that an assistant teacher was to be given a fixed monthly pay of Rs.3,500/-. It was also stipulated that the conditions provided in government resolution dated 16.02.2006 would govern the service of assistant teachers and craft teachers. Thereafter, public advertisements were issued by respondents no.4 to 6 for recruitment of assistant teachers and craft teachers. The petitioners applied in response to the said public advertisement. They were called for interview. On selection, they were issued appointment orders by respondent no.3. Though the petitioners were appointed initially for a period of one year, their appointments were extended periodically by separate contracts. 12.02.2009 - In year 2009 came the 6th Pay Commission and the State Government vide a government resolution, adopted the recommendations of the 6th Pay Commission. May 2010 - The petitioners got a small benefit of this. In that their fixed monthly pay was increased from Rs.3,500/- to Rs.5,000/-. 05.10.2010 - The appointees under government resolution dated 15.09.2000 filed Special Civil Application No.13704/10 in this Court seeking parity with the petitioners. The petitioners o Special Civil Applications 13704/10 were appointed before the petitioners under government resolution dated 15.09.2000. The assistant teachers and craft teachers of government resolution dated 15.09.2000 were drawing a fixed monthly pay of Rs.2,800/-. Their main grievance was that though senior to petitioners, they were paid less than the petitioners who from 01.05.2000 were drawing fixed monthly pay of Rs.5,000/-. 14.10.2010 - The following order was passed by this Court in Special Civil Application No.13704/10 - "The petitioners are the employees who were appointed pursuant to the Government Resolution dated 15.9.2000 (a copy of which is produced at Annexure-A collectively at p.30) and they are denied the benefits of Government Resolution dated 16.2.2006 only on the ground that, ' as you were appointed pursuant to a particular Government Resolution', for all time to come you will get only that fixed pay on which you were appointed and benefits flowing from any subsequent Government Resolution will not be available to you. The matter requires consideration. (emphasis supplied). RULE returnable on 23rd November 2010. Notice as to interim relief returnable on 25th October 2010. By way of ad-interim relief it is directed that the respondents authorities shall pay to the petitioners as per the Government Resolutions dated 16.2.2006 and dated 29.4.2010 from the month of October, 2010 payable in November, 2010. Direct service is permitted. A copy of this order be made available to the learned AGP Ms.Manisha Narsinghani for its onward communication for compliance." After the said order of 14.10.2010, the State Government has chosen to challenge it. However, the appeal is not yet modified and the oral order dated 14.10.2010 is not yet stayed. 04.12.2010 - Without understanding the import of the oral order dated 14.10.2010 passed by this Court in Special Civil Application No.13704/10, a written communication was addressed by the Section Officer of the Social Justice and Empowerment Department to respondent no.3 recommending that the staff appointed under government resolution dated 16.02.2006 (which includes the petitioners) be brought over to the old scheme of government resolution dated 15.09.2000. 23.12.2010 - Acting on this, respondent no.3 issued an order titled "revised order" stipulating that the petitioners' appointments would now be governed by government resolution dated 15.09.2000 instead of government resolution dated 16.02.2006 under which they were appointed. This was done with a view to reduce the petitioners fixed pay from Rs.5,000/- per month to Rs.2,800/- per month. Horrendously, this revised order was issued to the petitioners without prior show cause notice and hearing. 04.03.2011 - The petitioner no.1 addressed a representation to respondent no.1 against the revised order dated 23.12.2010 issued by respondent no.3. The representation is not attended to by respondent no.1. The revised order dated 23.12.2010 issued by respondent no.3 is to be made effective from 01.04.2011. This means that the petitioners' pay would be reduced from Rs.5,000/- to Rs.2,800/- from 01.04.2011. Hence, the present petition." 3. In view of above facts which has been given by this Court on basis of synopsis and list of dates and events, it is necessary to consider prayer made by petitioner in para-21(A) to (G). therefore, same are quoted as under: "A. Your Lordships may be pleased to issue a writ of certiorari to quash and set aside the revised order dated 23.12.2010 (Annexure-J) issued by respondent no.3. B. Your Lordships may be pleased to issue a writ of declaration to declare that the petitioners' appointments are to be governed by government resolution dated 16.02.2006 and not government resolution dated 15.09.2000. C. Your Lordships may be pleased to issue a writ of declaration to declare tat the State Government's action of changing the service conditions of the petitioners adversely without prior show cause notice and hearing and reducing their faxed monthly pay from Rs.5,000/- to Rs.2,800/- is violative of Articles 14, 16, 21 and 23 of the Constitution of India. D. Your Lordships may be pleased to issue a cease and desist order to permanently restrain the respondents from applying government resolution dated 15.09.2000 to the petitioners. E. Your Lordships may be pleased to issue a writ of mandamus commanding respondents to treat the petitioners as having been appointed under government resolution dated 16.02.2006 and to continue to apply the said resolution to the petitioners. F. Pending admission, hearing and final disposal of the present petition, Your Lordships may be pleased to stay the operation and implementation of the revised order dated 23.12.2010 issued by respondent no.3 and to restrain the respondents from applying government resolution dated 15.09.2000 to the petitioners. G. Any other and further orders being fit and proper in the interest of justice." 4. In view of prayer and facts which has been referred as above by this Court, this petition being a cross petition arising from earlier petition where short salary service conditions are required to be protected by this Court though claim has been made by earlier group of petitioners on the basis of subsequent circular. Present group of petitioners are getting benefit of salary and other service benefits on the basis of subsequent circular which has been demanded by earlier group of petitioners representing by learned advocate Mr.Pujara. Result subsequently given to that, State of Gujarat has reduced salary of present group of petitioners. Therefore, present petition is filed just to protect their service condition and salary. So it is interconnected matter arising from earlier group of petitions. 5. Recently Division Bench of this Court has passed following order on 27/7/2011 in Writ Petition (PIL) No.49 of 2011 which is quoted as under: "Question that arises in this case is whether State Government is exploiting unemployed persons by paying wages lesser than prescribed scales for same and equivalent posts on which persons are performing similar duties, responsibilities, accountabilities with same qualifications, including those who have been appointed after following legal procedure, and thereby paying less than the minimum wages. Other question is whether paying meagre wages to the police personnel and teachers will boost the corruption in the State. As the questions are of greater importance, we do not treat this petition as Public Interest Litigation in regard to any service matter, but will decide the questions as raised above. ADMIT. Respondents have appeared and filed reply affidavit. Petitioner may file rejoinder and may complete pleadings. Post the matter for hearing on 9th August, 2011 at 2.30 p.m. on the top of the list as first case." 6. In view of above order passed by this court, this petition being interconnected matter, let registry may also place this matter before the Hon'ble the Chief Justice for necessary orders. 7. Ad interim relief granted earlier in this petition is extended till next date of hearing. (H.K.RATHOD, J.) (ila)     Top

Author: H.K.Rathod,

Gohel vs State on 29 July, 2011

Gujarat High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(Crl.).No. 375 of 2008(S) 1. T.A.K. ABDULLA HAJI, ... Petitioner Vs 1. THE DISTRICT SUPERINTENDENT OF POLICE, ... Respondent 2. THE SUB INSPECTOR OF POLICE, 3. THE SUB INSPECTOR OF POLICE, 4. PARAMMEL RAHIM, 5. KOVUMBURATH RIYAS, 6. ATHIYOMOL POKKER, For Petitioner :SRI.PULIKKOOL ABUBACKER For Respondent :SRI.C.A.CHACKO The Hon'ble MR. Justice KURIAN JOSEPH The Hon'ble MR. Justice K.T.SANKARAN Dated :28/10/2008 O R D E R KURIAN JOSEPH & K.T.SANKARAN, JJ. ---------------------------------------------- W.P.(Crl) No.375 of 2008 ---------------------------------------------- Dated 28th October, 2008. J U D G M E N T Kurian Joseph, J. The mother of the alleged detenue is present along with other members of the family. Shameena, the alleged detenue is present along with Rahim, the 4th respondent. The 6th respondent, who is the father's brother of Rahim is also present. It is submitted that Rahim and Shameena have undergone a marriage at Nagur on 8.10.2008. But it is brought to our notice that though Shameena has completed 18 years, Rahim has not attained marriageable age. Sri.Pokker, the 6th respondent submits that he will see that a valid marriage is performed between Rahim and Shameena under his responsibility and leadership. Shameena submits that she will not go with her mother or other members of the family. Therefore, they submit that she may go anywhere on her own free will; but they only want her to be happy. It is further submitted that she may not trouble them hereafter. 2. Shameena submits that she may be permitted to go with the 6th respondent, who has his wife and three girl children  WP(Crl) NO.375/08 2 with him. Accordingly, the writ petition is disposed of permitting Shameena to go with Pokker (6th respondent), who shall make necessary arrangements for a valid marriage between Rahim and Shameena in due course. KURIAN JOSEPH, JUDGE. K.T.SANKARAN, JUDGE. tgs  KURIAN JOSEPH & K.T.SANKARAN, JJ ---------------------------------------------- W.P.(Crl) No.375 of 2008 ----------------------------------------------

T.A.K. Abdulla Haji vs The District Superintendent Of ... on 28 October, 2008

Kerala High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM WA.No. 1623 of 2009() 1. N.B.RAJEEV ... Petitioner Vs 1. STATE OF KERALA ... Respondent For Petitioner :SRI.V.M.KRISHNAKUMAR For Respondent :GOVERNMENT PLEADER The Hon'ble the Chief Justice MR.S.R.BANNURMATH The Hon'ble MR. Justice A.K.BASHEER Dated :03/11/2009 O R D E R S.R.Bannurmath, C.J. & A.K. Basheer, J. ------------------------------------------ W.A. No.1623 of 2009 ------------------------------------------ Dated this the 3rd day of November, 2009 JUDGMENT A.K.Basheer, J. When this writ appeal is taken up for consideration today, learned counsel for the appellant submits that, in the light of the statement dated October 9, 2009 filed by the Additional Secretary to Government, Fisheries & Ports (B) Department, the appellant is prepared to withdraw all his contentions and remit the outstanding dues of Rs.34575/- (Rupees thirtyfour thousand five hundred and seventyfive) in three equal monthly instalments and he prays for an appropriate direction in this regard. Having regard to the peculiar facts and circumstances of this case, we are satisfied that instalment facility can be granted. 2. The appellant shall remit the balance amount of Rs.34575/- (Rupees thirtyfour thousand five hundred and seventyfive) in three equal monthly instalments starting from  W.A.No.1623 of 2009 - 2 - November 16, 2009. The remaining two instalments shall be paid on or before 16th of the ensuing two months. 3. If the appellant commits default in making payment of any of the these instalments, the revenue authorities will be entitled to proceed against the appellant without any further notice. As soon as the above dues are paid off, the sureties shall be discharged from their liability. S.R.Bannurmath, Chief Justice A.K. Basheer, Judge vns 

N.B.Rajeev vs State Of Kerala on 3 November, 2009

Kerala High Court

ORDER W. Broome, J. 1. In these three connected criminal references the Second Additional District and Sessions Judge of Agra has recommended that proceedings pending against the applicants in the court of the City Magistrate of Agra Under Section 133 CrIPC should be quashed. 2. The applicants are occupying various wooden stalls and other structures standing on the footpaths bordering the Hospital Road in Agra. These structures are said to have been put up as a temporary measure in the year 1948 to accommodate refugees arriving from Pakistan. Subsequently the Shivaji Market was built for the use of refugee shop-keepers and many stallholders shifted from the Hospital Road, but the applicants refused to budge and remained in occupation of the offending structures. In December 1957 certain members of the public complained and moved the City Magistrate of Agra to take action in the matter. The Station Officer of the Agra Kotwali was asked xo make an inquiry and his report dated 9-1.1958, which is on the file, shows that these stalls were found to constitute a real obstruction to to tree How of traffic along the Public road. In. quiries were also made from the Municipal Board and its reply revealed that the Board too was alive t0 the inconvenience suffered by the public on account of the continuance: of the stalls and was contemplating filing suits for ejectment of the applicants. The learned City Magistrate accordingly decided to take action and on 17-3-1958 issued a preliminary notice Under Section 133 CrIPC calling on the applicants to remove the stalls. 3. The learned Additional District and. Sessions Judge- recommends the quashing of the I proceedings that have been taken Under Section 133 for the removal of these stalls and other structures, on (the ground that they have been allowed to re-j main in existence for a considerable time and the public have acquiesced in their continuance. In this connection he has referred o the case of Rameshwar Prasad v. State of Bihar , in which it was held that a house constructed on railway land and allowed to stand there for seven years should not be removed by an order under this section. It was remarked In that case that proceedings Under Sections 133 CrIPC should not be used as a substitute for a civil suit. I do not think however that it is possible to lay down an inflexibility rule that where a structure constituting an unlawful obstruction to a public way has been allowed to stand for a number of years it can in no case be ordered to be removed Under Section 133. It is to be noted that there is nothing in the Section itself prescribing any kind of time limit; and each case must be decided in the light of its own facts and circumstances. 4. In the present case it is no doubt true that the offending structures wer0 allowed to remain in existence for 10 years before any action was thought of Under Section 133 Cri. P. C; but it must not be forgotten that when the structures were originally erected, there was a state of desperate emergency occasioned by the sudden influx of refugees who had somehow or other to be accommodated, even at the cost of some inconvenience or curtailment of the rights of the citizens of the towns in which they sought shelter. It was in that time of emergency that the applicants were permitted to occupy structures standing on the footpaths bordering the Hospital Road in Agra; and naturally enough the State Government, the Municipal Board and the general public, bearing in mind the wider interests of the country as a whole, acquiesced in the cont, nuance of these structures so long as the refugees remained in need of rehabilitation and assistance. But when alternative accommodation became available for the applicants-, that state of emergency eam0 t0 an end and the acquiescence on the part of the Government, the Board and the public automatically ceased. Likewise the Municipal Board decided to file civil suits for abetment and the district authorities initiated the present proceedings Under Section 133. I do not think that in the peculiar circumstances of this case it can be said that the initial acquiescence] in the obstruction to the public way or the fact that the stalls and other structures were allowed j to remain in existence for 10 years before action was taken for their removal can operate as a bar to proceedings Under Section 183 CrIPC 5. In addition to supporting the ground of delay and acquiescence on which the learned Additional District and Sessions Judge has baced these references, learned Counsel for "the applicants has put forward the further argument that the stalls in question cannot be treated as an "unlawful obstruction" because they were built by the Municipal Board itself. It is not clear whether the stalls and other structures were constructed by the Board or by private enterprise; but in any case it is obvious that they were built with the permission of the Board and of the local authorities. Nevertheless it cannot be denied that the Board and the local authorities have now withdrawn their approval for the continued occupation of the said structures by the applicants; and it seems to me that with this withdrawal of approval the structures, even, though initially authorised and in a sense lawful now undoubtedly constitute au 'unlawful obstruction' within the meaning of Section 133. 6. My conclusion therefore is that there is no legal bar to the continuance of the proceedings Under Section 133 CrIPC against the applicants. These references are accordingly rejected. The records shall be returned to the City Magistrate of Agra at once, so that he may dispose of the proceedings as expeditiously as possible.

Author: W Broome

Raj Kumar And Ors. vs State Through Lal Chand And Ors. on 24 May, 1961

Allahabad High Court

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 05-09-2007 CORAM THE HON'BLE MR.JUSTICE M.JAICHANDREN Writ Petition No.23796 of 2007 and M.P.No.1 of 2007 M/s.Minda Sai Ltd., Plot No.G-42, Sidco Industrial Estate, Kakkalur, Tiruvallur. .. Petitioner. Versus The Deputy Commercial Tax Officer, Tiruvallur Asst. Circle, Tiruvallur. .. Respondent. Prayer: Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorari, to call for and quash the impugned order of the respondent in CST.No.694757/2003-04 dated 28.04.2006. For petitioner : Mr.A.R.Jeyasanker For respondent : Mr.R.Mahadevan Additional Government Pleader O R D E R Mr.R.Mahadevan, the learned Additional Government Pleader takes notice for the respondent. 2. With the consent of the learned counsels appearing on either side, the writ petition itself is taken up for final disposal. 3. The petitioner, who is engaged in the manufacture of Auto Electric components, is an assessee, on the file of the respondent herein. For the reason that the petitioner has not filed, details to prove the correctness of the Form F declaration filed under Section 6-A of the Central Sales Tax Act 1956 (in Short `the Act'), the respondent had disallowed the claim of exemption on stock transfer and determined the taxable turnover at Rs.56,24,613/- for the assessment year 2003-2004, as against the reported turnover of Rs.30,97,285/- and passed the impugned order, dated 28.04.2006. Despite the claim of the petitioner, by way of a letter, dated 10.08.2006, for the return of the said Form F declaration, for rectification and representation, the same has not been complied with. Hence, the present writ petition has been filed to quash the impugned order on the ground that no opportunity has been given to the petitioner before levying the tax impugned. 4. Though the prayer is for a larger relief, the learned counsel appearing on behalf the petitioner has submitted that it would suffice, if the letter of the petitioner, dated 10.08.2006, is disposed of by the respondent, within a specified period, as stipulated by this Court. 5. Learned Additional Government Pleader appearing for the respondent has no objection for this Court to pass such an order. 6. Considering the limited prayer sought for by the learned counsel appearing on behalf of the petitioner, without going into the merits of the case, the petitioner is directed to furnish a copy of the letter, dated 10.08.2006, before the respondent, who is directed to dispose of the same, on merits and in accordance with law within a period of six weeks from the date of receipt of a copy of this order. With the above directions, the writ petition is disposed of. No costs. Consequently, connected M.P.No.1 is closed. Index:Yes/No 05.09.2007 Internet:Yes/No csh To The Deputy Commercial Tax Officer, Tiruvallur Asst. Circle, Tiruvallur. M.JAICHANDREN J., csh Writ Petition No.23796 of 2007 05-09-2007

M/S.Minda Sai Ltd vs The Deputy Commercial Tax Officer on 5 September, 2007

Madras High Court

Court No. - 32 Case :- CRIMINAL MISC. WRIT PETITION No. - 16160 of 2008 Petitioner :- Mukesh Parashar Respondent :- State Of U.P. & Others Petitioner Counsel :- Dr. G.S.D. Mishra,Ramesh Upadhyay Respondent Counsel :- Govt. Advocate Hon'ble R.K. Agrawal,J. Hon'ble S.C. Agarwal,J. The learned AGA states on instructions that charge sheet has already been filed in this case. Filing of charge sheet would mean that the allegations in the F.I.R. have been prima facie corroborated by evidence collected during investigation. In such a situation, it would not be appropriate to enter into questions of fact and to quash the first information report. Consequently, we dismiss this writ petition without expressing any opinion on the merits of the case. The interim order dated 9.9.2008 is vacated. Order Date :- 3.2.2010 AM/-

Mukesh Parashar vs State Of U.P. & Others on 3 February, 2010

Allahabad High Court

Gujarat High Court Case Information System Print CR.A/2230/2005 2/ 2 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 2230 of 2005 ========================================================= STATE OF GUJARAT - Appellant(s) Versus BHOVANBHAI BHAGWANBHAI SINGALAPATEL & 1 - Opponent(s) ========================================================= Appearance : MR KP RAVAL, ADDL.PUBLIC PROSECUTOR for Appellant(s) : 1, MR HRIDAY BUCH for Opponent(s) : 1 - 2. ========================================================= CORAM : HONOURABLE MR.JUSTICE RAVI R.TRIPATHI and HONOURABLE MR.JUSTICE RAJESH H.SHUKLA Date : 23/10/2008 ORAL ORDER(Per : HONOURABLE MR.JUSTICE RAVI R.TRIPATHI) Heard learned APP Mr. K.P. Raval. Mr. Raval, learned APP, made available a copy of the dying declaration, deposition of PW 1, Exh. 7 - the injured eye witness ? the deceased was a maternal uncle of this witness who has turned hostile and does not support the case of the prosecution. Besides, the learned APP has also made available a copy of the deposition of Nathabhai Naranbhai Parmar, PW 2, Exh. 9 wherein it is stated that when he reached the scene of offence the incident had already taken place. This witness also does not support the case of the prosecution. Last, but not the least, Kadviben Manubhai, the widow of the deceased, PW 3, Exh. 12 has also stated that she had reached the hospital, Junagadh, where the treatment of her husband was in progress, after she received the message. It is deposed by her that when her husband regained consciousness, he told that 'Bhovan and his son-in-law had beaten him', but in her cross-examination she is not able to stand to her evidence and the same is dislodged. In view of that, the learned APP fails in assailing the judgment and order of acquittal recorded by the learned Addl. Sessions Judge, 5th Fast Track Court, Veraval in Sessions Case No. 6/2003. In the result, the appeal fails it is dismissed. The judgment and order does not warrant any interference at the hands of this court. (Ravi R. Tripathi, J.) (Rajesh H. Shukla, J.) (hn)     Top

Author: Ravi R.Tripathi,&Nbsp;Honourable H.Shukla,&Nbsp;

State vs Unknown on 23 October, 2008

Gujarat High Court

[Section 102(1)] [Section 102] [Complete Act]

Central Government Act

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 24899 of 2009(F) 1. REMADEVI.S,S/O.LATE .SUKESAN,455, ... Petitioner Vs 1. STATE OF KERALA REPRESENTED BY SECRETARY ... Respondent 2. REGIONAL TRANSPORT OFFICER,NEDUMANGAD, For Petitioner :SRI.A.RAJASIMHAN For Respondent : No Appearance The Hon'ble MR. Justice P.R.RAMACHANDRA MENON Dated :27/08/2009 O R D E R P.R.RAMACHANDRA MENON, J. ----------------------------------------------- WP(C) NO. 24899 OF 2009 ----------------------------------- Dated this the 27th day of August, 2009 J U D G M E N T The petitioner is the registered owner of the vehicle bearing No. KL 16 C 950. The grievance is that, because of some unforeseen circumstances, the vehicle could not be operated and the prescribed tax could not be cleared on time. The learned counsel for the petitioner submits that, the petitioner is ready and willing to wipe off the entire liability by way of reasonable instalments and hence that Ext.P4 memo issued in this regard is liable to be intercepted by this Court. 2. Heard the learned Government Pleader as well. 3. Considering the facts and circumstances, the petitioner is permitted to clear the entire liability including additional tax if any, which shall be cleared by way of 'four' equal monthly instalments; the first of which shall be effected on or before the 10th of September, 2009 and the remaining instalments shall be effected or before the 10th of the succeeding months. Subject to the above, all further proceedings to recover the amount from Ext.P4 shall be kept in abeyance. It is also made clear that, if any default is committed by the petitioner in satisfying the liability as above,  WPC NO.24899/2009 2 the respondent will be free to proceed with further steps for realisation of the entire amount in a lump sum. On satisfying the first instalment as above, the respondent shall release the vehicle to the petitioner. However, it is made clear that, the petitioner shall not put the vehicle on road unless and until the entire tax liability is cleared as above. The Writ Petition is disposed as above. P.R.RAMACHANDRA MENON JUDGE dnc 

Remadevi.S vs State Of Kerala Represented By ... on 27 August, 2009

Kerala High Court

RSA No. 2724 of 1989 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH RSA No. 2724 of 1989 (O&M) Date of Decision : 23.1.2009 Parbhati & others .......... Appellants Versus Budhi & others ...... Respondents CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. Amit Jain, Advocate for the appellants. Mr. H.S. Gill, Sr. Advocate with Mr. R.K. Dhiman, Advocate for the respondents. **** VINOD K. SHARMA, J. "1. Fard Badar No. 2 } 2. Fard Badar No.3 } dated 9.11.1972 3. Mutation No. 970 of 1953 4. Mutation No. 2373 of 1976 5. Mutation No. 2106 of 1975 6. Mutation No. 984 of 1953 7. Jamabandi for the year 1982-83." 23.1.2009 ( VINOD K. SHARMA ) 'sp' JUDGE This regular second appeal is directed against the judgments and decree dated 21.3.1985 and 13.9.1989 passed by the learned Courts below vide which suit filed by the plaintiff-appellants for declaration and in alternative for possession, has been ordered to be dismissed. The plaintiffs claimed that land in dispute measuring 31 Kanal 12 Marla situated in village Farizrabad Misa, Tehsil Palwal, District Faridabad is part of bigger chunk of land measuring 149 Kanal 15 Marlas. The land measuring 31 Kanal 12 Marlas was under mortgage with possession with defendant-respondents. The plaintiffs-appellant claimed that they are exclusive owner of the land. It was also pleaded that one Smt. RSA No. 2724 of 1989 2 Malho widow of Gangu was co-sharer in the disputed land to the extent of 1/3rd share and said Smt. Malho died about 15 years back. Plaintiff- appellants claimed to be collateral of husbant of Smt. Malho and accordingly got mutation of inheritance of Smt. Malho sanctioned in their name. The defendant-respondents challenged the said mutation by setting up a Will dated 7.6.1963 in their favour and on the basis of the said Will revenue officers sanctioned mutation in favour of defendant- respondents and was incorporated in the jamabandi in the year 1972-73. The defendant-respondent were shown as successors of the share of Smt. Malho. The plaintiff / appellants claimed the Will to be forged and fabricated , however, the learned trial Court vide judgment and decree dated 16.8.1976 upheld the Will and also the entries in the record of right in favour of defendant-respondents. The decree of the learned trial Court was challenged by the plaintiff-appellants in appeal. The learned Additional District Judge, Gurgaon by way of judgment dated 3.2.1979 accepted the appeal and held the Will to be a document not executed by Smt. Malho. However, in spite of the judgment and decree of the learned Additional District Judge, the defendants were continued to be recorded as co-sharer being successors of Smt. Malho. The plaintiffs filed a suit for redemption of mortgage in respect RSA No. 2724 of 1989 3 of land measuring 31K-12Ms. However, in the suit the plea was taken that they were mortgagors of ½ share in the land measuring 31K-12Ms. The suit was decreed. However, it was held that the plaintiffs would be entitled to only symbolic possession being co-sharer. In appeal it was further clarified that the appellant-plaintiffs could get actual physical possession by way of partition. In the suit now filed it was prayed that in view of the judgment and decree passed by the learned Addl. District Judge holding Will to be forged and fabricated document the entries in the revenue record could not give any title to the respondent-defendants. The suit was contested by the defendant-respondents, and their stand was, that they were co-sharer in the land and that the entries in the revenue record showing them to be co-owner were not incorrect. However, the previous litigation between the parties regarding Will was not denied. The learned trial Court dismissed the suit filed by the plaintiff- appellants. In appeal an application was moved for leading additional evidence to produce on record the following documents :- The application moved by the plaintiff-appellants, was ordered RSA No. 2724 of 1989 4 to be dismissed along with appeal. The learned lower appellate Court was pleased to observe that the appellants could not avoid the judgment Ex. D-6, which was inter se between the parties and based on the pleadings of the plaintiff-appellants. The learned lower appellate Court further held that in view of the findings recorded above, the additional evidence was not essential for effective and just decision of the case. The findings recorded by the learned trial Court were affirmed. Mr. Amit Jain, learned counsel appearing on behalf of the appellants, however, contended that the following substantial questions of law arise for consideration by this Court in this appeal :- The learned counsel for the appellants contended that in the present case the learned Courts below have dismissed the suit by taking note of the revenue entries, which were prima facie wrong and not binding in view of the judgment and decree dated 3.2.1979 passed in favour of the plaintiff-appellants wherein the Will set up by the defendant-respondents was held to be forged and fabricated document. The contention of the learned counsel for the appellants was that the judgment and decree dated 24.7.1980 was a decree vide which the suit filed by the plaintiff-appellants was ordered to be decreed with liberty to seek partition of the land. Once it was proved on record that the plaintiffs were owner of the property in view of the judgment and decree dated 3.2.1979 the said judgment could not operate as res judicata. I feel that it is not necessary at present to go into this controversy. The judgment and decree by the learned lower appellate Court deserves to be set aside, as the learned lower appellate Court has not taken into consideration the effect of judgment and decree dated 3.2.1979 which proved that the revenue record showing the defendant-respondents as co- sharer by virtue of inheritance from Smt. Malho was not correct. The learned Courts below, therefore, erred in placing reliance on Section 44 of the Punjab Land Revenue Act to hold that presumption of truth is attached to the revenue entries. The presumption is rebuttable. Once it is proved on record that the revenue entries were not correct and in fact stood corrected as was sought to be pleaded by way of additional evidence, the learned lower appellate Could should have allowed the application moved by the plaintiff / appellants under Order 41 Rule 27 of the Code of Civil Procedure and thereafter adjudicated the matter to hold if the judgment and decree dated 24.7.1980 was to operate as res judicata and whether the plaintiff's suit was liable to be dismissed in view of the RSA No. 2724 of 1989 6 judgment and decree dated 3.2.1979. The application moved by the plaintiff-appellant under Order 41 Rule 27 of the Code of Civil Procedure stands allowed and the judgment and decree passed by the learned lower appellate Court is ordered to be set aside. The case is remanded back to the learned lower appellate Court to decide the appeal on merit by taking into consideration the additional evidence brought on record. Appeal allowed.

Parbhati & Others vs Budhi & Others on 23 February, 2009

Punjab-Haryana High Court

Gujarat High Court Case Information System Print SCA/15701/2007 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 15701 of 2007 ========================================================= PRATAPBHAI JETHABHAI GHAVDA (MEMBER) & 2 - Petitioner(s) Versus STATE OF GUJARAT & 4 - Respondent(s) ========================================================= Appearance : MR JAL SOLI UNWALA for Petitioner(s) : 1 - 3. GOVERNMENT PLEADER for Respondent(s) : 1, NOTICE SERVED for Respondent(s) : 1 - 2. MR PV HATHI for Respondent(s) : 3 - 4. MS KHYATI P HATHI for Respondent(s) : 5, ========================================================= CORAM : HON'BLE SMT. JUSTICE ABHILASHA KUMARI Date : 01/08/2008 ORAL ORDER Issue Notice to the newly added respondents returnable on 29th August, 2008. (AKIL KURESHI, J.) ashish//     Top

Author: Abhilasha Kumari,&Nbsp;

Pratapbhai vs State on 1 August, 2008

Gujarat High Court

Entity Functions (a) A.P. Power i. Generation of power from all existing Corporation generating stations and those under construction by APSEB. ii. Purchases of power from Central Sector generators and the joint venture generating companies (APGPCL). iii. Purchases of power from those private generators with which APSEB has already entered into Power Purchase Agreements. iv. Purchase of power from other States. v. All major hydro stations that may come up in future. (b) A.P. Transmission i. Management of the entire Corporation Transmission System - 132 KV and above including interstate lines. ii. Expansion and upgradation of the existing transmission system. iii. Load Despatch. (c) Zonal Distribution i. Sale of power to the consumer. Companies ii. Management of the existing distribution system below 132KV including 132KV substations. iii. Expansion and upgradation of the existing distribution system. iv. Extension of supply to new consumers. 25. Chapter IX of the report of the High Level Committee deals with Regulatory Commission. The recommendations in that regard would show that SERC was conceived as an apex statutory body to deal with power sector in a very comprehensive manner. In this regard, paragraph 4.1.06 from the report of the Committee may be noticed. 220KV & 10.00% 132KV 12.50% 33 KV 20.00% 11KV 25.00% Explanation: The model working of wheeling charges is illustrated in Annexure to MOU. The voltage levels referred to above are the voltages at which power is delivered to various Participating Industries and A.P.TRANSCO. (b) It is agreed that the above rates of wheeling charges shall apply to consumers who are receiving power at the prescribed voltage levels of A.P.TRANSCO. In case the power is availed at lower voltage levels than prescribed thereby resulting in levy of surcharge, the same shall be payable to A.P.TRANSCO on the demand and energy of A.P.TRANSCO. 220 KV -- 8% 132KV -- 10% 33KV -- 15% 11KV -- 20% Below 11KV -- 25% Explanation : The model working of Wheeling Charges is illustrated in Annexure to this Memorandum of Understanding. The Voltage levels referred to above are the voltages at which power is delivered to various PARTICIPATING INDUSTRIES. APGPCL shall however collect the Wheeling Charges from the PARTICIPANTS excluding A.P.TRANSCO in the form of Sale Revenue as the billing on the Participating Industries shall be done by the APGPCL on the Net Energy Delivered which includes the energy credit given to A.P.TRANSCO. It is further agreed that Wheeling Charges is not to be levied and collected in respect of A.P. TRANSCO's share of power. All the parties to the Understanding agree that the above rates of Wheeling Charges shall apply to consumers who are receiving power at the prescribed voltage levels of A.P.TRANSCO. In case power is availed at voltage levels lower than prescribed, thereby resulting in levy of surcharge, the same shall be payable to A.P.TRANSCO on the demand and energy of A.P.TRANSCO, and as per terms and conditions of supply by A.P.TRANSCO. ORDER V.V.S. Rao, J. 1. Both these writ petitions are filed by A.P. Gas Power Corporation Limited (APGPCL), aggrieved by a common order passed by A.P. Electricity Regulatory Commission (APERC), the first respondent herein, in O.P(SR) Nos. 19 and 20 of 2004 dated 4.6.2004. This common order shall dispose of both the writ petitions. 2. O.P.(SR) No. 19 of 2004 was filed by A.P. Transmission Corporation Limited (A.P.TRANSCO) under Section 86(1)(f) of the Electricity Act, 2003 (the Act, for brevity) seeking orders from APERC to direct APGPCL to allocate surrendered energy to A.P.TRANSCO from latter's 172 MW, Stage II Power Plant on pro rata basis from the date of Memorandum of Understanding-II (MoU-II). O.P(SR) No. 20 of 2004 was also filed by A.P.TRANSCO under Section 86(1)(f) of the Act praying APERC to pass orders directing APGPCL that allocation of power from latter's power plants cannot be made to consumers other than HT Industrial Consumers as per provisions of MoU-I and MoU-II. 3. A.P.TRANSCO in its application being O.P(SR) No. 19 of 2004 contended that as per Clause 6 of MoU-II, it is entitled for full allocation of unutilized power by any participating industry and that in spite of repeated demands made by it, APGPCL did not allocate unutilized/surrendered energy by participants to A.P.TRANSCO. In its application, O.P(SR) No. 20 of 2004, A.P.TRANSCO pleaded as follows. APGPCL has two Gas Power Plants at Vijjeswaram of capacity 100 MW and 170 MW. The power generated by APGPCL is shared by participating industries in proportion to the equity contributed by them in the power plants. As per MoU-II, a participating industry can transfer their shares to medium and large scale industries having industrial connections with A.P. TRANSCO. But M/s. VBC Ferro Alloys, a participating industry sold 1.0 MW share in Stage II to M/s. Tata Tele Services Limited which comes under commercial category. By reason of this, A.P.TRANSCO will lose revenue equivalent to difference between tariff of HT commercial and industrial consumers and the loss of revenue Rs. 0.90 ps per unit. Though A.P.TRANSCO refused to give effect to transfer of shares by M/s. VBC Ferro Alloys to M/s. Tata Tele Services Limited on the ground that the latter is a commercial category consumer, APGPCL continued to allocate power to M/s. Tata Tele Services Limited and therefore a direction was sought to APGPCL not to allocate power to consumers other than HT Industrial consumers as per MoU-I and MoU-II. 4. APERC thought it necessary to issue notice to A.P.TRANSCO and APGPCL before admitting the two original petitions. Accordingly, notices were issued. In response to notices, APGPCL filed counters in both the original petitions, inter alia, making identical averments on the question of jurisdiction. APGPCL contended that the disputes raised by A.P.TRANSCO did not fall within the jurisdiction of APERC as per Section 86(1)(f) or Section 158 of the Act, that the relationship between A.P.TRANSCO and APGPCL in the matter of power allocation, power sharing and power transfer are governed by MoU-I or MoU-II entered among the shareholders and APGPCL and therefore the dispute, if any, does not fall within Section 86(1)(f) of the Act. It was also urged that any dispute in relation to or arising out of MoU-II has to be settled by way of arbitration and that APERC has no jurisdiction to resolve the dispute under 86(1)(f) of the Act. The APERC considered these aspects in the background of the provisions of the Act and came to the conclusion that disputes raised by A.P.TRANSCO are those which arose between the licensee and generating company and therefore APERC has got jurisdiction to adjudicate upon the disputes. 5. The learned Counsel for APGPCL, Sri C.V. Nagarjuna Reddy, submits that APERC has no jurisdiction to entertain and adjudicate the dispute raised by A.P.TRANSCO as no dispute pertaining to functions of A.P.TRANSCO arose. As investment made by it in the captive generating plant or generating company for the purpose of pro rata sharing of power is not part of its duties/functions under Section 39(2) of the Act. The relationship between the petitioner and second respondent is that of a company and its shareholder and therefore second respondent cannot assert its position as licensee under the provisions of the Act. All the rights of the second respondent flow from two MoUs and no dispute as such exists between petitioner and second respondent. It is nextly contended that the petitioner is a captive generating plant which is distinct from generating company. Therefore, any dispute between A.P.TRANSCO and petitioner in relation to MoU cannot be a dispute for the purpose of Section 86(1)(f) of the Act. Thirdly, it is contended that as per Article/ Clause 7 of MoU-II, all differences or disputes between the parties to MoU shall have to be settled through the arbitration and therefore the jurisdiction of APERC is not attracted. He relied on A.P. Gas Power Corporation Limited v. A.P. State Regulatory Commission, AIR 2004 SC 3090 : 2003 (4) SCALE 616 : 2004 AILD 259 (SC). 6. The learned Senior Counsel, Sri T. Anantha Babu, appearing for the second respondent submits that A.P.TRANSCO and its direct predecessor are licensees and this statutory status is not inconsistent with its being a shareholder in APGPCL. Such status as a shareholder does not deprive second respondent of its entitlement to invoke the jurisdiction of APERC. Secondly, he would urge that as per 'Memorandum of Association' of the petitioner company, it is a generating company set up with the sole purpose of generating electricity and it is not open to it to describe itself as anything other than generating company. The stand taken by the petitioner that it is a captive generating plant and not a generating company is contradictory to the stand taken by it in the earlier litigation which went up to Supreme Court. The petitioner contended before the Supreme Court that being a generating company, it does not require licence. Therefore, the petitioner cannot now be permitted to raise the plea that it is not a generating company. The dispute raised by A.P.TRANSCO is in relation to its revenue loss incurred as a licensee with regard to the acts of commission and omission of APGPCL and therefore APERC has jurisdiction to entertain the dispute. Learned Counsel placed reliance on APGPCL v. APSERC (supra) and BSES Limited and TATA Power Company Limited, . 7. In the background facts and in the light of rival submissions, the only point that would arise for consideration is whether the dispute raised by A.P. TRANSCO before APERC is a dispute within the scope of Section 86(1)(f) of the Electricity Act, 2003? 8. The Electricity Act, 2003 is an Act to consolidate the laws relating to generation, transmission, distribution, trading, use of electricity and for development of electricity industry promoting competition even while ensuring supply of electricity to all areas duly protecting the interests of the consumer. It also is a law to ensure transparent policies and for providing two-tier redressal mechanism at the Central as well as the State levels. The statement of objects and reasons for the Act would show that radical reforms in generation and transmission of electricity are sought to be ushered in by the new legislation on the principles of de-licensing and open access in transmission. It also provides for; as noticed - State Regulatory Commission, Central Regulatory Commission and an Appellate Tribunal to review the decisions of Regulatory Commissions. 9. The Act is divided into XVIII Parts. Part III deals with generation of electricity, Part IV with licensing methods and Part V deals with transmission of electricity. The fixation and administration of tariffs is contained in Part VII. Part X, which contains Sections 76 to 109 provide for constitution, powers and functions of Central Commission and State Commission. An overview of the Act especially the parts referred to herein would show that the Act brought in structural changes in generation, distribution and transmission of electrical energy. There is a distinct trichotomy among these three aspects of electricity. The Act also broadly deals with generation separately and transmission separately. As we presently see except in the matter of levying surcharge for cross-subsidy, the Act does not make any distinction between a generating company and captive generating company. Indeed except a couple of provisions in Part I (Definitions clause in Section 2 of the Act), Part III dealing with generation of electricity and in Part V dealing with transmission of electricity, the regulatory mechanism in respect of a generating company and captive generating company are the same. Both the categories are on par in the application of various statutory provisions. To appreciate this, it is necessary to notice a few provisions in the dictionary clause and other related provisions. 10. The words/terms like 'person', 'electrical plant', 'generate', 'generating company', 'generating station', 'captive generating plant' and 'utility' are defined as under: 2(8) "captive generating plant" means a power plant set up by any person to generate electricity primarily for this own use and includes a power plant set up by any co-operative society or association of persons for generating electricity primarily for use of members of such co-operative society or association. 2(22) "electrical plant" means any plant, equipment, apparatus or appliance or any part thereof used for, or connected with, the generation, transmission, distribution or supply of electricity but does not include-- (a) an electric line; or (b) a meter used for ascertaining the quantity of electricity supplied to any premises; or (c) an electrical equipment, apparatus or appliance under the control of a consumer; 2(28) "generating company" means any company or body corporate or association or body of individuals, whether incorporated or not, or artificial judicial person, which owns or operates or maintains a generating station; 2(29) "generate" means to produce electricity from a generating station for the purpose of giving supply to any premises or enabling a supply to be so given; 2(30) "generating station" or "station" means any station for generating electricity, including any building and plant with step-up transformer, switch-gear, switch yard, cables or other appurtenant equipment, if any used for that purpose and the site thereof; a site intended to be used for a generating station, and any building used for housing the operating staff of a generating station, and where electricity is generated by water-power, includes penstocks, head and tail works, main and regulating reservoirs, dams and other hydraulic works, but does not in any case include any Sub-station; 2(49) "person" shall include any company or body corporate or association or body of individuals, whether incorporated or not, or artificial juridical person; 2(75) "utility" means the electric lines or electrical plant, and includes all lands, buildings, works and materials attached thereto belonging to any person acting as a generating company or licensee under the provisions of this Act; 11. The term "person" includes a juristic person and also association of body of individuals, whether incorporated or not. The term "power plant" is not defined, though as per 2(50) of the Act "power system" means and includes inter alia generating stations and works relating to generation. Generation means to produce electricity from generating station for the purpose of giving supply to any premises. Generating station is any station for generating electricity including any building and plant with necessary accessory equipment like transformers, switch-gears, Sub-stations etc. Keeping this view, we may now consider the definition of captive generating plant. 12. As seen above, Section 2(8) of the Act, which defines "captive generating plant", contains two parts, namely, main part and inclusive part. Main part is explanatory in nature and defines "captive generating plant" to mean a power plant set up by any person (including juristic person) to generating electricity primarily for his/its own use. The inclusive part expressly includes a power plant set up by (a) any co-operative society; (b) association of persons for generating electricity for use of its members. It is to be noticed that Section 2(8) does not contain exclusionary part. The Parliament was very cautious not to add exclusionary part in the definition of 'captive generating plant'. Presumably for the reason that Section 2(8) of the Act used the words and phrases, which are defined in the dictionary clause. The term 'power plant' or the term 'for generating electricity' have the same meaning as defined in Section 2(22) and 2(29) respectively. Therefore, any electrical plant set up for generating electricity by a person, an incorporated company, a co-operative society or an association of persons is a generating plant. If such generating plant primarily utilizes the electricity produced in its generating plant for the use of its members or for its own use, the same becomes 'captive generating plant'. 13. The Government of India in exercise of their powers under Section 176 of the Act, promulgated Rules vide GSR No. 379(E), which were published in the Gazette of India extraordinary dated 8.6.2005. These Rules are called Electricity Rules, 2005. As per Rule 3 thereof, no power plant shall qualify as a captive generative plant under Section 9 read with Section 2(8) of the Act, unless 26 per cent of the ownership is held by the captive users and not less than 51 per cent of the aggregate electricity generated is consumed for captive use. Therefore, to be a captive generating plant, the requirement is that it should be an electricity generating plant or station owned to the extent of 26 per cent by captive users and 51 per cent of the aggregate electricity produced in such generating plant is consumed by such users. Further, insofar as the applicability of the provisions of the Act, the functions and regulatory authorities and the duties and functions of transmission licensees and distribution licensees except to a minor extent are the same for all generating companies whether power plants set up by them are for captive use or not. 14. The above position becomes further more clear by reference to Section 9 of the Act, which reads as under: 9. Captive Generation: -- (1) Notwithstanding anything contained in this Act, a person may construct, maintain or operate a captive generating plant and dedicated transmission lines: Provided that the supply of electricity from the captive generating plant through the grid shall be regulated in the same manner as the generating station of a generating company. (2) Every person, who has constructed a captive generating plant and maintains and operates such plant, shall have the right to open access for the purposes of carrying electricity from his captive generating plant to the destination of his use: Provided that such open access shall be subject to availability of adequate transmission facility and such availability of transmission facility shall be determined by the Central Transmission Utility or the State Transmission Utility, as the case may be; Provided further that any dispute regarding the availability of transmission facility shall be adjudicated upon by the Appropriate Commission. 15. Be it noted that as long as a generating company complies with the technical standards relating to connectivity with a grid (1. The term 'grid' as defined in Section 2(32) of the Act means the high voltage backgone system of inter-connected transmission lines. Section 2(36) defines 'inter-State transmission system' as any system for the conveyance of electricity by means of main transmission line from the territory of one State to another State, within the State or transmission of electricity by a system maintained by Central Transmission Utility. 2. Central Transmission Utility is defined in Section 2(10) of the Act as to mean any Government Company which may be notified by the Central Government and State Transmission Utility is defined in Section 2(67) of the Act means the State Electricity Board or the Government Company as notified under Section 39(4) of the Act. Under Section 39(1) of the Act the State Government has to notify the State Electricity Board as State Transmission Utility and there is no dispute in this case with AP TRANSCO is A.P. State Transmission Utility for the purpose of the Act.), such company does not require licence to operate and maintain a generating station or power plant. Section 9 enables a person or a company to construct, maintain and operate a captive generating plant with dedicated transmission lines but as per the proviso to Sub-section (1) of Section 9 of the Act, the supply of electricity from a captive generating plant through the grid shall be regulated in the same manner as the generating station or a generating company. Section 9(2) confers a right on the person who has constructed captive generating plant, to have open access for the purpose of carrying electricity from his plant to the destination of his use, subject to availability of transmission facility as determined by the State Transmission Utility or Central Transmission Utility2. As per second proviso to Sub-section (2) of the Act, any dispute regarding the availability of transmission facility shall have to be adjudicated by State Electricity Regulatory Commission. Thus, as we presently see insofar as establishing an electricity generating plant and the right to open access for the purpose of carrying electricity, or dispute resolution mechanism for the said purpose, there is no distinction between a generating company having generating station and captive generating company or plant set up by a person. 16. Though a licence is not required for setting up a generating company or captive generating plant, the law requires a licence issued under Section 14 of the Act to transmit electricity or distribute electricity or undertake trading of electricity. The State Transmission Utility shall be deemed to be transmission licensee under the Act as provided under Section 14 of the Act. Even in the method of licensing to transmit, distribute or trading electricity, the law does not distinguish a generating company and captive generating company. Part IV contains Sections 12 to 24 deal with the procedures for grant of licences, amendment/ revocation of licences. In this part, except clarifying the right of a person who has set up a captive generating plant to have open access to transmission system, the procedure for licensing in case of a person with captive generating plant opting for such licence, is the same. 17. Part V of the Act contains the procedure for Inter-State transmission of electricity, grid standards and also duties and functions of transmission utility. Part VI deals with distribution, duties of distribution licensee and provisions with respect to electricity trader. As noticed, for distribution and trading electricity, a licence is required under Section 14 of the Act. Be that as it is, Section 39 of the Act in Part V and Section 42 in Part VI are relevant to the consideration of question. Section 39(2) of the Act enumerates the functions of State Transmission Utility. As per Clause (d) of Sub-section (2) of Section 39 (1. Section 39 State Transmission Utility and Functions: -- (1) Omitted. (2)(d) to provide non-discriminatory open access to its transmission system for use by--(i) any licensee or generating company on payment of the transmission charges; or (ii) any consumer as and when such open access is provided by the State Commission under Sub-section (2) of Section 42, on payment of the transmission charges and a surcharge thereon, as may be specified by the State ommission: Provided that such surcharge shall be utilized for the purpose of meeting the requirement of current level cross-subsidy. Proviso (ii) (iii) and (iv) omitted. Provided also that such surcharge shall not be leviable in case open access is provided to a person who has established a captive generating plant for carrying the electricity to the destination of his own use.), it shall be the function of State Transmission Utility to provide non-discriminatory open access to its transmission system for use by any licensee or generating company on payment of transmission charges. It is also competent for the State Utility to fix transmission charges and surcharge thereon as specified by State Electricity Regulatory Commission to be utilized for the purpose of meeting the requirement of cross-subsidy but as per fifth proviso to Section. 39(2) of the Act, when State Transmission Utility provides open access to a captive generating plant, surcharge for the purpose of cross-subsidy cannot be levied. Except to the extent of prohibition for collection of surcharge for the purpose of cross-subsidy, Section 39 of the Act treats generating company and captive generating plant equally. So to say, the "generating company" appearing in Section 39(2)(d) also includes a captive generating plant. If such an interpretation is not opted, it would result in absurdity. For instance, in a given case, State Transmission Utility may deny open access to its transmission system to a captive generating plant on the ground that no such obligation is cast on it. In such an event, Section 9 of the Act, which confers a right on a person with captive generating plant to have open access to transmission system would be rendered redundant and meaningless. There is no provision which enumerates two different types of functions of State Transmission Utility, one in respect of generating company and other in respect of captive generating plant. 18. Section 40 of the Act describes duties of transmission licensees. Here again Section 40(c) of the Act casts a duty on a transmission licensee to provide non-discriminatory open access to its transmission system to a generating company or licensee on payment of transmission charges including surcharge for cross-subsidy. But as per fifth proviso to Section 40 of the Act, a transmission licensee is not empowered to levy surcharge on a person who established a captive generating plant for carrying electricity to the destination of such person's own use. Even under Section 42 of the Act, which enables a distribution licensee to provide distribution facilities to generating companies by duly collecting charges for wheeling including surcharge, law requires that a captive generating plant cannot be subjected to any surcharge for cross-subsidy. 19. A reading of Sections 9, 39, 40 and 42 of the Act would lead to the ensuing conclusion. A person or a company is entitled to set up a power plant for his/ its exclusive use. The power generated by such captive generating plant set up by a person has to be distributed and transmitted - in a given case; by a distribution licensee or transmission licensee. These licensees are entitled to collect transmission charges or wheeling charges as the case may be including surcharge from generating companies including from persons who set up captive generating plants but surcharge for cross-subsidy is not leviable on captive generating plant. That is the reason why the Parliament thought it fit to define 'generating plant' set up by any person for his own use as captive generating plant separately. Except to the extent of non-levy of surcharge for cross-subsidy, there is no functional dichotomy between generating plant and captive generating plant. This is further made clear by Electricity Rules, 2005. If 26 per cent of the ownership in a plant is held by captive users and 51 per cent of electricity produced is used by them, a generating plant can be treated as a captive generating plant. It only means that the electricity generated over and above 51 per cent has to be necessarily go to the grid, in which event a transmission licensee and distribution licensee come into picture. Even in the case of distribution and transmission of 51 per cent aggregate electricity generated in a captive generating plant, is to be wheeled to the destination of captive use, the same procedures have to be followed. Merely because a captive generating plant at least to the extent of 51 per cent consumes its electricity for captive use, the State Transmission Utility or a transmission licensee or distribution licensee, cannot discriminate while discharging their duties and functions. 20. In APGPCL v. APSERC (supra), the Supreme Court considered the question whether it is necessary for APGPCL to have a licence for sale or supply of electricity to participating industries and its sister concerns. Before the Supreme Court, MoU-I among A.P.TRANSCO, APGPCL and six participating industries came to be considered. The Supreme Court considered MoU-I and various provisions of A.P. Electricity Reforms Act, 1998; Electricity Act, 1910; Electricity (Supply) Act, 1948 and Electricity Act, 2003, and laid down APGPCL which set up plant for captive generation of power as a collective venture is not required to have any licence for self-utilisation of the power generated by it, that participating industries are not required to have any licence and that when electricity generated by APGPCL goes to any one or a sister concern of participating industries, it would require licence under Electricity Act, 1910. Here it is apt to extract paragraphs 32 and 47. It is pointed out by the learned Counsel for the respondents that this definition of captive generating plant which came later on in the provisions of the Electricity Act, 2003, cannot be taken aid of to assign any meaning to the expression "captive consumption" or "group captive consumption generating plant". We, however, find that there is nothing to exclude the natural and obvious meaning which flows from the expression itself. Therefore, even before the term "captive generating plant" was defined it would carry the same meaning. That is to say, generation of power for the use of the holder of the plant, may be one single person or a joint venture collectively by many as one unit. We, therefore, hold that the electricity generated by APGPCL and consumed by the participating members setting up the plant under the Memorandum of Association incorporating the company, does not require to have any licence for self-utilisation of the power generated by the company. All that we want to clarify is that it is not in view of equity in favour of the participating industries as held by the Regulatory Commission and the High Court but under the law there is no such requirement for them to have a licence.... ...As a result of the discussions held above and the findings as recorded by us, the position that emerges is that participating industries and the industries to whom participating industries have transferred their shares, consumption of electricity by them within the limits of the value of their share capital in APGPCL would only amount to captive consumption and for such utilization or consumption of self-generated electricity no licence would be required under any provision of law. So far the sister concern or concerns which have been defined as those under the same group as participating industries, it would require to have a licence if the electricity is made available or provided to them for consumption as, in our view, it shall fall within the ambit of distribution, sale or supply of the electricity and not captive consumption of power. It would be permissible without licence only in case of exemption, if granted in that behalf, by the competent authority. 21. The above observations of the Supreme Court would show that (i) the term 'captive generating plant' carries the same meaning as that of 'generating plant or generating station' with a difference that captive generating plant is primarily intended for the use of the holder of the plant, which can be a single person or joint venture collectively; (ii) the establishment, production and consumption of electricity by participating members of a captive generating plant does not require any licence under the Act; (iii) if a captive generating plant or participating entities utilize the power generated for their sister concerns, a licence would be required as it would fall within the ambit of distribution, sale of transmission of electricity and does not amount to captive consumption. This decision, on which the learned Counsel for the petitioners relied, does not support the submission that captive generating plant set up by a person is different from generating plant set up by a generating company. As submitted by the learned Senior Counsel for A.P.TRANSCO, it indeed supports the view that both have the same meaning because unless it is a generating station/electric plant engaged in production of electricity, the same cannot be a captive generating plant when the electricity generated is consumed by the person/persons, who set up such plant. The Act also does not make any distinction with regard to the licensing procedures, tariff fixation (in case of supply of excess generation to State Transmission Utility for the purpose of other consumers) and regulatory measures taken care of by Electricity Act. The attention of this Court is invited to Memorandum of Association of APGPCL, which categorically declares that the company is being incorporated, inter alia, to generate, supply and distribute electricity by setting the power plants anywhere in India using different resources and transmit, distribute and supply power to industries and other consumers of electricity through A.P.TRANSCO. This also belies any contra submission made by the learned Counsel for APGPCL. 22. When the Legislature intended to constitute Electricity Regulatory Commission conferring powers on it in the matter of grant of licences for transmission, distribution and trading of electricity, amendment and revocation of licence, the power to fix transmission charges, wheeling charges and surcharge thereon and enumerated functions to be discharged by the State Commission, did the Legislature intend to exclude captive generating plant from Section 86(1)(f) of the Act? It is submitted by the learned Counsel for APGPCL that the jural relationship between A.P.TRANSCO and APGPCL is not statutory but regulated by the contract i.e., MoU-I and MoU-II - and therefore the dispute does not fall within the ambit of Section 86(1)(f) of the Act? This submission needs to be considered in the background of the MoU-II and statutory provisions. 23. The admitted facts are that A.P. TRANSCO is deemed licensee for transmission, distribution and sale of electricity. It is State Transmission Utility and the transmission system of the State is owned by it and that it is subject to regulation by APERC in all its relations with Independent Power Projects (IPP), generating electricity, independent distribution companies if any, and captive generating plants. It is also not in dispute that A.P.TRANSCO is only organization dedicated to wheeling energy whether such electricity is produced by A.P.GENCO, IPPs or captive generating plants. After implementation of electricity reforms in India and especially in the State of Andhra Pradesh, the relationship of A.P.TRANSCO with generating companies in public sector as well as private sector are not only regulated by agreement between A.P.TRANSCO and other utility but also the provisions of Electricity Act, 2003 and the provisions of A.P. Electricity Reforms Act, 1998, insofar as the same is not inconsistent with Electricity Act. A reference to Sections 49 and 62(1) of the Act make this clear. 24. After Government of India announced liberalized economic policy in 1991 for attracting investment in power sector, the State Government decided to encourage IPPs. Government of Andhra Pradesh appointed a High Level Committee with Sri Hiten Bhaya as Chairman to provide guidelines on restructuring power sector and a tariff policy. The committee after conducting a detailed study into various aspects submitted its report in April, 1995. The conclusions of the study are found in Chapter X of the report. While recommending restructuring of A.P. State Electricity Board, it was suggested to unbundle the same into A.P. Power Corporation, A.P. Transmission Corporation and Zonal Distribution companies. The functions of these new entities as recommended by Hiten Bhaya Committee are as follows. 4.1.06 Regulation:--Regulation implies adjusting the flow of activities as necessary, as distinct from control which implies the possibility of stopping an activity altogether. For reasons mentioned above, a regulatory body should be set up even before or at least along with the restructuring of SEB. This has been the experience elsewhere in the world also. Our concept of a Regulatory Commission is that it should be able to look after the interests of both the producer and the consumer so that the gains of competition and efficiency can be shared fairly and that the producer fulfils his obligations in regard to the quantity and quality norms laid down. The power industry like others also needs to conform to safety and environmental standards. There are government bodies in existence for the latter functions, therefore, we felt that the proposed Regulatory Commission should mainly concern itself with Tariff and operating performance of the generating and distribution agencies. Since both the public and private agencies will be operating in the field, it is necessary that the Regulatory Commission be totally independent of the Government like a judicial body. 26. The report of Hiten Bhaya Committee led to Electricity Reforms in State of Andhra Pradesh and passing of A.P. Electricity Reform Act, 1998 whereunder erstwhile State Electricity Board was unbundled into separate companies for transmission and generation of electricity. After going through copy of the report, which is placed before this Court, it is not possible to accept any submission that captive generating plant set up by a person for his own use was intended to be outside the redressal mechanism either under A.P. Act or Central Act, 2003. As noticed already, captive generating plant set up by a person was only given certain concessions by Legislature in the matter of levying surcharge for the purpose of cross-subsidy. 27. Chapter VII deals with regulation of tariff. This power of fixing of tariff for electricity, its distribution and transmission is exclusively conferred on SERC. The power to specify terms and conditions for determination of tariff are also conferred on SERC. Here again, no distinction is made between a generating company and captive generating company though while determining the tariff, SERC cannot ignore the benefit conferred on captive generating plant in the matter of levying surcharge for cross-subsidy or distribution and transmission of electricity. As per Electricity Rules, it is now permissible for a captive generating plant to supply electricity over and above 51 per cent to other consumers through State Transmission Utility. In such an event, the tariff that a generating plant can levy, can be as determined by SERC in the case of generating companies. Assuming that there is a dispute between a captive generating plant and one of its consumers (not participating industries), such a dispute cannot be resolved except in accordance with Section 86 of the Act. 28. Learned Counsel for APGPCL made an alternative submission that the dispute now raised by A.P.TRANSCO is in relation to the enforcement of the covenants of MoU-II, that it and does not pertain to its distribution or transmission functions, and therefore the dispute goes out of the purview of APERC. The submission again does not commend itself to this Court as it is devoid of merit and ignores the role of A.P.TRANSCO as State Transmission utility. 29. It is settled that while interpreting a document/contract, intention of parties has to be assessed by referring to attending and surrounding circumstances at or about entering into contract. It is brought to the notice of this Court that MoU-I was entered into on 17.10.1988 between A.P.TRANSCO as first part and six private enterprises/ industries for the purpose of formation and registration of a new company, namely, APGPCL. The company was to be floated for the purpose of setting up a natural gas based power generation station at Vijjeswaram in Andhra Pradesh. Apart from dealing with the shareholding pattern of the six participating industries, it was also agreed that A.P.TRANSCO and other industries would share power energy generated by APGPCL in proportion to their share capital, which would be regulated on monthly basis. It was also agreed that APGPCL will go parallel with A.P. System and all participating industries will be common consumers of A.P.TRANSCO and APGPCL. In case of a participating industry, power allocated by APGPCL shall be billed as per the tariff rates of APGPCL and the power in excess of allocation utilized by participating industry shall be billed by A.P.TRANSCO as per its tariff rates. Clause 10 deals with transmission and it reads as under. 10 (a) It is agreed that the power station of APGPCL will work parallel with the A.P. System. A.P.TRANSCO agrees to transmit the power generated by APGPCL to the Participating Industries. For such transmission A.P.TRANSCO agree to receive wheeling charges from APGPCL in kind viz. as a percentage of the energy put into the A.P. System at the Generating Station of APGPCL. Such wheeling charges shall be as follows: 30. As per the above clause, whatever power that is generated by APGPCL has to be wheeled and transmitted by A.P.TRANSCO and wheeling charges are levied in kind as a percentage of energy put into A.P. Transmission System controlled by A.P.TRANSCO. In the event of outages, as per Clause 13, A.P.TRANSCO has to supplement the power of the participating industries. A reading of other clauses of the agreement would show that A.P.TRANSCO was assigned a major role in the success of APGPCL as a collaborative effort on the part of State Public Utility, participating industries and APGPCL set up by them. It is not only as a participating industry that A.P.TRANSCO is conferred with rights and liabilities, but as a State Transmission Utility an obligation is cast on A.P.TRANSCO in the matter of transmission of energy. 31. In 1997, probably encouraged by the success of the first gas based power plant, APGPCL proposed to set up second unit with the capacity of 172 MW. Therefore, it accepted additional share capital to the extent of Rs. 4,60,96,119/- with face value of each share Rs. 10/- from twenty-three industries having HT industrial connections with A.P.TRANSCO. MoU-II is dated 19.4.1997. It may be noticed that by the time MoU-II was entered into by A.P.TRANSCO and APGPCL with other participating industries, the organization(s) gained considerable experience in running the venture. All problems that my crop up, either on day to day basis or periodically and ways to get over the problems were known. That may be one reason why MoU-II is more elaborate than MoU-I. As we presently see, MoU-II visualizes almost every crisis that might arise in power generation, distribution, transmission, maintenance and the like. MoU-II provides for all these eventualities. 32. Contract Demand (CD) is equal to entitlement of participating industries in the power generating station and Contracted Maximum Demand (CMD) means the demand contracted by a participating industry with A.P.TRANSCO. 'Scheduled outages' is defined as shutting down for plant maintenance and repairs of the plant with thirty days prior notice, which shall be undertaken by APGPCL in co-ordination with A.P.TRANSCO during the period of surplus power of the A.P.TRANSCO i.e., from August to November. 'Unscheduled outages' is defined as shutting down the plant for repairs and/or maintenance during the break down of the plant, non-availability of the fuel and forced shut down of the plant, which cannot be predicted in advance. It is also necessary to notice that the power generated by APGPCL is released to the grid through "inter-connection point" which is defined as the point at the outgoing site of 220KV feeder where the power generation station and grid are connected in the APGPCL switch yard. MoU-II contains eight Articles, Article 1 contains definitions and Article 2 contains covenants regarding demand and energy sharing. The aspects like energy generation, distribution and pricing are incorporated in Article 3 whereas Article 4 deals with capital structure of APGPCL. Articles 5 to 8 deal with other maters, which may not be much relevant for the purpose of this judgment. 33. Article 2 contains the method and manner of sharing energy generated by APGPCL in its unit II. As per Article 2.2, the participating industries may transfer their share of ownership to their sister concerns situated in the State of Andhra Pradesh, who are HT consumers of A.P.TRANSCO. It was also agreed that A.P.TRANSCO shall have the right to sell its share of energy and power to its consumer including the participating industries of APGPCL at the tariff rates of A.P.TRANSCO. Be it noted that as per MoU-II, A.P.TRANSCO is entitled to 42.80 MW of electricity produced by APGPCL in its unit II. It is entitled to sell its share of energy and power to its consumer including participating industries. Not only this whenever a participating industry desires to transfer its share of energy to its sister concern in the State of Andhra Pradesh, the same shall be informed to A.P.TRANSCO. Whenever a participating industry is not able to utilise its share allocated by APGPCL, it is required to give advance notice of at least fifteen days before billing month and such unutilized allocation can be reallocated to other participants on pro rata basis. If a participating industry fails to give fifteen days notice, A.P.TRANSCO has right of getting allocation of unutilized energy of a participating industry. Apart from Articles 2.2 and 2.6, Article 4.5 also confers a right on the A.P.TRANSCO. Under Article 4.5, whenever a participating industry transfers its shares to outsiders with approval of Board of Directors of APGPCL, A.P.TRANSCO is entitled to levy and collect wheeling charges with reference to voltage of supply of transferee, which is certainly different rate of tariff in comparison with the tariff applicable to the participating industry. 34. Article 2.3 casts an obligation on A.P.TRANSCO. According to this Article, in the event of Scheduled or Unscheduled outages of APGPCL, A.P.TRANSCO has to supplement power, duly collecting the prevailing rates of tariff, and at a rate equal to 133 per cent of prevailing A.P.TRANSCO tariff in the event of unscheduled outages. Under Article 2.5, no participating industry can reduce its CMD without prior approval of A.P.TRANSCO and whenever the participating industry exceed aggregate of eligible demand, it is liable for penal provisions for such excess demand as per terms and conditions of contract and tariff. Excess power availed shall be deemed as drawn from A.P.TRANSCO and billed accordingly. 35. Article 3.1 contains the covenant regarding energy generation and basis for wheeling charges. The same reads as under: 3.1 It is agreed by all the parties to this Understanding that the proposed Power Generating Station of APGPCL will operate in parallel with the A.P.TRANSCO Grid. A.P.TRANSCO agrees to transmit the power delivered by APGPCL to the Participating Industries subject to system constraints and exigencies. For such transmission A.P.TRANSCO agrees to receive Wheeling Charges from APGPCL in kind viz. as a percentage of the energy delivered at the Interconnection Point to the A.P. System at the Power Generating Station of APGPCL. Such Wheeling Charges shall be as follows: 36. A reading of the above clause would show that the power generated by APGPCL is transmitted by A.P.TRANSCO subject to A.P.TRANSCO receiving wheeling charges from APGPCL in kind as a percentage of energy delivered at the interconnection point to A.P. System. Further, APGPCL is entitled to collect wheeling charges from participating industry excluding A.P.TRANSCO in the form of sale revenue but in case of levy of surcharge for receiving at lower voltage levels, the same shall be payable to A.P.TRANSCO on demand energy of A.P.TRANSCO. Article 7 provides for arbitration for resolution of all differences and disputes between the parties arising out of agreement. 37. An analysis of the relevant Articles in MoU-II would show that in the matter of contributing share capital, in the matter of setting up of generating plant and maintenance of it, in the matter of transmission of energy and in the event of transfer of shares by participating industries, A.P.TRANSCO is given a unique place of primacy. If the generation falls short, it is the duty of the A.P.TRANSCO to supplement shortage of power. APGPCL cannot on its own undertake maintenance of its electrical generation plant without coordination of A.P.TRANSCO. In the event of scheduled or unscheduled outages, it is the A.P.TRANSCO which takes role of saviour. Even in the event of transfer of energy share by a participating industry to its sister concern or in the matter of unutilized share of energy by a participating industry, A.P.TRANSCO is conferred with a right of preemption to get the allocation of the energy. A.P.TRANSCO is even entitled to charge higher rate of tariff as and when it supplies energy over and above CMD. All this would lead that A.P.TRANSCO has rights and liabilities apart from those conferred on it by the Articles of MoU-II. Its status of being transmission licensee and State Transmission Utility without whose presence APGPCL cannot successfully carry on its project remain intact. When A.P.TRANSCO complains that APGPCL failed to discharge its obligations in allocating unutilized energy share of a participating industry and that APGPCL permitted transfer of shares of participating industry to an outsider whose electrical connection falls in a different category, the dispute cannot be said to be only in relation to MoU-II. It is certainly something more that what the agreement stipulates. For instance, though A.P.TRANSCO has a share equivalent of 42.80 MW in the energy generated by APGPCL, in the event of enforcement of Articles 2.2, 2.6 or 4.5 besides other Articles, the share of A.P.TRANSCO would certainly go up and might increase its revenues because under MoU-II, A.P.TRANSCO is entitled to sell its share to its consumers. In the event of APGPCL permitting the transfer of share by a participating industry to an unqualified outsider, the right of the A.P.TRANSCO would be defeated resulting in revenue loss. Therefore, it is not possible to accept the argument that the dispute between A.P.TRANSCO and APGPCL in connection with MoU-II does not fall under Section 86(1)(f) of the Act. A reading of Section 86(1)(f) of the Act would show that all disputes between the licensee and generating company are to be adjudicated by SERC. The dispute that is brought by A.P.TRANSCO is a dispute between licensee and generating company and therefore SERC has jurisdiction to adjudicate the same. 38. Before parting with this case, it is necessary to observe that the power is 2005(6) FR-F-25 conferred on State Commission to Act as an effective grievance redressal forum in the matter of generation, distribution, transmission of electricity and tariff fixation. These are the matters which brook no delay. Therefore, APSERC instead of determining the issues at preliminary stage and final stage, should always decide all the issues at one time. The procedure of issuing a notice to contending respondents at the time of admission is not contemplated under the Act. Indeed whenever an application is filed APSERC is bound to look into the same and give appropriate disposal. It has no discretion either to admit or reject the case. It can even summarily reject petitions but the method of hearing preliminary objections is not warranted under the Scheme of the Act. If at the stage of determination of preliminary objections, the cases are kept pending in the Courts, the very purpose for which State Commission is constituted would be lost. Under Sub-section (3) of Section 86, the State Commission shall have to ensure transparency while exercising its powers, discharging its functions and be guided by National Electricity Policy and National Electricity Plan on tariff policy Regulations made by it under Section 181 of the Act. 39. The writ petitions are devoid of merit and are accordingly dismissed without any order as to costs.

Author: V Rao

A.P. Gas Power Corporation Ltd. vs A.P. Electricity Regulatory ... on 27 July, 2005

Andhra High Court

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Faidul Haq vs State on 6 September, 2010

Allahabad High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.15991 of 2009 NAWAL KISHORE VERMA S/O SRI SARYUG PRASAD VERMA VILL- TEHTA, P.S. TEHTA, DISTT. JEHANABAD ............ PETITIONER. Versus 1. THE STATE OF BIHAR THROUGH THE DIRECTOR-IN-CHIEF HEALTH SERVICES, BIHAR, PATNA 2. THE SPECIAL OFFICER HEALTH SERVICES (H) BIHAR, PATNA 3. THE DIRECTOR HEALTH SERVICES, BIHAR, PATNA 4. THE DEPUTY DIRECTOR HEALTH SERVICES, BIHAR, PATNA 5. THE CIVIL SURGEON-CUM-CHIEF MEDICAL OFFICER MUZAFFARPUR 6. THE INCHARGE, MEDICAL OFFICER SAKRA, MUZAFFARPUR ............ RESPONDENTS. ----------- DKS/ (Mridula Mishra, J.) 03/ 25.07.2011 Counsel for the petitioner submits that grievance of the petitioner has already been redressed, as such he may be permitted to withdraw this application. Prayer is allowed. This application is dismissed as withdrawn.

Nawal Kishore Verma vs The State Of Bihar & Ors on 25 July, 2011

Patna High Court - Orders

JUDGMENT Mitter, J. 1. In this case the lower Courts dismissed the plaintiffs' claim, because they were of opinion that there had been a misjoinder of parties, and such a joinder of causes of action as would not be allowed under the law. 2. After going through the plaint and the written statement, and hearing the learned Pleaders engaged on behalf of the plaintiffs, and one of the defendants Raja Ramrunjun Chuckerbutty, who has alone appeared in this Court, we think that the grounds upon which the Courts below have dismissed the suit are erroneous. The plaintiff's in this suit seek for alternative relief,--viz., for possession of a 4-anna share of a patni taluk; or failing in this, for the recovery of the rent of that share from the defendants from Assar 1281 (1874), to the end of the year 1282 (1875). They allege that their ancestor, Thakoordass Mookerjee, was the owner of a 12-anna share of the zemindari under which the patni is held; that upon a partition between the plaintiffs' ancestor, Rakhaldass Mookerjee and the other heirs of Thakoordass, Rakhaldass became entitled to a 4-anna share of that zemindari; that the defendant No. 3, Ishanchunder Sen, was recorded as the patnidar; that the plaintiffs brought a suit for arrears of rent from Joisto 1280 (May 1873) to Joisto 1281 (May 1874) against Ishanchunder on account of their 4-anna share of the zemindari; that a decree having been obtained, the said 4-anna share of the patni was sold and purchased by the defendant No. 6, Lukhinarain Ghose, on the 4th Bysack 1282 (16th April 1875); that there was a previous decree for rent on account of this 4-anna share of the patni, that is to say, for rent up to Pous 1281 (December 1874); and that in execution of that decree, the aforesaid 4-anna share was again put up for sale, and was purchased by the plaintiffs for Rs. 100. The plaintiff's further allege that after their purchase, they could not get possession, the defendants Nos. 1, 2 and 5, Anauthnath Deb, Raja Ramrunjun and Taraprosonno Mookherjee, and the defendant No. 3 Ishanchunder, his son Dhonkristo, the defendant No. 4, and the defendant No. 6 Lukhinarain, throwing obstacles in the way of their taking possession of the share purchased by them. The plaintiff's also allege that not only they have not been allowed to take possession, but that these defendants, although in possession, have not paid the rent due on account of their 4-anna share. Upon these facts they pray that either possession be given to them over the 4-anna share, or a decree for rent for the period commencing from Assar 1281 (1874) to the end of that year be passed against all the defendants except the defendant No. 3, and that a similar decree for the rent of 1282 (1875) be passed against all the defendants. The suit was brought against all the six defendants mentioned above. 3. The defendant No. 1, Anauthnath, claims only a 4-anna share in the whole patni. The defendant No. 2, Raja Ramrunjun, besides claiming another 4-anna share in the patni, also sets up a right to the possession of the land of the patni under an alleged darpatni title. The defendant No. 5, Taraprosonno Mookerjee, claims the remaining 8-anna share in the patni. The other defendants disclaim any connection with the property. 4. The facts stated in the written statements go to show that this property had been originally held and owned by two brothers, Ashootosh Deb and Promothonath Deb, in the benami name of the defendant Ishanchunder. Anauthnath, the defendant No. 1, is one of the sons of Promothonath, his other son being Monmothonath, and he therefore claims only a 4-anna share. Taraprosonno alleges that he has purchased the rights of Ashootosh Deb, and therefore he claims an 8-anna share in the property. Raja Ramrunjun, as regards the patni right, claims to represent Monmothonath, the other son of Promothonath. 5. Upon these statements made in the plaint and written statements of the parties, they were allowed to adduce evidence in support of their respective allegations, and after the evidence was completed, the Subordinate Judge seems to have thought that the case in its present shape could not be tried, it being open to the objections mentioned above. The Subordinate Judge says: "From the evidence, it appears that the plaintiffs have no cause of action for the share claimed as against all the defendants, excepting Raja Ramrunjun Chuckerbutty, or for rent due from Magh 1281 (1874) to Bhadro 1282 (1875) as against the defendant No. 5, Babu Taraprosonno Mookerjee." Without deciding the case upon the merits, the Subordinate Judge, as already stated, dismissed the plaintiff's suit. The District Judge has also taken the same view of the matter. 6. Now, as regards the plaintiff's claim for possession, we fail to understand upon what ground the Subordinate Judge thinks that they have no cause of action for the share claimed as against any of the defendants other than Raja Ramrunjun. It is clear from the judgment of the Subordinate Judge that he does not proceed simply upon the statements in the plaint, because he says: "These facts appear from the evidence." Now, so far as the facts admitted and found go, it appears that the plaintiffs claimed to recover possession of the 4-anna share of the patni in dispute in the joint possession of the defendants Anauthnath, Raja Ramrunjun, and Taraprosonno, and that the other defendants are not in possession at all of the property. That being so, it may be that the plaintiffs have no cause of action as regards the claim for possession against the defendants other than those mentioned above. But that would be no ground for dismissing the plaintiffs' suit in toto. Then, further on, the Subordinate Judge says: "Again, the suit is bad on account of the plaintiffs' claims for the rents of 1281 and 1282 (1874-75) being joined in one suit. They cannot show that they have any cause of action for the rent of 1281 as against Baboo Taraprosonno Mookerjee. He had no concern with the taluk for which rent has been claimed for 1281. He may be liable for the rent due on account of a portion of the next year. Therefore, the plaintiffs' claim for the rent of the year 1281 lies against some of the defendants, and not against Baboo Taraprosonno, and their claim for the rent due on account of a portion of the year 1282, from Assin to Choitro, lies against Baboo Taraprosonno and others. I am of opinion that such two claims cannot be joined in one suit. See Section 45, Act X of 1877. And then the Subordinate Judge quotes certain decisions of this Court in support of this view, which decisions, it may be observed here, were passed with reference to the Procedure Code of 1859. This case is admittedly governed by the Procedure Code of 1877. 7. Now, is the fact of one portion of the claim for rent being directed against some of the defendants, and the other portion against others, in any way a bar to the maintenance of this suit under the provisions of the present Procedure Code? The Subordinate Judge thinks that Section 45 stands in the way of the plaintiffs in framing their suit in the way they have done. We think that in this respect he has overlooked the provisions of the other parts of the Code, and that he should have decided this question not with reference to Section 45 alone, but with reference to the other sections of the Code which bear upon the same subject. Section 28 says: "All persons may be joined as defendants against whom the right to any relief is alleged to exist, whether jointly, severally, or in the alternative in respect of the same matter, and judgment may be given against such one or more of the defendants as may be found to be liable, according to their respective liabilities without any amendment." Now, as regards the claim for possession, as it has been already observed, it is directed against the persons in possession of the property, and if some of the defendants are found not to be in possession, that would be no ground for dismissing the suit. In respect of the claim for rent, all that has been said in that part of the Subordinate Judge's judgment, which has been cited above, is that a portion of the claim is not sustainable against one of the defendants, viz., Taraprosonno. That is no ground for dismissing the suit. The section quoted above says that judgment may be given against such one or more of the defendants as may be found to be liable according to their respective liabilities. It is, therefore, quite clear, that although the defendant Taraprosonno might not be liable for the rent of 1281 (1874), that is not a valid ground to hold that he could not be sued in one suit along with the other defendants who might be liable for the rent of that year. Therefore, it appears to us that the frame of the present suit is entirely in accordance with the provisions of the Procedure Code. Even if it were not so, we think that having regard to the provisions of Sections 81 and 45, the Courts below should not have dismissed the suit, but should have separated the distinct causes of action, if there were many, and should have tried them separately. Section 31 says: "No suit shall be defeated by reason of the misjoinder of parties, and the Court may, in every suit, deal with the matter in controversy so far as regards the rights and interests of the parties actually before it." This is a clear provision that a suit is not liable to be defeated merely by reason of the misjoinder of parties. No doubt the next paragraph of the section goes to show, that "nothing in this section shall be deemed to enable plaintiff's to join in respect of distinct causes of action"; but reading this provision with Section 45, it is evident that when distinct causes of action are improperly joined, the Court, instead of dismissing the suit, should proceed to separate them and try them separately. But as we have already observed, in this case there was no misjoinder of parties, and there was no improper joinder of distinct causes of action, the frame of the suit was entirely in accordance with the provisions of Section 28 of the Procedure Code. 8. We, therefore, set aside the decrees of the Courts below, and remand the case for trial upon the merits, to the Court of first instance. Costs will abide the result.

Author: Mitter

Janokinath Mookerjee And Anr. vs Ramrunjun Chuckerbutty And Ors. on 17 January, 1879

Calcutta High Court

[Section 24(2)] [Section 24] [Complete Act]

Central Government Act

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Rajeev Singh vs State Of U.P. & Others on 28 August, 2010

Allahabad High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 17991 of 2010(Y) 1. THE PRINCIPAL, NEHRU COLLEGE OF ... Petitioner Vs 1. THE DISTRICT SUPERINTENDENT OF POLICE, ... Respondent 2. THE DEPUTY SUPERINTENDENT OF POLICE, 3. THE CIRCLE INSPECTOR OF POLICE, 4. THE SUB-INSPECTOR OF POLICE, For Petitioner :SRI.GEORGE JACOB (JOSE) For Respondent : No Appearance The Hon'ble MR. Justice K.M.JOSEPH The Hon'ble MR. Justice M.L.JOSEPH FRANCIS Dated :21/06/2010 O R D E R K. M. JOSEPH & M.L. JOSEPH FRANCIS, JJ. -------------------------------------------------- W.P(C). NO. 17991 OF 2010 Y --------------------------------------------------- Dated this the 21st June, 2010 JUDGMENT K.M. Joseph, J. The prayers in the Writ Petition are as follows: "i) Issue a writ in the nature of mandamus or other appropriate writ or order directing respondents 1 to 4 to grant adequate police protection to the petitioner and the College premises for the smooth conduct of the On-going University Examinations for the First Year Engineering students and the IVth Year Pharmacy students and to prevent any further untoward incident in the College premises. ii) Issue a declaration that the respondent Police Officers have a statutory duty and responsibility to afford adequate police protection to the petitioner, the College and the students appearing for the University Examinations to ensure that no disruption or nuisance is caused by any person or unruly element in the locality."  WPC.17991/2010 Y 2 2. We have already passed an order after hearing the learned Government Pleader also. Today, when the matter came up, it is submitted on behalf of the petitioner that the Examination is postponed to 23.06.2010 and the Practical Examinations will commence on 28.06.2010. We dispose of the Writ Petition as follows: We direct that the interim order will continue for the Examination on 23.06.2010 and for the Practical Examinations scheduled to be commenced from 28.06.2010 till the Practical Examinations end. In order to enable protection to be granted, the petitioner will intimate the dates of the Practical Examinations sufficiently in advance to the respondents. Sd/= K.M. JOSEPH, JUDGE Sd/= M.L. JOSEPH FRANCIS, JUDGE kbk. // True Copy // PS to Judge 

The Principal vs The District Superintendent Of ... on 21 June, 2010

Kerala High Court

IN THE HIGH coum OF KARNATAKA AT BANGALQRE DATED mxs THE 16"' my OF SEPTEMBER;~~2 Q(}t9__'__E:"Z; BEFORE THE HON'BLE MRJUSTICE MOHAN $+aA;'r§Tg(NA'EbLu[;DAR;gé wan PETITION NOs.1524(;..;3. 15%eE52,*2oo8 BETWEEN: 1. Singhri Gowda, Aged 71 years « S/0.SinghI'i Gowda _ V 2. Bette Aged 58;'yea._rs _ ' S/o.Sing£r;riv..G:)wda' 'a " V Bofh are resE:;:1mg« -- ' Purév_:ia'K0ppaiu"E«. V. Mudag.ond.00rVVPo'st' _ V Dudda Hobiié §V13.ndya2Tf'aluk Mandya Dist, ' .. PETITIONERS ,_ Redcisf/;'«Sr.Counse1 for N.Bayya Reddy, Adv.,} 1. =State~ef_ Ksarnataka R£.=p[by its Secretary Dept, "of Irrigation ., AA ' EM.S.BuiIding < .,_Ambedkar Veedhi Bangalore-I 2. The Managing Director Cauvery Neeravari Nigarna Ltd. Vinoba Road, Opp: to Kalarnandir Mysore City 3. Chief Engineer Irrigation South Cauvery Neeravari Nigama Ltd, Palace Office Building V 2 Mysore 4. Superintendent Engineer " ' K.R.Sagar Modernisation V Medium Irrigation Scheme Ci_réie_ Cauvery Neeravari Nigarna Ltd." j " Mysore City " " ' V . ' 5. Executive Engineer Cauvery N€_E3I'11VEL1'i N§igarna5Ltd;.';'7_j~_ u h it KR.Sagaraf,gMo:dernisation and ' Medium;'IrrigatiGnI_P1anDiviesion ' Ne1amakana.hzi1IiPost.. .. 2' S " Maiavaiii'eA..fVf,\ '._%V'Vd..RESPONDENTS [By Sri iVe1.R.4c.'Ra§i;V"Aci§;... 4 5: 5 Sri N.E.'.7_\/iiswanath, Adv., for R1] "writ petitions are filed under Articies 226 and "of thgeCons'titution of India, praying to direct R3, 4 and 1'23 to .Inake_theV"payment to the first petitioner a sum of Rstgi'4,54,4'?;éi50/W [Rupees fourteen crores fifty four Iacks fortyseven thousand four hundred fifty only] being the hire charges for the machineries hired by them from the first , --. V 'pAetition'e--r and in terms of the agreements worked at a 2 fminirnurn eight hours per day from the date of delivery of S' _ machinery till 10.12.2007, etc. These writ petitions having been heard and reserved for orders on 101" September, 2009. and on this day the 16t."'----.g of September 2009, this Court pronounced the fo11owing:--"., ORDER Crew and Fuel charges etc,' " « " complete ' equipments 250 Cfm. Capacity etc. complete Five agreements were entered into betweeri~.. the petitioners and the Executive Engineer .d Minor Irrigation of the first respondent. of on 22.2.1999 and 5th agreement 1§V)2S:'9.':ii":'5v':5z these agreements, the petitioners rriachineriesdtvvand equipments, such as poclainewaridg basis for execution of the Work which was undertaken :C'ovpVies.":.oiu"tvheVagreements are produceddmat' tovflthe Writ petitions. The said agreenients the petitioners have agreed to suppg1y_vthet°1=eq'uis:ite Atmsachineries and the equipments on ratesdmentioned in Schedu1e--B enclosed to the ifordertcavation work. Petitioners have agreed to all specified in the notification dated 28.i'.1.999. Schedule--B to the agreement fixes the hire respect of the machines to be provided by the petitioners as undert- I~/5 -4- S1. Pariculars of Machineries and Unit Rate in No. equipments to be supplied on hire Figures basis I 1 2 3 4*- 1 POCLAINI3 ~« Hydraulic Excavator Per day of Rs.--l0','4(JO.G0 of Capacity 1 Cum. Inclusive of eight " :_. Crew and Fuel charges etc., working complete hours 2 TIPPERS 7 to 8.5 Ton inclusive of M-"do -- " 2. The petitioners haveAy.also.._agreed.that" would supply the rnachineries ma along with crew and fuel, repairs etc.*--on the"'baslsV 'offthelvrayteidtguoted for eight Working" _ Thellvlpeltitioners allege that the respondents have"tai1ed.._to._rnake payment of money due to thernin full"-.under]. agreements though the machineries ..y_utili,eed';- ---------- -«Almost on the same allegations, the ppetitioriers approached this Court by filing W*P§ilo.16'It?l'OV/12005, praying for a direction to respondents to rnake payment of the hire charges due to them as per » the "rates fixed in the hire agreements along with interest and i'/5 3 Compressor with drilling 17 (:lo} Z " u inclusive of Crew and Fuel charges . A . C' damages. This Court disposed of the H said W13.§\T0.16'?4G/2005 on 4.12.2007 by observing thustvt "3. There is no dispute between over the execution of the .agreerneints Janrji» the rates quoted by the petitioners including at providing of the mae.hinery.'«.AIf~ that respondents, in terms jot the it azgreemendtsvy "are obliged to make the p_ay'me_rit__pdepend_ent upon the number IZ1'e1.(3i1.'1iI1'€I'V was put to use. From the parties, there V is: Vconsiderabie overthe material oft" .theJciaim the petitioners. it that the petitioners " iI'1aV.e'T-a to--re*cover"theV: hire charges in fuli from.VVthe*- In that View of the "matter, wouid be met if the reds'po_nden'tsA'=_are"V directed to consider the '1'epreseiitation of the petitioners over the for hire charges and pass orders, ' in accordance with law, as _te':ip_ed:itiously as possible, in any event, Within a "ba.'period of two months from the date of receipt of a certified copy of this order. Writ petition is accordingly, disposed of." {Emphasis suppiied) ,6" 3. In pursuance of the aforementioned order, the respondents have passed the order as per AnneXure--E§:'Ciated 7.3.2008 rejecting the prayer of the petitioners-.ttt' impugned order it is held that the respondentsgflare chiiged _ make payment depending on the;.acVtua1..vWork1ngV in which the Inachineries were put to usetand consjet'1uentiy&'the'--..g petitioners have no right to reeoiier the 'hi_re= full from the respondents, .aitnexure%'E is: called in question in these writ petitteVne{..t§"" it it h 4. Sr: senior counsel appearing submits that the hire charges' are thehasis' of eight working hours per day and therefore eiren diiidtiied'petitioners' machines are used for oneordvtwo hoursdpver day, the petitioners should be paid for iethevtuperiod .oi"«.eight hours, treating eight hours as minimum "a day. It is further submitted by him that if the""rnar;hinei'ies are used in excess of eight hours. then the payinerit has to be made for eight hours at the first instance it it as a block period and thereafter the charges will V3 _ 7 _ have to be paid to the petitioners for each hour in excess of eight hours for fraction of the day on pro»--rata basis. according to the petitioners, it is mandatory on;'the'ppar1t '._dJ(."g the respondents to pay hire charges for of _ eight hours in a day. It is contended on behaIf.._of the.Vresponde'n.ts_that petitioners are entitled for hirevidiichpargpes on basis of the actual hours of the worgtton-e by. the_'rn'achineries. Learned counsel appearing for the Vrespon_Vde>nt's'~vreiies upon the tender conditions in support of-.thé=; s'aid"contention. "3F'v1ievio'rdefr_Vpat;fsed._i:b3t'_'th.is .c'<5'u'rt in WP.No.167-40/2005. cited .s1z1pra«.rria1':ese'it~that the respondents, in terms of the agreements are obliged to make payment depending on «..'Athe':e_jri*u:_raI:3erAof hoursthe machinery was put to use and it c'an1"10_t" that the petitioners have right to recover the full from the respondents. The order in \AIP.1$:o.ie74o/2005 has attained finality. Practicaliy, the A C_" question raised in these writ petitions is already answered by this Court in Wi'.No.16740/Z005. Hence, it is not open for V' the petitioners to raise the very question in these writ petitions, once again. 5. Even on reconsideration of the matterj""this does not find any ground to accept the contevntioiisof the petitioners, particularly in the light of relevant tender conditions to which "the p,e"titioners*. a're"a signatories, read thus:- "Sealed quotations, duplicate are invited from the Firms / Persons 'deab1i1"ig,in*~V.t}v3e above for the Supply./_,(V);fth(i:_f0H0vJiI1'g don.,_'hire:E3asis: """ frippers I ' ' 3]' Compressors with drilling equipment. above-_ are? required to be deployed for lvexcavatio-nflfiv works of Flow Canal of it H;'D.lDevego\vdad Barrage. it should be quoted per day of eight inclusive of all, i.e., crew, Fuel, repairs ~. etc. For fraction of day prorata rates of the above rates will be considered. F~«'> The minimum number of machinery they are able to deploy should be specified. The hire charges are for FOR destinatioTn'--.T work site and no transportation charges to uior:{j--._ site are admissible." 6. From the aforementioned, tender ."c0ri'difi0riS§. _' it is it clear that the rates should be quoted 'dajwof :h~oui*s inclusive of all i.e., crew, fue1,"'repairs- etc.._ i'Wh'ici1--..means,'~ ' eight hours of working is construed_ as one day, The tender conditions further ma1§e'-- clear ihvat'*for:friaction of day, pro- rata rates of thearates vS§L')f3C.ifi€d"1'1'"L.> agreement will be paid. .'w'hicVhj;'me:éi;:'1s thefiaejtitioners are entitled to proportionate'hireieharges. on actual hours of user of the l'l'1aCh'i1'1_{V3'S.» .'_{'hus,=,i"t is not incumbent upon the V. «_ res_p'o.nd_ents to p'-ay..hirr: charges for a day (i.e. minimum of 8 hours; .1;o«.tI1et'petitioners. If the machines are used less than "eighth'hvoursL:..oi"T:=j§eriod, the petitioners are entitled to pro--rata rates based' on actual user of machines for fraction of the it V' V day.__[i.ev.V;" for fraction of 8 hours}. V" V7 10 , In View of the above, this Court does not find any ground to interfere with the impugned order, inasmuch as the same is just and proper under the circumstances of the case. The Executive Engineer''e-ix7ehi1'e " passing the impugned order has correctly it petitioners are not entitled to recover hire: charges» in fuiE._1fo--r. the day [i.e. for minimum ofdsfihiours} from re_:s"pondentsVd' though the machineriefs. are suppii.ed' the -petititoners are used for less than period -- day. Hence, _peti'tions:Vfifaiisfand V-aeevordingly same are dismisseclf " Sd/- JUDGE

Author: Mohan Shantanagoudar

Shri Singhri Gowda vs State Of Karnataka on 16 September, 2009

Karnataka High Court

Court No. - 35 Case :- WRIT - C No. - 32165 of 2010 Petitioner :- Vijay And Others Respondent :- National Highway Authority Of India And Others Petitioner Counsel :- R.C. Singh Respondent Counsel :- C. S. C.,Mohd. Ali,V.B. Mishra Hon'ble Vineet Saran J. Hon'ble Ran Vijai Singh,J. Sri R.C.Singh learned counsel for the petitioner states that rejoinder affidavit is under preparation and will be served to the respondents within three days. List in the next cause. Order Date :- 4.8.2010 PKB

Vijay And Others vs National Highway Authority Of ... on 4 August, 2010

Allahabad High Court

W . P. No. 2382'? 22005 IN THE HIGH COXTRT ()1? KARNATAKA AT 3A.NGA.LORJL} DATE!) mas THE 15% DAY or sspwnmssa 2093-1 BEFORE THE HON*¥3LE ma. aUsTIcE_H.$,,mrdiEsi:§ % BETWEEN: 1 $0HAN _ AGED ABQUT 38 YEARS . S/O LATE B.RAMMOI_~i$&N A*?H:;<A' R/AT .&SSIS'E'AN'I', :m::Rx,~:AL%_At;;r:»,1T'~..j * _ MESCOM, MANGALORE -- _ 2 ';.--{jP_EffFF1'IONER {BY Ms. FARAH F'§T}RS1' <_'E 1»: iériggsézi AiL)VS.§ Am): 1 THEE}SUPERINTE1?€'E3E'NT"F3N'{3I.N'Ei§'ZF?{ELE} C} 2%; M CIFéC"s;fi:,AV M.ESCO"M__ _ _* MANGALORE 'Af£'TO'\zgs,;;2-5; mu Disc:¥éL::~:ARY,VAL:j:*:~xo~:§Iw REP. B":4__;*I's_su9E;2:;~:*:fE.ND£:N*I* ENGENEER 2 THE; Laftit-:::aF"'§:1s_{?<is:r~IEE3_;;~2 (31,233 ..f:¢:A:sIng:A1,oRE z * * , E\:¥I3S'f;'OM';«.MOROL1, KULSHEKAR MA;xz,GAL{>R>1:_ANa DECIPLINARY AUT§ic::Ie:'rY RE;:?.[£%_Y"<:HzvE:f' ENCEINEER RESPONi)F.NTS {BY ss~;§:1<.:<12:;i.A;;'i:fs; iiuzvim FOR SR: ARVINE3 KUMAR, A{}VS.} THFSFAVRIT PE3'1'E'E'§C*N IS FILED UNDER ARWGLES 226) 85 (3? WE CONS'I'I'i'U'f'EON 0:3' INEDIA §'F.'AYIE\I{"} T9 QUASH THE ORDER DT. 19.52005 PASSED BY R2 VIBE ANNEX.A_ AND " [TO 'Qmsa THEE mama DT. 23.9.2004 RASSED BY 22: VIBE =.ANE"-{EX.B. THIS WRIT PETITEON COMING ON FOR PRELEMINARY .. .'H:«:AR1;srG IN 'B' 3120:}? 'I'HiS BAY, 'THE <.:<:>uR'1" MADE mg FOLLOW} NG: - wan' PETITION Ho. 233271900' .,...;;:5 is-ii}:-:.sz ' ;['c:red:'_t'te¢2Z..oVthe_ amount of the Board twice in a ._ not proper, since the amount Aool£e{;te:i.i'ee3'lier day and the amount coilected " V1' to Ibeecreditted oniy once in ca day and the amount '(collected eariier days and next day till it is sent to bank are not tamed, W.P.No.i2,3827[Z2005 has committed Temporary Misappropriation of Rs.237'.P'8/- by not remitting entire amount coileetéon and has written alt the transactions records according "L" '% oonveniencze, exoept, allowing-' .cg:r§3h ¢ Smt. Geetha Pat, to write oboe}: f also has uttered the Charge No.2: It is further 'iiieieged tiiat_"ti:e eo has. temporarily eiisoppropreofteei orfiouitt ojRs. 772491- being'%'t:};e 'eoilected from the oom§;mjner.3. receipt but wreingaf '.c ?"¢r=;é'?,:,e:$ 'meant in his persona? Showing the charges; oeeeeitfltersi creditting the the Bank, till the cheqzte._ thereby committed alleged that the no has tiff "it is to be creditted to Bank together should Charge No.4.» It is alleged that the DC) has accepted the out-station cheques for temporary W »A Arme.acure.3. This undoubtedly is _ The DC) has not denied this Aatliegarfipifi; Furtherfivm the evédence, it is clear _ AA work and also incharge Sr.AssI'stant cash officer. It is aisca estabfiished that cut- station cheques have been accepted but the W.P.No.238i2?gf2'005 '. . .. .., fits intheevidence thatflfl has coiiected back bii! ameunt thraygh from the consurner, t9 the tune of Rs. ??'.24_f}f--~f A' on different oocasiarzs and has Given his cI'Leques., which deafi_y_goes V3033'-'.;3w 4' has miS*€iPDro19?'iated Board his own cheque' He has»taI.$o viéfiqtted V rules in the wise of "c0nsufizetfS.t H significant to note z-'tlftczt the accepteai that he tc;:_,§;'??1 fhzm the c:on.sume2:_. and fiérsonai chegges. generczi practiceitta in a day. Hoteggazer ' V. V circumstances 'two times in a day couidttbé instancecase, it is cigar tfiét remitted the arrzatant than previous cash amount as is that the B0 himself was Iooking after the comrrwssion has not been celiected It is 0:539 czear that the DO has not denied responsibility 'W W,P'.No.23&i;Z?',j 2005 to -Kooliect ihe collection charges fiom the CORSHWIQT. x , . . . . . . . . . . . . The very conIentéof.%: b1'5 the E0 makes it absolutely clear that dared to issue his persona; zlersonal accounts for the ~ 'Tvdéaliririgts which itself is inbemmirzggqf at servant. Therefore, _V'czfiqié',:: after consideration. 0f the" evidence in the light £:¥f it is Cmstai clear iihat 'fiéaairzst the DO may c:§a_a£zz§"esé'abz';si:ed; 3 4. ageeing with the findings réf<:'§rded"'*1";3f' oflicer imposed the pmfisfigihcnt (>i"*§v§.1;i:1Vh<)1§'1iI;g of four ammal increments _efi'ect: ané making the petitioner liable 'I31; Cfiéifges cf Rs.2,8(')2/--. It was dimcted -- that 31¢ ameunt had to be deducted fimn his V' 1;3,d11"th1y and the period of suspension was in be as leave to his credit. He was 3130 pmhibiteé " dealing with cash transactions of the company for a period <31' tihreez years. Appe1}ate Au.tI1<31'ity W.P.NoX,}Z3$'2.?,{T2G05 though ageed with the fmdirzgs rscsrdad by ffhgi Discipiiualy Aumbfity has 111e;>dified the punisfngfiléfit-.., the extent of reducing the withholding of M increments to twoé in $1 ot11sr:"fés'pe§,ft'5, :h %¢~ ':;rd<:.:*r passed by the Discipiixlary AL1thé§'i§:§}'-_§I}as ¢g}11:'L~:néd.."-~. " In my opinion, as {ha rficQffier§'_: Disciplinary Auth{)I'it§;':' rpm 'f;1'0per consideration of both evidence on finposed by 15116 Appeflsifi be said to be of the misconduct proved, 3:10 ivarrant iI"ii'€I'fE:'.}'€flC€ with the imp.ugne£:i .g§rc1ér iii éxercise of the exmaordinagry ::;f_uus'TC¢§i:rt under Articles 1226 85 227 of India. 'i?'ei:i:i::it)i1"'éisII1is§;eci. 1" judge

Author: H.G.Ramesh

Sohan vs The Superintendent Engineer ... on 15 September, 2008

Karnataka High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM Crl.Rev.Pet.No. 1657 of 2008() 1. E.ABDU, S/O.HASSANKOYA, ... Petitioner Vs 1. RAJI MATHEW, S/O.MATHEW, HOUSE NO.41/343 ... Respondent 2. STATE OF KERALA, REPRESENTED BY For Petitioner :SRI.P.V.KUNHIKRISHNAN For Respondent : No Appearance The Hon'ble MR. Justice V.RAMKUMAR Dated :28/05/2008 O R D E R V. RAMKUMAR, J. - - - - - - - - - - - - - - - - - CRL.R.P. No.1657 of 2008 - - - - - - - - - - - - - - - - Dated this the 28th day of May 2008 O R D E R In this Revision petition filed under Section 397 read with Section 401 Cr.P.C. the petitioner who was the accused in S.T.No.1339/2004 on the file of the JFCM IV, Kozhikode challenges the conviction entered and the sentence passed against him for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act'). 2. I heard the learned counsel for the Revision Petitioner and the learned Public Prosecutor and also the learned counsel for the complainant. 3. The learned counsel appearing for the Revision Petitioner re-iterated the contentions in support of the Revision. The courts below have concurrently held that the cheque in question was drawn by the petitioner in favour of the complainant on the drawee bank, that the cheque was validly  CRRP 1657 OF 2008 -:2:- presented to the bank, that it was dishonoured for reasons which fall under Section 138 of the Act, that the complainant made a demand for payment by a notice in time in accordance with clause (b) of the proviso to Section 138 of the Act and that the Revision Petitioner/accused failed to make the payment within 15 days of receipt of the statutory notice. Both the courts have considered and rejected the defence set up by the revision petitioner while entering the above finding. The said finding has been recorded on an appreciation of the oral and documentary evidence. I do not find any error, illegality or impropriety in the finding so recorded concurrently by the courts below. The conviction was thus rightly entered against the petitioner. 4. What now survives for consideration is the question as to whether what should be the proper sentence to be imposed on the revision petitioner. Having regard to the facts and circumstances of the case, I am inclined to modify the sentence imposed on the revision petitioner. In the light of the recent decision of the Supreme Court in Ettappadan Ahammedkutty v. E.P. Abdullakoya (2008(1) KLT 851) rendered on 3-8-2007 in Crl. Appeal 1013 of 2007, default sentence  CRRP 1657 OF 2008 -:3:- cannot be imposed for the enforcement of an order for compensation under Section 357 (3) Cr.P.C. Accordingly, for the conviction under Section 138 of the Act the revision petitioner is sentenced to pay a fine of Rs.5,00,000/-(Rupees five lakhs only). The said fine shall be paid as compensation under Section 357 (1) Cr.P.C. The revision petitioner is permitted either to deposit the said fine amount before the Court below or directly pay the compensation to the complainant within eight months from today and produce a memo to that effect before the trial Court in case of direct payment. If he fails to deposit or pay the said amount within the aforementioned period, he shall suffer simple imprisonment for three months by way of default sentence. In the result, this Revision is disposed of confirming the conviction entered but modifying the sentence imposed on the revision petitioner. V. RAMKUMAR, JUDGE css/  CRRP 1657 OF 2008 -:4:-

E.Abdu vs Raji Mathew on 28 May, 2008

Kerala High Court

JUDGMENT Rakesh Tiwari, J. 1. Heard counsel for the parties and perused the record. 2. The writ petition has been filed challenging the orders dated 27.2.2001 and 29.5.2001 passed by the Civil Judge (Senior Judge) and the Additional District Judge, Meerut respectively, refusing to restore the Original Suit No, 888 of 1994, alleged to have been passed on a fraudulent compromise decree. 3. Since practising fraud and committing forgery in Court records is alleged in passing the decree, It is necessary to give some facts in detail. 4. According to the case of the petitioner, she inherited certain properties from her father. Out of these properties the four-disputed house are situate at Meerut. The petitioner lives at Bareilly and is a Pardanashin Muslim woman. In order to manage her properties, which she inherited from her father at Meerut, she appointed Sri Zameer Ahmad, her husband, as general attorney. She and her five daughters executed general powers of attorney on 16.3.1991 in favour of Sri Zameer Ahmad but this deed was cancelled by registered deed dated 10.1.1994. 5. Plaintiff-respondent No. 1 in connivance with Nadir Khan got a Suit No. 888 of 1994 filed in the Court of Civil Judge (Senior Division), Meerut by Nadir Khan alleging that the houses in dispute situate at Meerut have been gifted to him by the petitioner Smt. Sultana Sayeeda on 30.1.1994 by oral gift and she delivered possession of the property to him on the same day. The gift was alleged to have been accepted by him on the same date but when application for mutation in municipal records was filed she not only objected to get the name of Nadir Khan mutated but also denied the gift itself, hence suit for declaration and possession was filed. In the plaint the address of the petitioner Smt. Sultana Sayeeda is given that of 33 Purva Ahirana, Meerut though she lives at Bareilly. The suit was registered on 15.9.1994. The summons was ordered to be issued on the same day fixing 3.11.1994 for filing written statement and 10.11.1994 for framing issues. 6. The summons are said to be served on defendants on 25.9.1994 and defendants are said to have appeared through their General Attorney Zameer Ahmad on 22.9.1994 and filed written statement admitting oral gift and stating no objection for decreeing the suit. This compromise is said to have been signed by plaintiff Nadir Khan and Sri Zameer Ahmad as attorney for defendant Nos. 2 to 6 and Sultana Sayeeda defendant No. 7 personally. This compromise deed was placed before the Civil Judge (Senior Division) for verification on 4.10.1994. The verification runs as under :    ^^vkt fnukad 4-10-1994 dks le>kSrk i= oknh ukfnj [kka] cf'kuk[r Jh ujsUnz izlkn 'kekZ] ,MoksdsV o izfroknhx.k dh rjQ ls eq[rkjs vke Jh tehj vgen cf'kuk[r ,l-ih flag iaokj ,MoksdsV ds vfHkKku ls U;k;ky; ds le{k lqukdj o le>kdj lR;kfir fd;k A     g- lqyrkuk lbZnk g- vLi"V     eqgj flfoy tt] esjB A 4-10-1994     izfroknhx.k dh vksj ls eq[rkjsvke g- mnwZ esa Identified the signature of defendant Zameer Ahmad g- vLi"V fnukad 27-9-1994 Seal S. P. Singh Panwar Advocate. g- mnwZ esa Identified Zameer Ahmad g- vLi"V fnukad 4-10-1994 oknh ukfnj [kka Identified the signature of Plaintiff Nadir Khan g- vLi"V 27-9-1994 Seal Narendra Pal Sharma Vakil ukfnj [kka Identified the signature of Plaintiff Nadir Khan g- vLi"V fnukad 4-10-1994 7. It is alleged by the petitioners that prior to 23.5.1995 they had no knowledge about the order dated 4,10.1994 which was passed on the basis of forged and concocted written statements as well as forged compromise filed by respondent No. 3. It is further specifically asserted that the petitioners neither engaged any counsel on their behalf nor they filed their written statements as disclosed in the order dated 4.10.1994 and the said order dated 4.10.1994 came to their knowledge on 23.5.1995 and then they made proper enquiry about the case and came to know that a forged written statement had been filed on 22.9.1994 by respondent No. 3 which contains the alleged signature of petitioner No. 1 in Urdu. 8. It is further submitted by the petitioners that from the perusal of record it further came to their knowledge that one forged compromise application had also been filed by respondent No. 3 on 27.9.1994 on the basis of which Suit No. 888 of 1994 had been decreed vide order dated 4.10.1994 in terms of the alleged compromise dated 27.9.1994 by the Civil Judge (Senior Division), Meerut and thereafter the petitioners approached their counsel on 19,4.1995 and filed restoration application supported by an affidavit of Km. Mansoor Zia (now deceased daughter of petitioner No. 1). In the said affidavit it was specifically stated that there is no oral hibba in favour of respondent No. 3 by the petitioners and the averments in this regard are wholly false and wrong and by playing fraud he succeeded to obtain decree dated 4.10.1994. It is also submitted that while issuing summons in O.S. No. 888 of 1994 the learned Civil Judge (Senior Division) fixed 3.11.1994 for W.S. and 10.11.1994 for framing of issues but it is strange that the case was decreed on 4.10.1994. 9. The original record was summoned by the Court. A perusal of the original record shows that it bears signatures of Smt. Sayeeda Sultana which have been denied by her. Her case is that since other person has put her signatures, she never signed or verified the compromise deed and Zameer Ahmad had no authority to sign as her power of attorney had been cancelled. This statement is fully supported by the endorsement of the Civil Judge that she did not sign or verify the compromise. There is also signatures of Zamir Ahmad second time which have been identified on 4.10.1994. The two signatures of Zameer Ahmad have been identified by the same person. 10. The suit was decreed on the basis of said compromise on 4.10.1994. The defendant-petitioner appeared in the Court on the date fixed in the summons, i.e., 4.10.1994 and came to know about the compromise decree passed on 4.10.1994. The petitioner-defendant filed restoration application for recalling of above ex parte compromise decree on 21.10.1994, This application was registered as Misc. Case No. 148 of 1994. The record of this miscellaneous case was found missing as is evident from the order of Court dated 6.2.1995. The Civil Judge initiated proceedings for enquiry vide order dated 7.2.1995 about loss of the record. The enquiry was concluded and it was reported on 22.2.1999 that record has been lost and it is not possible to pin point the clerk from whose custody the file was lost. However, it appears that later on the file was surprisingly found lying in court premises. The petitioner-defendant then filed an application stating that all but first and last pages of the restoration application had been changed and she sought permission to file another affidavit, which was allowed by the Court. The petitioner thereafter filed a fresh affidavit. During the pendency of the suit the petitioner also filed an application on 23.3.1998 that the plaintiff-opposite party Nadir Khan forcibly entered her house and forcibly tried to dispossess her. The Civil Judge after hearing both the parties passed an injunction order dated 31.3.1998 restraining the plaintiff-opposite party Nadir Khan from interfering in the possession of the petitioner. It is further alleged that on 31.12.1999 Nadir Khan again tried to interfere in her possession. However, the plaintiff gave an undertaking that he will not dispossess the petitioners. The restoration application of the petitioners was dismissed by the Civil Judge by Judgment dated 27.2.2001. The appeal against the Judgment was also dismissed on 29.5.2001. 11. From the admitted facts it is clear that plaintiff filed the suit claiming that petitioner-defendant had gifted the four houses by oral gift, which she denies. Except affidavit of the respondent Nadir Khan there is no evidence of any gift or its acceptance. It is also admitted that the petitioner-defendant objected even mutation over the property in favour of plaintiff-respondent. She is a Pardanashin lady and onus of proving valid gift lies very heavily on the plain tiff-opposite party. There is not even an iota of evidence to prove consent to the gift, which is a necessary ingredient of hibba (oral gift) in Muslim Law. 12. So far as possession over the property in question is concerned which is said to be disputed, it is stated in plaint that the possession was taken on the same day, i.e., 30.1.1994. The address given is of Meerut of the defendant-petitioner. It is further proved from the orders dated 31.3.1998 and 31.12.1999 passed by the Civil Judge that he was not in possession of the property and he was restrained from interfering in the possession of the defendant-petitioner, which is re-affirmed from the undertaking given by the plaintiff-opposite party that he will not disturb the possession of the petitioner-defendant. This further shows that the theory of acceptance of gift by taking possession is wrong. It is also quite unnatural that a lady will gift her only residential house and come on street. 13. The most suspicious circumstance is that a compromise is said to have been filed in Court even before service of summons on opposite party. Had the opposite party entered into compromise on 27.9.1994, she should not have appeared in Court on 2.10.1994 in pursuance of the summons for filing written statement. 14. The plaintiff-opposite party has been consistently saying that both Zameer Ahmad and Smt. Sultana Sayeeda had verified the compromise on 4.10.1994. This is contrary to the certificate given by the Civil Judge while verifying the compromise. The Civil Judge has not mentioned the name of Smt. Sultana Sayeeda in his certificate of verification of the compromise. Thus, it is wrong to say that Smt. Sultana Sayeeda, defendant No. 7, had verified the compromise. So far as verification on behalf of defendant Nos. 2 to 6 is concerned they are said to be represented by Zameer Ahmad by virtue of power of attorney given to him on 6.3.1991 but this power of attorney had been cancelled on 10.1.1994. Thus, Zameer Ahmad had no right to enter into any lawful compromise on 27.9.1994 and 4.10.1994. This also is a circumstance casting doubt on theory of compromise. Signing the instrument on different dates for verifications are another circumstance for which there is no explanation and justification. The signature of Zameer Ahmad and plaintiff Nadir Khan are dated 27.9.1994 and were identified on 4.10.1994 before Court. The signatures of Zameer Ahmad are in Urdu on the front page and the back of the compromise. The defendant's case is that Zamir Ahmad used to sign in English. I find that Zameer Ahmad has put his signature in English on two vakalatnamas as well as the registered power of attorney before the Registrar. At one place Zameer Ahmad has signed in Urdu. On comparison of signatures on compromise deed they appear to be different. 15. A bare perusal of the judgment of the trial court shows that it has not taken into consideration the verification of compromise by the Court concerned wherein signatures of Mst. Sayeeda Sultana has not been verified at all and so far as her husband Zameer Ahmad, alleged holder of power of attorney on behalf of other defendants is concerned, they are without authority and immaterial power of attorney had been cancelled by Mst. Sayeeda Sultana by subsequent registered instrument dated 10.1.1994, i.e., much prior to the verification made by the Court on 4.10.1994. Thus, the conclusion arrived at by the two courts below in impugned Judgments dated 27,2.2001 and 29.5.2001 are vitiated being perverse and based on misreading that power of attorney was subsisting on the date of verification evidence. Zameer Ahmad was not at all competent to enter into any compromise on behalf of any defendant. The Courts committed a manifest error apparent on the face of record in holding that there was a lawful compromise. The following finding is against record.    ^^bl rF; dks izkFkZuh lqYrkuk lbZnk Hkh Lohkdj djrh gS fd mlus esjB esa fLFkr leLr lEifr dh ns[kHkky ,d eq[rkjuke vius ifr tehj vgen ds uke rgjhj o rdehy fd;k Fkk mlesa fgcS o jsgu ds vf/kdkj Hkh fn;s Fks vkSj og vc Hkh cjdjkj gS A** 16. It appears that the Courts have not proceeded the matter with Judicious approach and has not even cared to look into the relevant record which was the bone of contention and has in a cursory manner decided the matter. The merit of case has no relevancy at this stage. In so far as findings of appellate court is concerned that too suffers from error of law and vice of misreading of the relevant record. The lower appellate court has wrongly shifted the onus on a pardanashin lady to prove her signatures through handwriting expert. The lower appellate court has held as under :    ^^vihykFkhZ ds bl dFku esa Hkh dksbZ cy ugha gS fd okn la- 888@94 esa nkf[ky odkyrukek] izfrokn i= o lfU/ki= ij tehj vgen ds gLrk{kj ugha gksa A bl lEcU/k esa vihykFkhZ dh vksj ls dksbZ gLrys[k fo'ks"kK dh fjiksVZ Hkh izLrqr ugha dh xbZ gSaa A bl idkj vihykFkhZ Jherh lqYrkuk lbZnk dh vksj ls vius gLrk{kj ds lEcU/k esa Hkh gLrys[k fo'ks"kK dh fjiksVZ izLrqr ugha dh xbZ gS tcfd fofo/k okn la- 148@94 ds dFku dks lkfcr fd;s tkus gsrq izkFkhZ@vihykFkhZ o vU; dk gh nkf;Ro jgk gS fd os odkyrukek] izfrokn i=] lfU/ki= rFkk fofo/k okn la- 148@94 esa nkf[ky fd;k x;k 'kiFk i= ds i`"B 2 rFkk 4 ij vius gLrk{kj ds ckjs esa gLrys[k fo'ks"kK ls tkap djus ds mijkUr ijh{k.k fjiksVZ izLrqr djrs ftlds vHkko esa muds }kjk ;g lkfcr ugha fd;k tk ldk gS fd mijksDr nLrkostksa ij Jherh lbZnk vFkok tehj vgen ds gLrk{kj ugha fd;s x;s gks A** 17. Though the lower appellate court has perused the compromise and its verification dated 4.10.1994 but has misread while holding :    ^^i=koyh ds voyksdu ls fofnr gS fd U;k;ky; flfoy tt] esjB }kjk fnukad 4-10-94 dks lfU/k i= 12 d 2 ds vk/kkj ij fMØh ikfjr fd;k x;k gS vkSj fMØh dk va'k lfU/k i= 12 dk 1 dks cuk;k x;k gS ,slh n'kk esa ;g ugha dgk tk ldrk gS fd vihykFkhZ ds fo:) U;k;ky; }kjk dksbZ ,d i{kh; fMØh ikfjr dh xbZ gks A lfU/ki= 12 d 1 voyksuu ls fofnr gS fd lqYrkuk lbZnk rFkk vU; izfroknhx.k dh vksj ls eUlwj ft;k ds firk tehj vgen us gLrk{kj djrs gq;s lfU/ki= izLrqr fd;k ftl ij mlds vf/koDrk }kjk lR;kfir fd;k x;k gS A U;k;ky; ds le{k lfU/ki= 12 d 1 dks rlnhd fd;k x;k Fkk vkSj ,slh fLFkfr esa tc rd fd mlds foijhr dksbZ Bksl lk{; izLrqr ugha fd;k tkrk rc rd ;g ekU; gS fd U;k;ky; ds le{k vihykFkhZ o vU; izfroknhx.k us vius gLrk{kj ls lfU/ki= izLrqr fd;k Fkk vkSj U;k;ky; }kjk i{kdkjksa dh mifLFkfr eas lfU/ki= 12 d 1 dks rlnhd djrs gq;s lfU/k i= ds vk/kkj ij fMØh ikfjr fd;k x;k Fkk A**  18. Signatures of Smt. Sultana Sayeeda have not been verified by the Court. The conclusion drawn by the two courts below are based on irrelevant considerations. The petitioner has no other property left except these houses. There was no lawful compromise for passing decree. The record of Court was deliberately misplaced and it appears that signatures of Smt. Sayeeda Sultana were appended to show that she signed the compromise. The sequence of events goes to show that fraud was practised which vitiates whole proceedings and decree. It is a fit case for setting aside such decree. In the circumstances of this case and to prevent injustice it would be but proper to set aside decree and allow her to contest the suit on merits. Her application for restoration ought to have been allowed. If there was any oral gift as alleged by the plaintiff he should not felt shy in contesting the case on merits. 19. Sri V. K. Goel has drawn my attention to the Full Bench decision in Ghulam Ahmad Sofi v. Mohd. Siddiqui and Ors. In which it has been held : "Thus, if all the formalities as prescribed by the Mohammadan law relating to making of gifts are satisfied i.e., there is a declaration by the donor of his intention to make a gift, there is acceptance of the gifts by the donee, and delivery of possession of the property is complete, the gift is valid notwithstanding the fact that it is made orally without any instrument. But if there is executed an instrument and its execution is contemporaneous with the making of the gift then in that case the instrument must be registered as provided under Section 17 of the Registration Act. If, however, the making of the gift is an antecedent act and a deed is executed afterwards as evidencing the said transaction that does not require registration as it is an instrument made after the gift is made and does not therefore create, make or complete the gift thereby transferring the ownership of the property from the executant to the person in whose favour it is executed." 20. In the instant case the respondent has denied execution of the gift deed ab initio and thus the consent is lacking. The cases cited by counsel for respondent No. 3 are irrelevant at this stage as I am not deciding the case on merits. 21. For the reasons stated above, Writ Petition Nos. -37034 and 43841 both of 2001 are allowed. I direct that impugned compromise decree be set aside and suit be restored to its original number and decided on merits according to law. Any observation made in this judgment or in the judgments of courts below on merits of case shall be ignored in deciding the case. No order as to costs.

Author: R Tiwari

Smt. Sultana Sayeeda vs Additional D.J. And Ors. on 18 December, 2003

Allahabad High Court

JUDGMENT Nesargi, J. 1. The plaintiffs in O.S. No. 182/1964 on the file of the II Additional Civil Judge, Bangalore City have preferred (his appeal against the decree passed by the said Court on 17-12-1974 dismissing the said suit. 2. The plaintiffs filed the suit for setting aside the alienations dated 9-12-1957 and 27-12-1958 in regard to item Nos. 1(b), II (a) and (b) of Schedule-A respectively and also the derivative alienations in favour of the other defendants. They also prayed for possession of the suit properties. Nextly they requested for a decree in regard to mesne profits from 9-12-1957 and 27-12-1958 to the date of their getting possession. 3. The facts in this suit are almost undisputed. G. Narayan was the son of one B. Giriyappa. G. Narayan died on 20-9-1956. Smt. Gowramma was his 'widow. G. Narayan and Gowramma's issues are plaintiffs 1 to 4, defendant-14 and one Sakku. Sakku died in the year 1960. When G. Narayan died in the year 1956, all these issues were minors. Gowramma died on 15-1-1959. Even at that time also the issues of G. Narayan and Gowramma were minors. 4. On 9-12-1957 Gowramma sold item No. 1 (b) of 'A' Schedule property for a sum of Rs. 23,000/- under Ex. D 32 to defendants 1 and 2 not only on her behalf but also on behalf of the minors as their guardian. On 27-42-1958 she once again sold item Nos. II(a) and (b) of 'A' Schedule properties to defendants 5 and 6 for a sum of Rs. 12,000/-, in the very capacity as described in Ex. D. 32. This sale deed is Ex.D.1. Defendants 5 and 6 in turn sold the same in favour of defendants 7 to 13. It has been already stated that Gowramma had expired on 15-1-1959 and that even at that time her issues were minors. 5. Misc. No. 43/1959 was filed under Section 7 of the Guardian and Wards Act, 1890 (hereinafter referred to as 'G & W Act') in the Court of the District Judge, Bangalore by one Arasappa, paternal uncle of the plaintiffs, defendant-14 and deceased Sakku, requesting the Court to appoint him as the guardian of the persons of the minors and their properties. On the filing of this Miscellaneous Application, an interim Receiver was appointed ex parte. 6. Plaintiff-1 filed an application I.A. No. 10 under Order 1 Rule 10 C.P.C. requesting that he should be impleaded as a party in the said proceeding as he had attained majority having been born on 14-2-1942. The said application was allowed. Ultimately he was appointed guardian of the remaining minors and the Receiver appointed earlier was discharged. 7. The plaintiffs have challenged the alienations mainly on the ground that they were not supported by legal necessity or benefit to the estate. 8. The defendants have raised various contentions. The question in regard to the date of birth of plaintiff-1 had also cropped up in view of the contention of the defendants that the suit is barred by the period of limitation. The defendants have nextly contended that both the alienations made by the mother are supported by legal necessity as she had no other go but to sell the properties for payment of the arrears of income tax and for construction of a house and for payment of the antecedent debts. 9. The trial Court has held that plaintiff-1 was born on 14-2-1942 and that the suit instituted by him on 6-6-1964 was beyond the period of 3 years after his attaining majority. It was nextly held that so far as item No. 1(b) property in Schedule-A is concerned, the sale is supported by legal necessity. In regard to item Nos. II(a) and (b) properties of 'A' Schedule, it has concluded that the sale in favour of defendants 5 and 6 by Gowramma is not supported by legal necessity. It has ultimately dismissed the suit mainly on the ground of limitation and also in regard to item No. 1 (b) on the fact that the sale was supported by legal necessity. 10. Before proceeding to deal with the arguments urged on both sides, we consider it appropriate to narrate certain facts which are also undisputed. 11. Item No. 1(b) of 'A' Schedule was acquired by G. Narayan by why of gift from his father Giriyappa. Item Nos. II(a) and (b) of 'A' schedule were ancestral properties in the hands of G. Narayan. G. Narayan, his wife Gowramma, plaintiff 1 to 4, defendant-14 and Sakku constituted a joint family. It is when things stood thus that G. Narayan expired on 20-9-1956 i.e., after the coming into force of the Hindu Succession Act, 1956, on 17-6-1956. Therefore, it follows that on the death of G. Narayan, Gowramma, the plaintiffs 1 to 4, defendant-14 and Sakku (who died in the year 1960) did have their shares in all the suit properties, item 1(b) of 'A' Schedule which G. Narayan got from his father Giriyappa by way of gift, became the joint family property in the hands of Gowramma, plaintiff, defendant-14 and Sakku, irrespective of the fact that the issue of G. Narayan and Gowramma were minors at that time. In our opinion, this situation has to be borne in mind while dealing with the legal aspects that have been canvassed one either side. One more aspect to be borne in mind is that Gowramma has executed the sale deeds Ex.D.32 and D. 1 not only on her behalf but also as natural Guardian of her minor children. It goes without saying that each one of the minor children of G. Narayan and Gowramma had interest in the joint family properties consisting of the suit schedule properties. 12. One of the contentions raised by Sri Nanjundaswamy is that Gowramma had not taken permission as required by Section 8 of the Hindu Minority and Guardianship Act, 1956 (hereinafter referred to as 'M & G Act') and therefore, the sales evidenced by Ex. D.32 and D.1 are not binding on the plaintiffs, defendant-14 and Sakku who died in the year 1960. The other contention put-forward in this very connection is that Gowramma, as natural guardian of her minor children, had no power to alienate the minors' interest in the joint family properties for any reason and therefore, Ex. D.1 and D. 32 are void transactions and as such not binding on the plaintiffs. The further argument advanced is that as the transactions are void transactions, Article (sic)5 and not Article 60 of the Limitation Act applies and as such, the trial Court has fallen into an error in holding that the suit of the plaintiffs is barred by the period of limitation. 13. Another argument leading to the very same consequence is addressed by Sri S. Nanjundaswamy, Learned Counsel for the appellants on the basis of Section 11 of the M & G Act. He urged that so fur as the undivided interest of the minors in the joint family properties is concerned, Gowramma, the mother, though a natural guardian of the person and properties of the minors would be a de facto guardian particularly in regard to the undivided interest of the minors in the joint family properties and as such she could not have alienated the suit properties under Exhibit-D1 and D 32. He pointed out that the M and G Act has come into force on 25-8-1956 and therefore, Section 11 had taken away the right of Gowramma, if at all she had any, under the personal Law viz., Customary Hindu Law. 14. Sri V. Krishna Murthi, Learned Senior Advocate appearing on behalf of some of the contesting respondents urged that Gowramma, as natural guardian of the minors, had the competence to alienate the property of the minors including their undivided interest in the joint family property for legal necessity or for the benefit of the estate particularly when the sale is in regard to the whole of the joint family property and not restricted to only the undivided interest of the minors in the joint family properly. He nextly argued that the customary Hindu Law did recognise that a minor can in law be the karta of a joint family particularly when he is represented by a capable guardian like the natural mother in the present case viz., Gowramma. Continuing this argument he urged that Gowramma could very well have acted as guardian of the karta viz., plaintiff-1 and sold the properties in that capacity. Sri Nanjundaswamy countered this argument by stating that a woman cannot, in law, be a karta of a joint family much less of a co-parcenery as laid down by the Supreme Court in Commissioner of Income Tax -v.- G. S. Mills, and therefore what was prohibited in law for Gowramma could not have been available to her by an indirect method by calling herself as a guardian of minor karta and therefore this argument of Sri V. Krishna Murthi has to fail. He did not agree with the contention of Sri V. Krishna Murthi that as natural guardian of her minor children she had the power to alienate the whole of the joint family property including her own share for legal necessity or for benefit to the estate. The other point canvassed is applicability of Section 7 of the Limitation Act. Section 7 of the Limitation Act, reads as follows : "7. Disability of one of several persons.-- Where one of several persons jointly entitled to institute a suit or make an application for the execution of a decree is under any such, disability, and a discharge can be given without the concurrence of such person, time will run against them all ; but where no such discharge can be given, time will not run as against any of them until one of them becomes capable of giving such discharge without the concurrence of the others or until the disability has ceased. "Explanation-I.- This section applies to a discharge from every kind of liability, including a liability in respect of any immoveable property. Explanation-II.- For the purposes of this Section, the manager of a Hindu undivided family governed by the Mitakshara Law shall be deemed to be capable of giving a discharge without the concurrence of the other members of the family only if he is in management of the joint family property." 15. It was argued on behalf of the contesting defendants that when plaintiff-1 attained majority on 14-2-1960, he ought to have filed a suit within 3 years from that date but he has filed the suit on 6-4-1964 and therefore, the suit as a whole even on behalf of the other minors is barred by the period of limitation. The argument is that plaintiff-1 became the manager of the joint family and as manager of the joint family he had the competence to give discharge within the meaning of Section 7 of the Limitation Act and therefore, he ought to have filed the suit within 3 years from the date of his attaining majority in view of the applicability of Article 60 of the Limitation Act. This argument has been countered by Sri S. Nanjundaswamy. He contended that the remaining plaintiffs were minors. They attained majority either during the pendency of the suit or during the pendency of this appeal and hence their right cannot be taken away by the application of Section 7 of the Limitation Act, He nextly contended that the 1st plaintiff was not in actual management of the joint family properties as there is no evidence to that effect and as the joint family properties consisting of items 1(a) and II (a) and (b) of Schedule-A have been disposed of by Gowramma, Explanation-II of Section 7 would not apply and hence the argument of Sri V. Krishna Murthi has to fail. 16. One more contention advanced by Sri S. Nanjundaswamy is that in Misc. 43/1959 instituted by Arasappa on 13-2-1959, an interim receiver was appointed and the property was under his superintendence and hence of the Court till the receiver came to be discharged by the order dated 22 1-1962 (Ex.D.11) and therefore, it must be held that during the said period from 13-2-1959 to 22-1-1962, the property was under the superintendence of the Court of Wards and as such plaintiff-1, would in law, attain majority after completing the age of 21 years as per Section 3 of the Indian Majority Act, 1875. 17. Though it is seen that some dispute has been raised in regard to the date of birth of plaintiff-1 as 14-2-1942, we are clearly of the opinion that that fact does not admit of any dispute in view of the contents of Ex. P. 5, the Secondary School Leaving Certificate and further in view of plaintiff-1 himself as stated in I.A. No. 10 filed in Misc. 43/1959 seeking that he should be impleaded as a party on the ground that he had become a major. He has in so many words narrated in it that his date of birth is 14-2-1942. Further in his evidence, plaintiff-1 has clearly stated that the date of birth mentioned in Ex. P. 5 is his correct date of birth. In that view of the matter, he completed the age of majority on 14-2-1960. The suit has been instituted on 6-4-1964 which would be beyond 3 years after attaining the age of majority. At this juncture, the contention of Sri Nanjundaswamy on the basis of Section 3 of the Indian Majority Act may conveniently be dealt with. 18. Section 3 of the Indian Majority Act, 1875 reads as follows : "3. Age of majority of persons domiciled in India.-Subject as aforesaid every minor of whose person or property, or both, a guardian, other than a guardian for a suit within the meaning of Chapter XXXI of the Code of Civil Procedure has been or shall be appointed or declared by any Court of justice before the minor has attained the age of eighteen years, and every minor of whose property the superintendence has been or shall be assumed by any Court of Wards before the minor has attained that age shall, notwithstanding anything contained in the Indian Succession Act or in any other enactment be deemed to have attained the majority when he shall have completed his age of twenty-one years and not before. Subject as aforesaid, every other person domiciled in India shall be deemed to have attained his majority when he shall have completed his age of eighteen years and not before." It is stated on both sides that there was no Court of Wards Act in force in the old Mysore area and even uptil now. The parties belong to old Mysore area. Therefore, no Court of Wards was established in this area. Now the question is whether the District Court while dealing with Misc. No. 43/ 1959 under the G & W Act, would be a Court of Wards in view of appointing the interim receiver for superintendence of the property of the minors concerned and also in view of the legal position that superintendence by a Receiver appointed by a Court would be superintendence by the Court itself. We have no hesitation in observing that this line of reasoning is far-fetched. The Court of Wards contemplated under Section 3 of the Indian Majority Act and the superintendence of the property of the minor by such Court of Wards cannot by any stretch of imgination be superintendence by a Court through a Receiver appointed by it. The Court of wards contemplated under the Court of wards Act has no such power as an ordinary Civil Court. Appointment of a Receiver by the Court under the G & W Act is under Section 12 of the G & W Act and that is an interim arrangement. Such appointment is under the provisions of Order 40 of the Code of Civil Procedure. Therefore, we cannot accept this contention. When that is so, the age of majority of plaintiff-1 cannot be extended, to his becoming 21 years of age. Hence it is plain that atleast so far as he is concerned, the suit is barred by time as provided under Article 60 of the Limitation Act. 19. The question whether Article 60 or 65 of the Limitation Act applies depends on the legal position whether these transactions entered into by Gowramma are void or voidable. According to Sri Nanjundaswamy, they are void on two grounds. The first is that the transactions are hit by Section 11 of the M and G Act. The second is, as a natural guardian, she could not have alienated the interest of the minors in the joint family property even for legal necessity or for the benefit of the estate. 20. Before going to this question, we deem it appropriate to deal with the application of the provisions of M and G Act particularly in relation to Sections 6, 8 and 11 bearing in mind the provisions of Section 12 of the said Act. 21. It has been already shown that the suit 'A' Schedule properties including item I (b) are the joint family properties. The members of the joint family at the relevant point of time were Gowramma, plaintiffs, defendant-14 and deceased Sakku. Hence it goes without saying that the plaintiffs had an interest in the joint family properties. Section 4(b) of the M and G Act defines 'guardian' as follows : "4(b) 'guardian' means a person having the care of the person of a minor or of his property or of both his person and property, and includes : (i) a natural guardian, (ii) a guardian appointed by the will of the minor's father or mother, (iii) a guardian appointed or declared by a Court, and (iv) a person empowered to act as such by or under any enactment relating to any Court of wards." Section 4(c) defines 'natural guardian' to mean any of the guardians mentioned in Section 6. The very fact that the 3 other classes of guardians enumerated in Section 4(b) of the M and G Act are separately noted and 'natural guardian' is also separately noted in Section 4(c) has to be borne in mind. Section 6 of the M and G Act clearly lays down that in the absence of the father, mother will be the natural guardian. G. Narayan died on 20-9-1956. Therefore, Gowramma, the mother of the plaintiffs and defendant-14 and deceased Sakku became the natural guardian. Section 6 of the M and G Act reads as follows : "6. Natural Guardians of a Hindu minor : The natural guardians of a Hindu minor in respect of the minor's person as well as in respect of the minor's property (excluding his or her undivided interest in joint family property), are-- (a) in the case of a boy or an unmarried girl - the father, and after him, the mother : provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother ; (b) in the case of an illegitimate boy or an illegitimate unmarried girl -- the mother, and after her, the father ; (c) in the case of a married girl - the husband;" Thus it is plain that a minor's undivided interest in the joint family property does not fall within the ambit of Section 6 of the M and G Act. When that is so, Section 8 dealing with the powers of a natural guardian and laying down the necessity for a natural guardian to obtain permission or sanction from the Court before alienating the minor's property will not be attracted so far as the minor's undivided interest in the joint family property is concerned. Section 8(3) of the M and G Act lays down that any disposal of immoveable property by a natural guardian, in contravention of Subsection (1) or Sub-section (2) is voidable at the instance of the minor or any person claiming under him. When Section 8 does not take within its ambit the minor's undivided interest in the joint family property, Section 8(3) would not be applicable. Therefore, the contention based on the provisions of Section 8 in challenging the suit transactions has no legs to stand. 22. Now it is to be examined whether the suit transactions are void in view of the bar provided in Section 11 of the said Act. Section 11 of the M and G Act reads as follows : "De facto guardian not to deal with minor's property : After the commencement of this Act, no person shall be entitled to dispose of, or deal with, the property of a Hindu minor merely on the ground of his or her being the de facto guardian of the minor." Understanding of the provision involves 2 important questions : (1) who is a 'de facto' guardian ? (2) whether this provision applies to minor's undivided interest in the joint family property. The other questions that may be involved in understanding the provisions of Section 11 would no come to surface in this case as they would have no relevance to the facts and circumstances of the case. 23. 'De facto guardian' is not defined anywhere in the M and G Act or in G and W Act This takes us to the customary Hindu Law. The Learned Author Sri Mulla has in his book titled 'Hindu Law' 15th Edition, summed up the position in law at page 636 as follows ; "A person who is not an ad hoc guardian and does not pose as a guardian for particular purpose, but manage the affairs of the infant in the same way as a de jure guardian does could be described as a 'de facto' guardian although he is not a natural guardian or a guardian appointed by the Court." Further on, the Learned Author has summed up to the effect that a de facto guardian has the same power of alienating the property of his ward as a natural guardian. While understanding who would be the 'de facto guardian', it would not, in our considered opinion, be necessary to take into consideration whether he would be in regard to the separate or exclusive property or his undivided interest in the joint family property. That would be immaterial. We have already pointed out the classification of guardians as found in Section 4 of the M and G Act. The position in jaw as stated by Sri D.F. Mulla summed up on the principles enunciated in various decisions leads to the necessary conclusion that a 'natural guardian' is not a 'de facto guardian' and 'de facto guardian' cannot be a 'natural guardian'. De facto guardian can neither be a guardian appointed by a Court under the G and W Act nor be a testamentary guardian. 24. We have already pointed out that 'de facto guardian' is not defined either in M and G Act or G and W Act. We are unable to find any clear definition even under the customary Hindu Law. One can easily see that 'de facto' is to be understood in law in relation to what is 'de jure'. Shorter Oxford English Dictionary gives the meaning of 'de facto' as "in fact, in reality, in actual existence, force or possession as a matter of fact." Therefore, it will have to be, in our opinion, understood that a person who is in fact acting as a guardian of the person of a minor and of the property of a minor having the same in his physical possession so as to enable him to exercise control over it, would be a 'de facto' guardian. But he could not be a guardian of any other type already adverted to by us. In the decision in Palani Goundar -v.- Vanjiakkal, 1956(1) Madras Law Journal 498. It is laid down as follows: "A de facto guardian of a minor is one who is not a legal guardian in the sense that he is either a natural guardian or a testamentary guardian or a Court guardian, but who being interested in the minor, though a stranger, takes charge of the management of the minor's property." Therefore, the inevitable conclusion is that a 'natural guardian' and a 'de facto guardian' of a minor cannot coexist. When Gowramma, the mother of the plaintiffs, defendant-14 and deceased Sakku was very much there in the picture, there could not be any 'de facto guardian.' Therefore, the alienation by Gowramma cannot, in law, be considered as an alienation made by a de facto guardian and as such Section 11 of the M and G Act would not apply. In the instant case, Gowramma is undoubtedly the natural guardian of the minors. She was in actual possession of the properties of the joint family including the minors' undivided interest in them. The minors 1st & 2nd Pltf in question had separate property viz., Schedule 'B' and 'C' properties. She was in actual possession and management of the said properties also. Therefore, she would satisfy all the qualifications of a 'de facto guardian'. Therefore, Gowramma would as well be a 'de facto' guardian of the suit schedule properties. But she cannot be a de facto guardian as she is a natural guardian. Then in is difficult to understand how she could be the natural guardian of only 'B' and 'C' schedule properties while at the same, she was actually in possession and management of 'A' schedule properties also in the very capacity. She had not intruded in the position of 'guardianship' so as to be called 'guardian de son tort' as defined in Black's Law Dictionary Fifth Edition (1979). Therefore, it appears plain to our mind that to make a distinction between the separate properties of the minors and undivided interest of the minors in the joint family properties so far as management by a natural guardian is concerned would be nothing but artificial. At this stage, Sri Nanjundaswamy's contention that so far as the minor's undivided interest in the joint family property is concerned, Gowramma was a 'de facto guardian' may conveniently be dealt with. 25. Sri Nanjundaswamy placed reliance basically on two decisions. The first one is M. Peethambaram -v.-N. Lakshminarayana, 1978(1) Andhra Wekly Reporter 512. This decision is rendered by the learned Single Judge Jeevan Reddy, J. of the Andhra Pradesh High Court. It is laid down that M & G Act curtails the powers of the de facto guardian under the old Hindu Law to deal with the property of the minors. It further lays down that Section 11 read with the definition of the expression 'guardian' in Clause (h) of Section 4 shows that the Parliament does not choose to recognise the 'de facto guardian' as one of the guardians in respect of the property of a Hindu minor and has made it clear that no person shall be entitled to dispose of or deal with the property of a minor (whether an undivided share or otherwise) merely because he purports to act as his de facto guardian. In the said case, alienations were effected by the paternal grand-father. The next decision is Pattayi Padayachi -v.- Subbaraya Padayachi, 1980(2) Madras Law Journal 296. It has to be observed that this decision fully supports this part of the contention of Sri S. Nanjundaswamy. It is rendered by a Single Judge (Ratnam, J.) of the Madras High Court. It has been held that on the death of the father when mother as guardian alienates the property, the alienation is void. It is also held that Section 11 of the M & G Act takes within its ambit both the separate property of the minors and their undivided interest in the joint family property. Lastly it has been held that so far as the minor's undivided interest in the joint family property is concerned, the mother, though a natural guardian of the persons of the minors, will be a de facto guardian, of such undivided interest. It is because of this we have observed that this decision fully supports the contention of Sri S. Nanjundaswamy. 26. Section 11 of the M & G Act does not, by itself state who are de facto guardians vis-a-vis which kind of property of the miner. Therefore, as we have already observed, one has to go to the position in law according to the customary Hindu Law. That position has been already looked into in one of the preceding paragraphs. It has been found that natural guardian and de facto guardian cannot co-exist. Therefore, to make out such a distinction vis-a-vis the separate property of the minor's and minor's undivided interest in the joint family property would be, in our considered opinion, absolutely artificial. It is settled law that a natural guardian of a minor has the necessary competence to deal with even the separate property of the minors. We do not consider that any authorities need be cited in support of this position in law. None-the-less, natural guardian remains a guardian of the minor in other senses also. No distinction has been made under the customary Hindu Law except in regard to the alienations in respect of undivided interest of the minors in the joint family properly. 27. In Sunamani Dei -v.- Babaji Das, , R. N. Mishra, J. (as he then was) has held that when the minor and his mother constitute a Hindu joint family each having a undivided interest in the house belonging to the family, in the absence of the father, the mother, as natural guardian, can alienate even the minor's half share in the house under the personal law. Dealing with the question that a female member cannot act as the karta of a joint family, his Lordship has held as follows : "The sharp division in judicial opinion as to whether a female member can act as the karta has been set at rest by the Supreme Court in (Commissioner of Income-tax v. Seth Govindram Sugar Mills). Law has also been settled that a Hindu joint family can exist with one male member and his mother (See , G. Buddanna v. Commissioner of Income Tax, Mysore). At the time of the impugned alienation (Ex. A), the minor and his mother were members of such a Hindu joint family each of them having a moiety undivided interest in the property (as conceded in paragraph 1 of the plaint). The plaintiff asked for a declaration that Ex. A was not valid alienation. So far as the mothers (defendant-No. 3's) share is concerned, on the finding of the lower Appellate Court the same has got to be upheld. So far as the minor's half share is concerned, as natural guardian the mother could alienate the same under the personal law." 28. In the present case, Gowramma had her share in the joint family property including the suit Schedule-A property in view of her husband having died after the coming into force of the Hindu Succession Act, 1956. Under Ex.D.1 and D.32, she has sold away item No. 1(b) and 2(a) and 2(b) of suit Schedule 'A' property on her behalf and on behalf of her minor children as natural guardian. This makes it clear that she has under the said two sale deeds, sold away her share and the minors' undivided interest in the joint family properties. The position in law, as already stated by us, is very well supported by the decision in A.I.R. 1974 Orissa page 1845. In this connection the decision of the Division Bench of the Madras High Court in Venkatakrishna Reddy -v.- Amarababu, 1971 (2) Madras Law Journal 466 after considering the provisions in the M & G Act and G & W Act and what is available under the Customary Hindu Law, lays down as follows : "The distinction that obtained under the general Hindu Law between the separate property of a minor and his undivided coparcenary interest is kept up also under the provisions of the Hindu Minority and Guardianship Act of 1956. Section 6 of that Act which defines a natural guardian excludes minors' undivided interest in a joint family property from the operation of that Section and Section 12 imposed a prohibition against the appointment of a guardian by a Court other than the High Court in respect of an undivided interest of a minor in a joint family property when such joint family property is in the management of an adult member of the family. Therefore, it is not possible to hold that the fourth defendant as the natural guardian of the minor sons is authorised to sell the undivided interest of the minors as such in the joint family properties either under the general Hindu Law or under the provisions of this Act. But in this case the fourth defendant has purported to sell not the undivided interest of the minors as such in the joint family property but the entirety of the properties acting as guardian of both the minors and the question is whether the agreement for sale of the entire joint family property of the minors is valid." It was held valid. 29. This position in law has got to be necessarily so because the natural guardian Gowramma in this case has every legal right to manage the properties in view of the simple fact that she had also a share in the properties. In order to manage her share of the properties, she must necessarily manage the properties in entirety which includes minors' undivided interest in the joint family as well. 30. In the decision in Pattayi Padyachi -v.- Subbaraya Padayachi, 1980(2) Madras Law Journal 296 reliance has been placed on the decision of the very High Court in Ranganatha Gounder -v.- Kuppuswami Naidu, 1976(2) Madras Law Journal 128. The facts in 1980 (2) M.L J.2964 were as follows : In 1949, the father died leaving behind him his minor sons, respondents I and 2 and his widow the third respondent. It was alleged by Respondents 1 and 2 that after the death of their father, their mother the third respondent did not look after the family and the family affairs but launched a programme of alienating the family properties, that defendants 2 to 9 were such alienees and that those alienations were not binding on them as they were minors. Respondents 1 and 2 prayed for partition and separate possession after setting aside the alienations as void. The relief claimed by them was granted. It is to be remembered that the father of Respondents 1 and 2 had already expired and the alienations were made by the mother as natural guardian after the death of their father. In the decision in 1976(2) Madras Law Journal, 1287, which has been made use of to base the conclusion as aforesaid, the mother as guardian of the minor plaintiff has alienated the properties even when the father was alive. Therefore, this fact shows that the father was very much alive. When such being the case, such alienations made by the mother as guardian must be regarded as void in law. Hence we are respectfully unable to agree with the principle laid down in Pattayi Padayachi's case, 1980(2) Madras Law Journal 296. 31. The question whether the mother would be a de facto guardian in regard to the minors undivided interest in the joint family properties as laid down in the very decision has been already answered by us. The question concerning Section 11 of the M & G Act is whether it takes within its ambit the minor's undivided interest in the joint family property also. On this question 2 decisions reported in 1978(1) Andhra Weekly Reporter 5123 (already referred to) and 1980(2) Madras Law Journal, 2964 (already referred to) are one in laying down the proposition that the minor's undivided interest in the joint family properly also falls within the ambit of Section 11. The simple reasoning is that Section 6 clearly excludes such undivided interest of the minors in the joint family property from its ambit. But the plain language of Section 11 does not clearly exclude. Therefore, the legislature must have intended that all the property of the minors could be within the ambit of Section 11 of the M & G Act. 32. We have already come to the conclusion that Gowramma, the mother of the plaintiffs, defendant-14 and deceased Sakku, being a natural guardian, cannot in law, be the de facto guardian vis-a-vis minors' undivided interest in the joint family property. That is sufficient to lead to the conclusion that the aforesaid question in regard to the ambit of Section 11 of the M and G Act might be unnecessary to be gone into. But even, then, we consider it appropriate to deal with that aspect also as the same has been canvassed before us. 33. The provisions of the M and G Act, the G and W Act and the customary Hindu Law relating to Manager and karta of a joint family have been considered in the decision in Re. Krishnakant, by Bhagwati, J. (as he then was). A detailed and exhaustive examination of the said provisions has been made and step by step reasoning has been developed in a cogent manner. We find that there is very little scope to improve on the reasoning found therein. It has been held that the M and G Act has been passed to amend and codify certain parts of the law relating to minority and guardianship among Hindus. The Act is thus a codifying enactment in respect of the subject matter with which it deals. The subject matter with which the Act deals is limited to guardians in respect of the minor's person or in respect of the minor's property other than his undivided interest in joint family property, whether they be natural guardians or testamentary guardians or guardians appointed or declared by Court, and the concept of a guardian in respect, of the undivided interest of a minor in joint family property is not only foreign to the Act but is specifically excluded from the scope and purview of the Act by express enactment. It has been further held that the manager and karta of a joint family can alienate the joint family property without obtaining permission of the Court under Section 8 of the M and G Act. This decision is followed in Venkataramanamurthy -v.-Subbayyamma, 1966(1) Andhra Weekly Reporter 368 and the same principles are laid down. 34. The decision in (Re. Krishnakant's case, ) is not at all referred to in the decision in Pattayi Padayachi's case (1980(2) Madras Law Journal, 296 but it has been referred in the decision in M. Peethambarams's case (1978(1) Andhra Weekly Reporter, 5123) in paragraph 17. The reason why Jeevan Reddy, J. chose not to accept the reasoning given in Re. Krishnakant's case, , can very well be expressed by excerpting the whole of paragraph 17 of the Judgment. It reads as follows : "17. In re : Krishnakant arose from a Petition filed by the guardian for sanction to alienate certain immovable properties belonging to the joint Hindu family consisting of himself, his wife and his four minor children. While granting the permission, the Court imposed certain conditions. The guardian filed a Revision Petition before the High Court complaining of the said condition. When the Revision Petition came up for hearing before the High Court, Bhagwati. J. was of the prima facie opinion that the very petition is not maintainable under the Act and therefore, he heard the counsel specifically on that point, and after referring to Sections 4, 6, 8, 9 and 12 of the Act, came to the conclusion that "all the three types of guardians dealt with by the Act viz., natural guardian, testamentary guardians and guardians appointed or declared by Court, or either guardians dealt in respect of the minor's person or guardians in respect of the minor's property other than his undivided interest in that joint family property and the Act does not contemplate and deal with any guardian in respect of the undivided interest of a minor in the joint family property". It was further observed : "The subject matter with which the Act deals is limited to guardians in respect of the minor's person in respect of the minor's property, other than his undivided interest in the joint family property, whether they be natural guardians or testamentary guardians or guardians appointed or declared by Court, and the concept of a guardian in respect of the undivided interest of a minor in joint family property is not foreign to the Act but is specifically excluded from the scope and purview of the Act by express enactment ........ " On the said reasoning, the Learned Judge held further : "The restrictions contained in Section 8 do not therefore, apply in respect of the undivided interest of a minor in the joint family property and a father who is the manager and karta of the joint and undivided Hindu family consisting of himself and his sons can alienate joint family property in its entirety including the undivided shares of his minor sons in such property without obtaining the previous permission of the Court provided the alienation is one otherwise justified under Hindu Law........" A perusal of the judgment would show that the Learned Judge did not at all refer to Section 11 of the Act. In fact, for the purpose of the said case, it was wholly unnecessary to refer to Section 11 of the Act." As is clear from the above, it was found that in the said decision, reference to Section 11 of the M and G Act was not at all found. With great respect, we are unable to agree in view of what we have found in Re : Krishnakant's case, of the said decision found at page 71. A reading of the whole paragraph 7 leaves no doubt in our mind that though Section 11 does not appear anywhere in figures, what is provided in it has been taken into consideration along with the provisions of Sections 4, 6, 7, 8, 9, 12 and 13 of the M and G Act. It is after the examination of these provisions, as already stated by us, and the provisions in the G and W Act and the Hindu Law relating to Manager and karta of a joint family particularly when a father having minor children is the karta or the manager, that the reasoning has been developed and the conclusion arrived at and the principle has been laid down. We respectfully accept the reasoning and the conclusion given in Re: Krishnakant's case, and hold that Section 11 of the M and G Act does not take within its ambit the minor's undivided interest in the joint family property. Therefore, the other part of the contention of Sri S. Nanjundaswamy also fails. 35. We have already held that a natural guardian who has a share in the joint family property along with the minors' undivided interest in the same, has the legal competence to alienate the property as a whole, This is well supported by the principle of law available in Trimbak Raoji -v.- Lonkaran, AIR 1948 Nagpur 324, wherein it is held as follows: "There is nothing in the Hindu Law which absolutely forbids a minor though a senior member of a Joint Hindu Family from occupying the status of a managing member of the Joint Hindu Family, particularly when such a senior member has a capable guardian to represent him, A minor in order to be a managing member need not be of an age capable of having a wife and a son". This principle has been repeatedly followed by the Orissa High Court and the Patna High Court in Budhi Jena -v.-Dhobai Naik, , Trutia Mirudha -v.- Basudev Singh, , Nathuni Mishra -v.- Mahesh Mishra, , Jageenath Singh -v.- Narayan Sarogi, & Tarni Prasad -v.- Basudeo, . For our purpose, we take this principle as well-settled. 35. In Trimbak Raoji's case, AIR 1948 Nagpur 324, the decision of the Madras High Court in Mohideen Ibrahim Nachi -v. Ibrahim Sahib, AIR 1948 Nagpur 324 was dissented from. In the decision in Venkatakrishna Reddy -v.- Amarababu, 1971 (2) Madras Law Journal 466, it has been laid down that the mother acting as the natural guardian of the eldest son who is the karta of the joint family or as the natural guardian of all the minor coparcenars as one group and of the property of that group as a whole would have authority to enter into a contract of sale for the benefit or for the necessity of the minor co-parcenars. This principle laid down by the Nagpur High Court in Trimbak Raoji's Case, AIR 1948 Nagpur 324 has been reiterated by the Division Bench of the Madras High Court in Venkatakrishna Reddy's case, 1971 (2) Madras Law Journal 466. 37. Sri Nanjundaswamy argued that Ex. D-1 and D-32 did not make out that Gowramma had alienated the properties as guardian of the Karta viz., plaintiff-1 who was the eldest son in the family (though a minor) and therefore, this principle would not be attracted. We have already pointed out that in both these transactions, Gowramma has been described as 'not only on her behalf but also on behalf of the minors'. That necessarily includes plaintiff-1, who in law, ought to be regarded as karta, though a minor member. Hence we reject this contention. 38. This brings us to the question whether Article 60 or Article 65 of the Limitation Act applies to the case on hand. 39. The conclusions reached in the preceding paragraphs show that the transactions evidenced by Exhibits D. 1 and D. 32 are not void but voidable. They have been entered into by the guardian of the minors. We are not at this stage concerned with the share of Gowramma in the joint family property. Therefore, it is plain that Article 60 and not Article 65 applies to the facts of the case. When that is so, the suit of the 1st plaintiff is clearly barred by the period of limitation. Whether the suit of the other plaintiffs also would be barred by virtue of Section 7 of the Limitation Act is to be considered. 40. Section 7 of the Limitation Act has been excerpted in paragraph 11 of the Judgment. The stress is on Explanation II. Sri Nanjundaswamy argued that the burden is on the defendants to establish that plaintiff-1 on attaining the age of majority was actually in the management of the joint family properties, but the material on record is not sufficient to establish that fact while on the other hand, it is seen that the properties mentioned in Misc. 43/1959 were in the possession and superintendence of the Receiver and therefore, Section 7 is not applicable. He further argued that even in the absence of a provision like Explanation-II in Section 7 of the Indian Limitation Act, 1908, Courts have ruled that for the application of Section 7, actual management of the joint family property by the person who attains majority has been held necessary. He relied on the decision of the Bombay High Court in I-T. Commissioner -v.- Ahmedabad Advance Mills, AIR 1938 Bombay 206. It is laid down therein that where an elder brother is not the manager of the family and is entitled to sue on behalf of himself and his minor brothers, Section 7 does not apply and the time begins to run against the minor brother on his attaining majority. In this decision in Bapu Tatya Desai -v.- Ala Ravji Desai, AIR 1921 Bombay 289, has been distinguished on the ground that the actual management of The joint family by the elder brother had not been found in the said case. In Bapu Tatya Desai's case, AIR 1921 Bombay 289 it has been laid down as follows : "The main object of the Legislature in Section 7 is to limit the indulgence which is otherwise given to minors, so that if there are several minors who can claim the benefit of Section 6, that concession does not extend to cover the whole period of time upto the youngest of the minors becoming a major, but can only be availed of by the eldest of them." It is further laid down therein that when the plaintiffs were brothers and members of the joint family, and one of them is more than 21 years of age, the suit brought by him attracted the provisions of Section 7 of the Indian Limitation Act, 1908. 41. Sri Nanjundaswamy nextly relied on the decision in Bhikarchand v. Lachhamandas, AIR 1938 Bombay 392. The facts of that case are as follows : The mother of two brothers who were minors alienated the properties which were the joint family properties of the two brothers. No other property belonging to the two brothers was in existence. The two brothers were maintained by their aunt. Their Lordships of the Bombay High Court held that the ordinary presumption which arises in the case of Joint Hindu Family possessed of ancestral property, that the eldest must be manager of the family and its property cannot apply under the facts' and circumstances of the case. Hence Section 7 of the Indian Limitation Act, 1908, was not attracted. 42. We have already shown that Schedule-'B' and 'C' properties are the separate properties of the minors (plaintiffs 1 & 2) and that the 1st plaintiff himself has, in his application Ex. 0. 10 filed in Misc. 43/1959 expressly stated that he had come of age and was in actual management of the joint family and its properties. Hence it would be too late in the day to contest this fact. It is also avilable in the evidence in this case that the family of the plaintiffs is a trading family and was running business. 43. The other decision relied on by Sri Nanjundaswamy is Shantaya v. Mallappa, AIR 1938 Bombay 392. Stress is placed on the 'actual management'. For this case also, the very same reasoning given in the preceding paragraph applies. 44. In view of the foregoing reasons, we hold that the 1st plaintiff became the manager of the Joint Hindu Family on his attaining the age of 18 and particularly so on his attaining the age of majority during the pendency of Misc. 43/1959 and came to be in actual management of the joint family properties including the suit schedule 'A' property so far as his minor brothers and sisters are concerned. Therefore, the ingredients of Section 7 of the Indian Limitation Act, 1908 are satisfied. Hence the inevitable conclusion that the suit is barred by the period of limitation even in regard to other plaintiffs also has to be reached and is reached. 45. We have already stated that the Trial Court has found that in regard to item 1(b) of suit schedule 'A', legal necessity has been established by defendants 1 and 2 while the same is not established by defendants 5 to 13 in regard to item Nos. 2(a) and 2(b) of Suit Schedule-A. In view of the reasons and conclusions reached by us in the preceding paragraphs, we do not consider it necessary to go into all the details concerning this part of the case of the parties. But Ex.D. 32 under which the property in item 1(b) of Suit Schedule-A has been sold is to meet the necessity of clearing the income tax dues which amounted to Rs. 16,809-63. This itself shows that it would be of no use to contend that the sale evidenced by Ex. D. 32 is not supported by legal necessity. The reasons given by the trial Court to conclude that the sale transaction in Ex. D. 1 is not supported by legal necessity or benefit to the estate are well-supported. We do not think it advisable to reiterate the same. This conclusion of the trial Court is confirmed by us. But as already made clear these conclusions on the question of legal necessity or benefit to the estate are not of much consequence in view of the findings on the legal aspects. 46. In the result, this appeal fails and is dismissed. No costs. 47. Sri S. Nanjundaswamy, Learned Counsel appearing for the appellant made an oral request for a certificate to appeal to the Supreme Court. The request is rejected.

Author: Nesargi

Rajasekhar vs Siddalingappa on 29 July, 1986

Karnataka High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.19785 of 2010 RAJESH KUMAR SINGH Versus THE STATE OF BIHAR & ANR. ----------- 5. 21.12.2010 As prayed for, put up this case on 28th March, 2011 at the top of the list. In the meantime, interim relief as granted on 23.6.2010 shall continue. Let a copy of this order be communicated through FAX at the cost of the petitioner. Anand Kr. ( Mandhata Singh, J.)

Rajesh Kumar Singh vs State Of Bihar on 21 December, 2010

Patna High Court - Orders

[Section 26] [Complete Act]

Central Government Act

JUDGMENT F.M. Ibrahim Kalifulla, J. 1. The plaintiff in C. S. No. 454 of 2005 and the petitioner in W. P. No. 17576 of 2005 is the applicant in all the above referred to applications. 2. In Application No. 3335 of 2005, the applicant-plaintiff prays for an order to set aside the earlier order dated June 21, 2005, passed in O. A. No. 543 of 2005 and restore the said application to this file. The other applications, namely, O. A. Nos. 692, 2302, 2883 and 2884 of 2005 are dependent upon the disposal of Application No. 3335 of 2005. 3. The brief facts which are required to be stated are that according to the applicant-plaintiff, it was inducted as a tenant in respect of the suit schedule theatre covered by a lease deed dated November 28, 1989, that due to default in payment of income-tax committed by the landlord, a proclamation of sale was made by the Income-tax Department in the notice dated February 7, 2005, for auctioning the said suit schedule theatre and the date of auction was notified as March 17, 2005. The property was auctioned as scheduled on March 17, 2005, wherein, the respondents-defendants in the suit (hereinafter referred to as "the respondents") were declared as highest bidders. It is stated that when the respondents attempted to interfere with the possession of the applicant-plaintiff, a writ petition in W. P. No. 10094 of 2005, was filed by the applicant on March 22, 2005, as against the Income-tax Department for a writ of mandamus, to restrain the Income-tax Department from interfering with the applicant-plaintiffs possession except as provided in Rule 40 of the Income-tax (Certificate Proceedings) Rules, 1962, and the said writ petition was disposed of on March 28, 2005, holding that the Department should not interfere with the possession of the applicant except after invoking Rule 40 and that the said order was subsequently modified on April 8, 2005, leaving open the question relating to application of Rule 40. 4. The auction held on March 17, 2005, was stated to have been confirmed on May 4, 2005, in favour of the respondents who also paid the entire sale consideration. According to the applicant-plaintiff on May 5, 2005, since at the instance of the respondents there was a threat of dispossession, the present suit came to be filed for permanent injunction on May 6, 2005. On May 18, 2005, an order of interim injunction was granted in O. A. No. 543 of 2005, pending further orders. In the meantime, as against the subsequent sale certificate dated May 4, 2005, ordering the applicant-plaintiff to vacate the theatre premises, a writ petition was filed by the applicant-plaintiff in W. P. No. 17576 of 2005 as against the Income-tax Department who will hereafter be referred to "the I. T. Department" challenging the sale certificate. The said writ petition was entertained on May 24, 2005, and an interim order was granted in W. P. M. P. No. 19093 of 2005. Though the said interim order was initially granted for a limited period, subsequently, by order dated June 22, 2005, it was extended for one more week. It is stated that since the advocates were on boycott, no representation could be made subsequently and the said interim order was not specifically extended. In the meantime, since the respondents were not put in possession of the suit schedule theatre premises after the issuance of the sale certificate dated May 4, 2005, it is stated that the Income-tax Department was approached by the respondents for cancellation of the sale which application is stated to have been rejected and as against the said rejection order further appeal was filed by the respondents before the higher authority. 5. In the abovesaid background, counsel for the respondents filed a memo on June 20, 2005, in O.A. No. 543 of 2005 which reads as under : MEMO FILED BY THE DEFENDANTS The defendant submits as follows : Without prejudice to their rights with regard to the allegations made in the plaint and application against the defendants, and the defendants states that they have already filed an appeal before the Commissioner, Income-tax Department, Chennai, to set aside the auction sale, in view of irregularity in the sale proceedings. It is therefore prayed that this hon'ble court may be pleased to close the applications as infructuous and also the suit may be dismissed and thus render justice. Dated at Chennai this the 20th day of June, 2005. Counsel for defendants. 6. Based on the abovesaid memo filed by the respondents, an order dated June 21, 2005 in O. A. No. 543 of 2005 and A. No. 2302 of 2005 came to be passed and the relevant part of the order reads as under : 3. From the above, it is seen that the defendants have already approached the Commissioner, Income-tax Department, Chennai, to set aside the auction sale on the ground that there were irregularities in the sale. In view of such categorical stand, there need not be a specific order of injunction as granted by this court and accordingly the application for interim injunction is closed with liberty to the plaintiff to approach this court for appropriate orders in future, if necessary. Consequently, the application for vacating the interim injunction is also closed. Subsequently W.P.M.P. No. 19093 of 2005 which was in the list on July 13, 2005, came to be adjourned by four weeks as the applicant was not represented by its counsel due to general abstention from court work by advocates. On July 13, 2005, after issuing a notice of the same date, the Income-tax Department and. the respondents are stated to have directed the applicant to hand over physical possession of the suit schedule theatre within one hour and it was in the abovestated manner, the applicant was dispossessed from the suit schedule theatre and after such dispossession of the applicant, possession was also handed over to the respondents. It is in the abovestated circumstances, the applicant-plaintiff has come forward with the above applications. Mr. Ravi, learned Counsel appearing on behalf of the applicant-plaintiff, contended that in the light of the fact that in the proclamation of sale dated February 7, 2005, the status of the applicant as tenant having been accepted by the Income-tax Department, there was no scope for the Income-tax Department to invoke Rule 39 of the Income-tax (Certificate Proceedings) Rules, 1962, and that the relevant rule applicable is only Rule 40 and in the said circumstances, the manner in which the applicant was dispossessed from the suit schedule theatre premises was wholly illegal and such dispossession cannot be construed as in accordance with law. Learned Counsel relied upon the decisions of the hon'ble Supreme Court reported in Biswabani Ptd. Ltd. v. Santosh Kumar Dutta ; Hitkarini Sabha v. Corporation of the City of Jabalpur , as well as the Division Bench judgment of this Court reported in A. Stephen Samuel v. Union of India [2004] 118 Comp Cas 82 ; [2003] 2 MLJ 220, According to learnedCounsel in any event, the applicant was in the status of a tenant holding over, governed by Section 106 of the Transfer of Property Act and as such, the manner in which the applicant was dispossessed from the suit schedule theatre is wholly illegal and the same is liable to be set right and the status quo ante should be restored. learned Counsel further submitted that if ultimately this Court were to hold that Rule 39 of the Income-tax (Certificate Proceedings) Rules, 1962, alone would apply, the applicant-plaintiff will unhesitatingly hand over possession of the suit schedule theatre to the respondents forthwith. As against the abovesaid submissions, Mrs. Pushya Sitaraman, standing counsel for the Income-tax Department, would contend that the relevant rule applicable to the case on hand would be Rules 16 and 39 of the Rules contained in the Second Schedule to the Income-tax Act, 1961, where the procedure for recovery of tax is prescribed and read along with the said Rules, it will have to be held that in the case of the applicant, Rule 39 of the Income-tax (Certificate Proceedings) Rules, 1962, alone would apply and if that be so, the procedure followed by the Income-tax Department while taking possession of the schedule theatre from the applicant on July 13, 2005, cannot be faulted. Mr. S. Vasudevan, learned Counsel appearing for the respondents, would contend that the remedy of the applicant-plaintiff as against the auction held on March 17, 2005, as well as the sale certificate dated May 4, 2005, are by taking recourse to the procedure prescribed under the provisions of the Income-tax Act themselves and, therefore, the applicant cannot be heard to question the action of the Income-tax Department in the suit more so in the present applications. learned Counsel would contend that such remedies as available to the applicant are provided under Rules 60, 61 and 62 of the Second Schedule to the Income-tax Act, 1961. learned Counsel also contended that under Section 293 of the Income-tax Act, the jurisdiction of the civil court having been barred as against the orders passed by the Income-tax Department, and when the suit itself is not maintainable, the lesser relief as prayed for by the applicant cannot be granted. learned Counsel would point out that if at all the civil court jurisdiction can be invoked, it can only be under Rule 11(6) of appendix 16 of the Second Schedule to the Income-tax Act, 1961, and even in such a situation subject to the result of the suit (if any), the order of the Tax Recovery Officer should be held to be a conclusive one. learned Counsel placed reliance upon the decision reported in CIT v. Parmeshivari Devi Sultania ; N. Vasudevan v. Recovery Officer and N. Janakiraman v. C.B. Radhakrishnan [2001] 4 CTC 371. 12. Having heard learned Counsel for the applicant, the respondents as well as learned standing counsel for the Income-tax Department, at the outset, it will have to be held that the manner in which the respondents dealt with Application No. 543 of 2005 by filing a memo in this Court and thereby persuaded this Court to pass an order on June 21, 2005, throws a considerable doubt about their bona fides. I am well founded in making the said observations about the conduct of the respondents inasmuch as I find that while on the one hand, it was contended on their behalf that after the issuance of the sale certificate dated May 4, 2005, when the Income-tax Department failed to hand over physical possession that created a situation leading to an irregularity in the sale proceedings warranting setting aside of the very sale itself and an application was also filed to that effect by them ; it is now shown that after the rejection of their application for setting aside the same, an appeal was preferred by them, and when the said appeal was pending, a memo was filed in this Court to close the injunction application and thereby ensured that the operation of the order of injunction operating against the respondents was closed. Simultaneously the respondents appeared to have worked along with the officials of the Income-tax Department for securing possession, ostensibly, by invoking Rule 39(2) of the Income-tax (Certificate Proceedings) Rules, 1962. Thereafter, the appeal proceedings themselves were closed on August 1, 2005, wherein the Commissioner of Income-tax purported to have passed an order dated August 1, 2005, under Rule 86 of the Second Schedule to the Income-tax Act, 1961 and it is stated therein that the very same learned Counsel for the respondents appeared and submitted that since possession of the property having been handed over, the grievance of the respondents did not survive and that the order of the Tax Recovery Officer can be confirmed. The order ultimately states that the appeal itself was dismissed as infructuous since possession had already been handed over to the respondents. Significantly there is no whisper in the order about the stand of the respondents in the memo filed by them in O.A. No. 543 of 2005 which was closed on the basis of the said memo. 13. On a cumulative consideration of the above facts, viz., the non-extension of injunction granted in W.P.M.P. No. 19093 of 2005 beyond June 29, 2005, and the subsequent order obtained by the respondents in O.A. No. 543 of 2005 based on a memo filed at their instance on June 21, 2005, and the subsequent conduct of the respondents through their counsel before the appellate authority in stating that in the light of possession secured on July 13, 2005, no further orders are necessary in the appeal and that it can be closed, only lead to the inevitable conclusion that the respondents did not act in a bona fide manner while securing such possession through the officials of the Income-tax Department. In my considered view, the said conduct of the respondents being "not bona fide", cannot be allowed to continue to retain such possession which was designedly obtained by them by deliberately misdirecting this Court to pass an order on June 21, 2005, in O. A. No. 543 of 2005, to achieve their oblique motive to secure such possession by hook or by crook. If such a conduct of the respondents is not curbed with an iron hand that would only encourage such parties to take the court for a ride in order to achieve their evil design. In any case, I am not in a position to appreciate such a conduct of the respondents in having misdirected this Court inasmuch as but for the memo filed by the respondents on June 21, 2005, there would have been no scope for the respondents or for the Income-tax Department to have dispossessed the applicant-plaintiff and put the respondents in possession of the schedule theatre. In all fairness, the parties before the court should have played their respective stand fairly and sought for the redressal of their grievances in accordance with law. 14. The abovereferred to sequence of events preceding the dispossession of the applicant-plaintiff from the suit schedule theatre and handing over possession to the respondents on July 13, 2005, only show that the respondents will go to any extent to achieve their ends in total disregard of the rule of law. 15. As far as the contentions made on behalf of the respondents as well as the Department of Income-tax, as to applicability of the relevant rule, viz., whether Rule 39 or 40 of the Income-tax (Certificate Proceedings), Rules, 1962, is concerned, that is a matter for consideration which could have been raised in the application in O.A. No. 543 of 2005 as well as W.P.M.P. No. 19093 of 2005 in W.P. No. 17576 of 2005 and invited an order from this Court putting all possible contentions in their favour Unfortunately the respondents instead of taking such a royal road have resorted to a short cut method of getting the injunction application in O.A. No. 543 of 2005 closed by filing a memo on June 20, 2005, by taking a specific stand that they were totally disinterested in getting possession of the property, the sale of which was confirmed in their favour on May 4, 2005. While at the same time, taking advantage of the order dated June 21, 2005, in the said O. A., the respondent proceeded to secure possession through the Income-tax Department. It is true that the injunction granted on April 20, 2005, in W. P. M. P. No. 19093 of 2005 was not extended beyond June 29, 2005. Even then, I am of the considered opinion that when the very question as to which of the rules would be applicable, whether Rule 39 or Rule 40 of the Income-tax (Certificate Proceedings) Rules, 1962, was the moot question to be considered in the main writ petition in W.P.No. 17576 of 2005, it was wholly inappropriate on the part of the Income-tax Department also to have taken the stand that since the injunction order not having been extended beyond June 29, 2005, it had every authority to invoke Rule 39 and dispossess the applicant-plaintiff. It is also relevant to point out that the applicant filed a reply affidavit dated July 7, 2005, which is stated to have been served on learned standing counsel for the Income-tax Department which fact is also not disputed by learned standing counsel for the Income-tax Department wherein, in para. 10, the applicant pointed out about the memo filed by the respondents in having stated in categoric terms that they were not interested in the property. In such circumstances, in all fairness, the Income-tax Department ought not to have proceeded in such a great haste to dispossess the applicant without reference to this court. Therefore, I am of the confirmed view that the prayer of the applicant in A. No. 3335 of 2005 in seeking to set aside the earlier order dated June 21, 2005, in O.A. No. 543 of 2005 is well justified. Similarly, the prayer of the applicant in W. P. M. P. No. 25189 of 2005 for restoration of possession of the suit schedule theatre premises also consequently merits acceptance. 16. The various other contentions now raised on behalf of the respondents, applicant-plaintiff and the Income-tax Department with regard to the appropriate rule which would be applicable, whether Rules 39 and 40 or the other alternate remedies available to the applicant are all matters which can be allowed to be agitated by them only in the application in O.A. No. 543 of 2005, inasmuch as at the present juncture, in the interest of justice, the status quo ante prior to July 13, 2005, in regard to the possession held by the applicant is bound to be restored. Such a step is also imminently required to be taken in order to maintain the authority of this Court so as to prevent any unscrupulous parties playing such tricks in the court to achieve and make some unlawful gains. 17. As far as the other contentions are concerned, on behalf of the applicant, reliance is placed upon the Division Bench judgment of this Court reported in A. Stephen Samuel v. Union of India [2004] 118 Comp Cas 82 : [2003] 2 MLJ 220, wherein this Court has held that Rule 40 of the Income-tax (Certificate Proceedings) Rules, 1962, would apply in respect of the property which is in the occupation of a tenant or other person entitled to occupy the same in his own right, in which event, the Income-tax Department can only make symbolic possession to the purchaser. Further, the Division Bench of this Court in an unreported judgment dated July 29, 2005, in W. A. Nos. 1172 and 1455 of 2005 after following the decisions of the hon'ble Supreme Court, has held as under in para. 7 : 7. The Supreme Court in Rame Gowda's case approved the law as stated by a Full Bench of the Allahabad High Court in Yar Muhammad v. Lakshmi Das , in which, it was observed as follows : 'Law respects possession even if there is no title to support it. It will not permit any person to take the law in his own hands and to dispossess a person in actual possession without having recourse to a court. No person can be allowed to become a judge in his own cause.' The above view was followed by the Supreme Court in Lallu Yeshwant Singh v. Rao Jagdish Singh AIR 1968 SC 620, in which the Supreme Court followed the decision of the Privy Council in Midnapur Zamindary Co. Ltd. v. Kumar Naresh Narayan Roy AIR 1924 PC 144, in which, the Privy Council observed : 'In India persons are not permitted to take forcible possession ; they must obtain such possession as they are entitled to through a court.' In Rame Gowda's case , the Supreme Court, after referring to the decisions in Munshi Ram v. Delhi Administration AIR 1968 SC 702 ; Puran Singh v. State of Punjab and Ram Rattan v. State of U.P. [1977] SCC (Crl.) 85, drew a distinction between 'settled possession' and possession which is not settled and observed as follows : 'If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession. The law will come to aid of a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking the law in his own hands, and also by restoring him in possession even from the rightful owner (of course subject to the law of limitation), if the latter has dispossessed the prior possessor by use of force.' (emphasis supplied) An example of possession which is not settled can be given by taking the case of a trespasser who enters into somebody's house overnight and occupies a portion thereof either forcibly or surreptitiously. The owner of the house, in such a case, may use reasonable force to evict such trespasser, and if he is not strong enough, may resort to the help of police to throw out the trespasser, and it is not necessary for him to file an eviction suit. However, as against a person who is in possession of the property for a reasonable length of time (i.e., in settled possession), he may be dispossessed by the true owner only by having recourse to the due process of law through a court of law for getting possession over his property. 18. It has also been held in the said decision in para. 8 as under : 8... If the possession has been forcibly taken by the respondent-Municipality, it will be restored forthwith to the appellant/petitioner. It is however, open to the respondent-Municipality either to file a suit for eviction against the appellant before the competent civil court or to initiate appropriate proceedings against the appellant before the statutory authority concerned, as are available to it in law, and if it does so, such proceedings will be decided by the court/authority concerned expeditiously, preferably within four months from the date of initiation of such proceedings, after hearing the appellant. According to the respondents and learned standing counsel for the Income-tax Department, in the case of the applicant, Rule 39 of the Income-tax (Certificate Proceedings) Rules alone would apply in which event, it would be sufficient if Rule 39 of the Second Schedule to the Income-tax Act, 1961, is invoked whereby, after tom torn, the Tax Recovery Officer himself is empowered to secure possession from the person concerned. But when once this Court was seized of the matter in O.A. No. 543 of 2005, at the risk of repetition, it will have to be held that the respondents in O. A. No. 543 of 2005 as well as the Income-tax Department who is the respondent in W.P.M.P. No. 19093 of 2005 ought to have appropriately apprised this Court of the legal position before attempting to dispossess the applicant, instead of carrying it out in an unceremonious manner as has been done by it on July 13, 2005. In the light of the fact that the rival contentions of the parties as regards the entitlement of the applicant on the one side to remain in possession as well as the prayer of the Income-tax Department to invoke Rule 39 on the other side can be considered only while dealing with O.A. No. 543 of 2005 as well as W.P.M.P. No. 19093 of 2005 and W. P. No. 17576 of 2005, I refrain myself from analysing those contentions in detail in these applications since for the present such a detailed consideration is uncalled for. One other relevant factor is that anticipating any complication being created by the respondents on a future date, in the order dated June 21, 2005, while closing the application in O.A. No. 543 of 2005, the learned judge has specifically held in para. 3 as under : 3... In view of such categorical stand, there need not be a specific order of injunction as granted by this Court and accordingly the application for interim injunction is closed with liberty to the plaintiff to approach this Court for appropriate orders in future, if necessary.... (emphasis added) 21. Therefore, such a liberty reserved for the applicant-plaintiff to approach this Court also supports the present claim of the applicant-plaintiff for setting aside the said order dated June 21, 2005, and for the restoration of its original order of interim injunction. In fact, in the judgment reported in Indian Cable Co. Ltd. v. Smt. Sumitra Chakraborty , the Division Bench has held as under in paras. 31 and 32 (page 258) : 31. In the instant case the grossly illegal acts of the defendant landlady were sought to be camouflaged under an ineffective patch of legal colouring which must have been done under legal advice. Unfortunately, these illegal acts were aided and abetted by the police, which again is an ominous trend and should be deprecated in no uncertain language. 32. This is, therefore, a fit case calling for restoration of possession to the plaintiff appellant at the interlocutory stage. To do otherwise would be to allow the defendant to perpetuate the wrong she has committed and to reap the benefit of her illegal acts which law can never permit. 22. A similar view has been taken by the learned single judge of the Andhra Pradesh High Court in the judgment reported in Cheni Chenchaiah v. Shaik Ali Saheb . In the judgment reported in Samir Sobhan Sanyal v. Tracks Trade P. Ltd. , the hon'ble Supreme Court has held in paragraph 6 as under (page 147) : 6. It would thus be clear that without any decree or order of eviction of the appellant from the demised premises, he has been unlawfully dispossessed from the premises without any due process of law. The question, therefore is : whether he should be allowed to remain in possession till his application under Order 21, Rules 98 and 99 is adjudicated upon and an order made. Though learned Counsel for the first respondent and also for the third respondent, who is one of the transferee's from the sixth respondent, sought to contend that the appellant has no right to remain in possession after the lessee, M/s. India Foils Ltd., had admitted by a resolution that the appellant has no right to remain in possession, we are not impressed with the arguments. At this stage, we are only concerned with his admitted possession of the demised premises. What rights would flow from a contract between him and his employer is a matter to be adjudicated in his application filed under Order 21, Rules 98 and 99, CPC. At this stage, it is premature to go into and record any finding in that behalf. learned Counsel for the first respondent also repeatedly sought to bring to our notice that on account of the orders of the Court Officer passed by the High Court the maintenance cost has been mounting up due to the delay in disposal of the proceedings in various courts. Even with regard to that, we are not impressed with the same. Since the letter of the law should strictly be adhered to, we find that highhanded action taken by respondents 1, 3 and 6 in having the appellant dispossessed without due process of law, cannot be overlooked nor condoned. The court cannot blink at their unlawful conduct to dispossess the appellant from the demised property and would say that the status quo be maintained. If the court gives acceptance to such high-handed action, there will be no respect for rule of law and unlawful elements would take hold of the due process of law for ransom and it would be a field day for anarchy. Due process of law would be put to ridicule in the estimate of the law-abiding citizens and rule of law would remain a mortuary." (emphasis added) 23. In the judgment reported in P. Kuppammal v. State of Tamil Nadu , wherein though there was an interim order for a limited period which was not subsequently extended, the learned judge taking note of the fact that the respondent was initially represented by the learned Government Pleader has held as under in para. 7 : 7... The above judgment relied upon by the Additional Government Pleader cannot be said to apply for this case squarely. Because in this case, when the interim order was granted from the beginning, the Government Pleader was asked to take notice and the interim orders were passed in the presence of the Additional Government Pleader. When the Government Pleader put on notice about the interim order, then it is deemed that the respondents also put on notice about the same especially in the absence of the plea that the respondents have not been communicated about the interim orders by the Government Pleader. But, however, on the date of removal of the obstruction, as contended by the Government Pleader, the interim order was not in force. But on this technical ground the respondents cannot be said to have committed the disobedience of the order of this Court.... 24. In the case on hand, when after an order of interim injunction was granted on May 24, 2005, in W.P.M.P. No. 19093 of 2005 in W. P. No. 17576 of 2005, learned standing counsel for the respondents entered appearance as could be seen from the subsequent order dated June 22, 2005, when the interim order came to be extended by one more week. In such circumstances, the officials of the Income-tax Department cannot be heard to say that the said interim order was not extended beyond June 29, 2005, and therefore, they were free to act in any manner they like. 25. In an unreported order of this Court dated April 28, 1989, in A. Nos. 1212, 1279 and 1280 of 1989 in C.S. No. 175 of 1989 (Seethalakshmi v. K. Murugesan), his Lordship Mr. Justice Srinivasan (as he the was), was pleased to order restoration of possession under similar circumstances. 26. In a Division Bench judgment of the Karnataka High Court reported in Goudappa Appaya Patil v. Shivari Bhimappa Pattar , the Division Bench has dealt with a consequence of pending proceedings under Articles 226 and 227 of the Constitution and has stated the legal position as under in para. 14 (page 76): 14. In many cases it may so happen that even when the petitioner succeeds in the writ petition, the alienation if any made during the pendency of the writ petition shall have to remain unaffected, the order passed under Articles 226 and 227 of the Constitution would be rendered infructuous, or ineffective. The parties would be deprived of the fruits of the litigation. In this connection, we must also remember the principle underlying the doctrine of lis pendens. The underlined principle is that no immovable property which is a subject-matter of the litigation can be transferred or dealt with by any party to the suit or proceeding to the detriment of the other party. In this case, Sri Revaji who sold the suit land to the plaintiff was a party to the writ petition. He could not have sold the suit land without the permission of the High Court as the right to the suit land was directly and specifically involved in the proceeding before the High Court in W. P. No. 2332/65. Thus, taking into consideration all the aspects, we are of the view that a proceeding instituted under Articles 226 and 227 of the Constitution which is not collusive and in which any right to immovable property is directly and specifically in question will be a proceeding attracting Section 52 of the Transfer of Property Act and as such the property concerned in the proceeding cannot be transferred or otherwise dealt with by any party to the proceeding so as to affect the rights of any other party thereto under an order which may be passed therein, except under the authority of the High Court and on such terms as it may impose. Point No. 1 is answered accordingly. 27. As far as the "principle of restitution" is concerned, as provided under Section 144 of the Civil Procedure Code, the hon'ble Supreme Court has held that-" on a reversal of a decree, the court in making the restitution is bound to restore the parties to the same position they were situated in prior to the order of such reversion". The following decisions of the hon'ble Supreme Court can be usefully referred to. (a) In Lal Bhagwant Singh v. Sri Kishen Das , the hon'ble Supreme Court held in para. 14 as under: 14. An order of restitution in the manner asked for in the circumstances of this case would be contrary to the principles of the doctrine of restitution which is that on the reversal of a judgment the law raises an obligation on the party to the record who received the benefit of the erroneous judgment to make restitution to the other party for what he had lost and that it is the duty of the court to enforce that obligation unless it is shown that restitution would be clearly contrary to the real justice of the case.... (b) In Binayak Swain v. Ramesh Chandra Panigrahi , the hon'ble Supreme Court has held in para. 4 as under: 4. The principle of the doctrine of restitution is that on the reversal of a decree, the law imposes an obligation on the party to the suit who received the benefit of the erroneous decree to make restitution to the other party for what he has lost. This obligation arises automatically on the reversal or modification of the decree and necessarily carries with it the right to restitution of all that has been done under the erroneous decree; and the court in making restitution is bound to restore the parties, so far as they can be restored, to the same position they were in at the time when the court by its erroneous action had displaced them from..... (emphasis added) (c) In Union Carbide Corporation v. Union of India , the hon'ble Supreme Court has held in para. 76 as under: 76. But, in the present case, Section 144, CPC, does not in terms apply. There is always an inherent jurisdiction to order restitution a fortiorari where a party has acted on the faith of an order of the court. A litigant should not go back with the impression that the judicial-process so operated as to weaken his position and whatever it did on the faith of the court's order operated to its disadvantage. It is the duty of the court to ensure that no litigant goes back with a feeling that he was prejudiced by an act which he did on the faith of the court's order. Both on principle and authority it becomes the duty of the court-as much moral as it is legal-to order refund and restitution of the amount to the UCC-if the settlement is set aside. (emphasis added) (d) In Kamataka Rare Earth v. Senior Geologist, Department of Mines and Geology , the hon'ble Supreme Court has held in para. 10 as under: 10. In South Eastern Coalfields Ltd. v. State of M.P. this court dealt with the effect on the rights of the parties who have acted bona fide, protected by interim orders of the court and incurred rights and obligations while the interim orders stood vacated or reversed at the end. The court referred to the doctrine of acrus curiae neminem gravabit and held that the doctrine was not confined in its application only to such acts of the court which were erroneous ; the doctrine is applicable to all such acts as to which it can be held that the court would not have so acted had it been correctly apprised of the facts and the law. It is the principle of restitution which is attracted. When on account of an act of the party, persuading the court to pass an order, which at the end is held as not sus-tainable, has resulted in one party gaining advantage which it would not have otherwise earned, or the other party has suffered an impoverishment which it would not have suffered but for the order of the court and the act of such party, then the successful party finally held entitled to a relief, assessable in terms of money at the end of the litigation, is entitled to be compensated in the same manner in which the parties would have been if the interim order of the court would not have been passed. The successful party can demand: (a) the delivery of benefit earned by the opposite party under the interim order of the court, or (b) to make restitution for what it has lost. 28. The principles set out in the decisions abovereferred to were applied by the Division Bench of this court in an unreported judgment dated August 10, 2005, in W.A.M.P. No. 2843 of 2003 in W.A.M.P. No. 2784 of 2005 in W.A. No. 1504 of 2005 and Contempt Appeal No. 18 of 2005. 29. In the light of the abovesaid legal position, the application in O.A. No. 3335 of 2005 stands allowed and while setting aside the order dated June 21, 2005, passed in O.A. No. 543 of 2005, the said application will stand restored and, consequently, the order of interim injunction granted therein will also stand restored. Consequently, the application for interim injunction granted in W.P.M.P. No. 19093 of 2005 shall also stand extended pending further orders. 30. Having regard to the restoration of the above orders of injunction as against the respondents as well as the Income-tax Department who are the respondents in W.P.M.P. No. 19093 of 2005 in W.P. No. 17576 of 2005 there will be a direction in W.P.M.P. No. 25189 of 2005 as well as in O. A. No. 3335 of 2005 to the respondents and the Income-tax Department to forthwith restore possession of the suit schedule theatre premises comprising land and building, viz., M/s. Goodluck 2-IN-1 Theatres at Old No. 18, 5th Cross Street, Lake Area, Nungambakkam, Chennai-600 034, with all the machinery and other accessories as it existed as on July 13, 2005, to the applicant-plaintiff forthwith pending further orders. 31. In order to ensure proper compliance with this order and to restore status quo ante as on July 13, 2005, Mr. M. Vijayaraghavan, No. 187, R. K. Mutt Road, Second Floor, Mandaveli, Chennai-28, the learned advocate is appointed as Advocate-Commissioner who shall take an inventory of all the machinery removed and now to be resorted to its original status as on July 13, 2005, and also ensure the restitution in favour of the applicant-plaintiff as ordered herein and submit a report to this court. In order to comply with the directions of this order if the Advocate-Commissioner needs the assistance or protection of police authorities, the same shall be extended to him on being requisitioned by him. 32. The applicant-plaintiff shall pay an initial remuneration of Rs. 25,000 to the Advocate-Commissioner for carrying out the abovesaid exercise apart from a sum of Rs. 5,000 to cover incidental expenses. The Advocate-Commissioner shall file his report into this court within one week from the date of restoration of possession in favour of the applicant-plaintiff. Inasmuch as the respondents are squarely responsible for the passing of this order of restitution, they are bound to reimburse all costs to be incurred by the applicant on this account. Therefore, though the applicant can incur all expenses including the fees payable to the Advocate-Commissioner in the first instance, it is ordered that the respondents should pay all such expenses and reimburse the same to the applicant after a final statement of account is filed in this court. Such reimbursement will be a precondition for the hearing of the Application in O.A. No. 543 of 2005 as well as the W. P. M. ?. No. 19093 of 2005 in W.P. No. 17576 of 2005. 33. O.A. No. 3335 of 2005 in C.S. No. 454 of 2005 and W.P.M.P. Nos. 19093 and 25189 of 2005 in W.P. No. 17576 of 2005 are ordered as above. 34. In view of the abovesaid orders passed in O.A. No. 3335 of 2005 and W. P. M. P. Nos. 19093 and 25189 of 2005, the other applications in O.A. Nos. 692, 2883 and 2884 of 2005 are closed as no specific orders are necessary. 35. The respondents are also directed to pay costs of Rs. 10,000 to the applicant-plaintiff. 36. For the purpose of implementing the order of this court, if the Commissioner faces any impediment such as the locking of the theatre, he is at liberty to break open the lock and execute this order.

Author: F I Kalifulla

G.V. Films Ltd. vs S. Priyadarshan And Anr. And Tax ... on 22 August, 2005

Madras High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 8044 of 2007(G) 1. GOPAKUMAR.P.K., NO.1373781 EX.SAPPER, ... Petitioner Vs 1. UNION OF INDIA, REPRESENTED BY ITS ... Respondent 2. THE C.D.A. (PENSION), ALLAHABAD. For Petitioner :SRI.P.B.SAHASRANAMAN For Respondent :SRI.M.R.JAYAPRASAD, CGC The Hon'ble MR. Justice S.SIRI JAGAN Dated :21/05/2009 O R D E R S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W. P (C) No. 8044 of 2007 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 21st May, 2009. J U D G M E N T The petitioner enrolled in the Indian Army on 1st December, 1980. During his tenure in the Army, he worked in high altitude areas and in extreme climates including in Leh-Ladakh, till he was posted to Ahmedabad in the year 1988. According to the petitioner, because of the stress and strain of Army service as also extreme climatic conditions where he was posted, he contracted some disease pursuant to which he was admitted in the military hospital at Ahmedabad in 1989. Later on, the disease was diagnosed as schizophrenia. The percentage of disability on account of the disease was also assessed as 45%. (Counsel for the petitioner points out that in the counter affidavit, the respondents admitted that the percentage of disability is 50%). Subsequently, on 30-12-1995, the petitioner was invalided out of service on account of the disease. The petitioner was paid pension taking into account the service element. The petitioner thereafter filed an application for re-computation of pension taking into account the disability element also. The same was rejected. The petitioner filed an appeal Ext. P1 before the appellate authority, which was also rejected by Ext. P2 order on the ground that the disability is not attributable to military service. The petitioner is challenging Ext. P2 order. 2. According to the petitioner, the disease contracted by the petitioner is attributable to military service. He submits that at the time of enrolment in the army, there was no physical or mental infirmity detected in him even after rigorous medical examination and during the early days of his service, he was posted in high altitude areas where the climatic conditions are extreme. Coupled with the stress and strain of work in border areas, the petitioner contracted the disease of schizophrenia, which resulted in his being invalided out  W.P.C. No. 8044/07 -: 2 :- of service. Therefore, according to the petitioner, the petitioner is entitled to pension taking into account the disability element also. It was after nine years of working in the Army that the disease in question was detected in the petitioner. Therefore, going by the dictum laid down by a Full Bench of this Court in Baby v. Union of India, 2003(3) KLT 362 (F.B), once it is shown that no disease was pre-existing at the time of enrolment in the Army, the onus of proving that the disease was not attributable to military service is squarely on the respondents. In so far as the respondents have not discharged that burden, the presumption would operate in favour of the petitioner and therefore the respondents are liable to be directed to pay to the petitioner pension taking into account his disability element also. 3. A statement and a counter affidavit have been filed by the respondents supporting the impugned order. According to them, the disease was detected while the petitioner was serving in the peace area and therefore it cannot be presumed that the disease was attributable to military service. 4. I have considered the rival contentions in detail. 5. In the Baby's decision, a Full Bench of this Court has held as follows in paragraphs 17 to 19. It is not disputed in the counter affidavit that at the time of enrolment in the Army no disease or defect whatsoever was detected on the petitioner even after rigorous physical and mental examination by expert medical officers. That being so, going by the dictum laid down in Baby's case the onus of proving that the disability is not attributable to military service is squarely on the respondents. In this case, the respondents have not even cared to produce any medical records in respect of the petitioner. All what they have produced is a communication Ext. R1(a) dated 1-4-1977 from the Senior Accounts Officer (Pensions), which is the original order rejecting the claim of the petitioner for pension taking into account the disability element  W.P.C. No. 8044/07 -: 4 :- also. They have not even cared to produce the medical opinion based on which the decision to reject the claim of the petitioner was taken. That being so, the respondents have not cared to discharge their onus of proving that the disability contracted by the petitioner is not attributable to military service. Therefore, I am of opinion that the petitioner is entitled to succeed in this writ petition. Accordingly, the writ petition is allowed. Exts. R1(a) and P2 orders are quashed. It is declared that the disease contracted by the petitioner and the consequent disability is attributable to military service. As such, the petitioner is entitled to pension taking into account the disability element also. Fresh orders in this regard shall be issued as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment. Consequent arrears of pension due to the petitioner shall also be disbursed within one month therefrom. S. Siri Jagan, Judge. Tds/ 

Gopakumar.P.K. vs Union Of India on 21 May, 2009

Kerala High Court

Court No. - 36 Case :- WRIT - C No. - 71224 of 2009 Petitioner :- R.R. Mishra Respondent :- State Of U.P. & Others Petitioner Counsel :- Hemant Kumar,P.K. Srivastava Respondent Counsel :- C.S.C.,Asgi (2009/2167) Hon'ble Prakash Krishna,J. Hon'ble Yogesh Chandra Gupta,J. We are of the opinion that the present writ petition is cognizable by the Bench hearing service matter. Put up day after tomorrow i.e. 7.1.2010 as fresh, if possible before the appropriate bench. Order Date :- 5.1.2010 Zh

R.R. Mishra vs State Of U.P. & Others on 5 January, 2010

Allahabad High Court

[Section 15] [Complete Act]

Central Government Act