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dsUnzh; lwpuk vk;ksx Central Information Commission Dyc Hkou] utnhd Mkd[kkuk/ Club Building, Near Post Office iqjkuk ts-,u-;w- ifjlj / Old J.N.U. Campus ubZ fnYyh ­ 110067 / New Delhi - 110067 (Ph:  011­2616 0943) ***** No.CIC/SM/C/2010/001027   Dated: 26 November 2010 Name of the Complainant : Shri Sardar Ahmad Asian Handicraft Corporation, Khamaria, S.R.N. Bhadohi, U.P. Name of the Public Authority : The Central Public Information Officer Allahabad Bank, Zonal Office, Taksal Theatre Building, Nadesar, Varanasi - 221 002. The First Appellate Authority Allahabad Bank, Takshal Theatre Building Nadesar  Varanasi­221 002. ORDER Background: Shri Sardar Ahmad of Bhadohi filed an RTI application with the CPIO of  Allahabad   Bank,   Varanasi   on   14   May   2010.     The   PIO   replied   to   his   RTI­ application   vide   his   letter   dated   14   June   2010.       Not   satisfied   with   the  information   supplied   by   the   CPIO,   the   Applicant   approached   the   Central  Information Commission in a complaint whereas he was required to approach  the first Appellate Authority in an appeal.   Decision: 2. On going through the complaint, it was observed that the Appellant did  not utilize the channel of first Appellate Authority. The Commission has decided  to   treat  this  application  as  a  first  appeal  and  to   remand  this  appeal  to   first  Appellate Authority, Allahabad Bank, Varanasi, who is directed to dispose of the  appeal   of   Shri   Sardar  Ahmad  within   twenty   working   days  from  the   date   of  receipt   of   this   decision,   under   intimation   to   Shri   Vijay   Bhalla,   Assistant  Registrar, Central Information Commission. If the Complainant is not satisfied  with the orders of the first  Appellate Authority, he/she  will be free to move a  second appeal before us as per Sec 19 (3) of the Right to Information (RTI) Act. 3. The Commission ordered accordingly. (Satyananda Mishra) Information Commissioner Authenticated true copy: (Vijay Bhalla) Assistant Registrar Cc: 1.   Shri Sardar Ahmad, Asian Handicraft Corporation, Khamaria, S.R.N. Bhadohi, U.P. 2.   The Central Public Information Officer, Allahabad Bank, Zonal Office, Taksal Theatre  Building, Nadesar, Varanasi - 221 002. 3.   The First Appellate Authority, Allahabad Bank, Takshal Theatre Building Nadesar  Varanasi­221 002.

Shri.Sardar Ahmad vs Allahabad Bank on 26 November, 2010

Central Information Commission

Court No. - 43 Case :- CRIMINAL APPEAL No. - 8201 of 2009 Petitioner :- Kesham Respondent :- State Of U.P. Petitioner Counsel :- K.D. Tiwari,R.P. Tiwari Respondent Counsel :- Govt. Advocate Hon'ble Vinod Prasad,J. Heard learned counsel for the appellant and the learned AGA. Admit Summon the trial Court record within three weeks. Meanwhile, operation of the impugned order dated 5.12.2009 passed by Additional Sessions Judge/Fast Track Court No. 1, Banda in criminal misc. case no. 08/XI/2009, Special Sessions Trial No. 60/2004 (State Vs. Madho Singh and others), under Section 446 Cr.P.C., P.S. Kotwali, District Banda shall remain stayed on the condition that the appellant shall deposit Rs. 5,000/- within one month from today during which no coercive measure shall be taken against the appellant. Order Date :- 4.1.2010 AKG/-

Kesham vs State Of U.P. on 4 January, 2010

Allahabad High Court

[Section 71] [Complete Act]

Central Government Act

IN THE HIGH COURT OF KERALA AT ERNAKULAM Mat.Appeal.No. 385 of 2009() 1. ARAVINDAN P.S., ... Petitioner Vs 1. SOBHA D/O.GOPINATHA PILLAI, ... Respondent For Petitioner :SRI.M.R.ANANDAKUTTAN For Respondent : No Appearance The Hon'ble MR. Justice R.BASANT The Hon'ble MRS. Justice M.C.HARI RANI Dated :09/06/2009 O R D E R R.BASANT & M.C.HARI RANI, JJ. ------------------------------------ Mat.Appeal No.385 of 2009 ------------------------------------- Dated this the 9th day of June, 2009 JUDGMENT BASANT, J. Appellant is the father of a minor child and the respondent herein is the mother of the child. The mother has filed an application for custody of the child. The child is now in the custody of the father. By the impugned order dated 20.04.09, an interim direction was issued that the child be handed over to the custody of the mother for a period of one month from 27.04.2009. According to the petitioner the child was handed over on 27.04.09. The child must have been returned to the father after a period of one month, ie. by 27.05.09. The child has not been handed over. The petitioner has rushed to this Court with this Mat.Appeal now. 2. Called upon to explain why the appellant has not moved the Family Court and sought relief from the Family Court to enforce the impugned direction, the learned counsel for the appellant submits that the appellant has filed an application before the Family Court to take up the matter. But the matter has not been taken up by the Family Court so far. The learned counsel for the appellant is unable to furnish details of the  Mat.Appeal No.385 of 2009 2 petition said to have been filed by the appellant before the Family Court. 3. We find that the grievance of the appellant is justified. The order makes it clear that the mother can keep the child for a period of one month from 27.04.2009. She is therefore bound to return the child to the father by 27.05.09. If she has not done the same, the appellant is justified in moving the Family Court for enforcement of his right to get return of the child. If any such application has been filed, needless to say, the learned Judge of the Family Court has to take up the same for consideration and pass emergent orders on merits. With the above observations, this Mat.Appeal is dismissed. 4. Hand over a copy of this judgment to the learned counsel for the appellant, who shall produce the same before the learned Judge of the Family Court forthwith. The learned Judge shall take appropriate action on that application, if any pending or application if any to be filed at the earliest. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) rtr/-

Aravindan P.S vs Sobha on 9 June, 2009

Kerala High Court

JUDGMENT 1. The facts in our opinion show that the plaintiff's legal cause of action was for trespass in the defendant's having wrongfully caused the plaintiff's house to be searched. The facts would not support an action for a malicious prosecution, inasmuch as the information given was only to the police, and the steps taken were only in a police investigation preparatory to a prosecution before a Magistrate. So regarding the suit as one for damages for trespass, it is not exempted from the cognizance of a Court of Small Causes, and as the damages claimed do not exceed Rs. 500, no second appeal lies under Section 586 of the Code of Civil Procedure. This appeal is, therefore, rejected with costs.

Trilochana Bakshi vs Brojo Patro on 17 February, 1902

Madras High Court

[Complete Act]

Central Government Act

IN THE HIGH COURT OF JUDICATURE AT PATNA CR. APP (SJ) No.495 of 2011 SATO RAM & SATENDRA RAM Versus THE STATE OF BIHAR ----------- Kanth ( Dharnidhar Jha, J.) 2. 29.4.2011 This appeal shall be heard. Call for the lower court records. As regards the prayer for bail of the appellant, the same shall be considered after receipt of the lower court records.

Sato Ram &Amp; Satendra Ram vs The State Of Bihar on 29 April, 2011

Patna High Court - Orders

IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1724 of 2011 Saryu Choudhary Versus The State Of Bihar & Ors ----------- RPS (Ajay Kumar Tripathi,J.) 2 28.6.2011 Petitioner had moved the Jharkhand High Court for payment of his retiral dues etc which was rejected by learned Single Judge. Petitioner lost his appeal before the Jharkhand High Court. If the petitioner was aggrieved by such decision the remedy for him would lie before the Hon'ble Supreme Court and not file a fresh writ application before the Patna High Court merely because the Division Bench observed that the petitioner will get his retiral dues from the State of Bihar on the interpretation that he was allocated to Bihar cadre but admittedly the petitioner never joined here and continued to work in the State of Jharkhand. In view of above it is an ill advised petition which does not require any adjudication. Let the petitioner seek remedy under the law against the order of Jharkhand High Court. This writ application is dismissed with the above liberty.

Saryu Choudhary vs The State Of Bihar & Ors on 28 June, 2011

Patna High Court - Orders

Court No. - 40 Case :- FIRST APPEAL FROM ORDER No. - 1968 of 2010 Petitioner :- Pooran Singh And Another Respondent :- Smt. Shanti Devi And Others Petitioner Counsel :- Santosh Kumar Singh Respondent Counsel :- Dr. A.K. Sharma Hon'ble Satya Poot Mehrotra,J. Hon'ble Shvam Shankar Tiwari.J. As prayed on behalf of Sri Santosh Kumar Singh, learned counsel for the appellants, put up as fresh on 30.8.2010. Order Date :- 2.8.2010 Ak/

Pooran Singh And Another vs Smt. Shanti Devi And Others on 2 August, 2010

Allahabad High Court

JUDGMENT A.N. Divecha, J. 1. The common decision rendered by the Gujarat Revenue Tribunal at Ahmedabad ('the Tribunal' for convenience) on 7th April 1980 in Revision Application Nos. TEN. B.A. 888 and 902 both of 1979 is under challenge in this petition under Article 226 of the Constitution of India. Thereby the Tribunal upset the order passed by the Mamlatdar and Agricultural Lands Tribunal (No. 2) at Kalol ('the First Authority' for convenience) on 16th August 1977 in Tenancy Case No. Nardipur-75 of 1975 as affirmed in appeal by the order passed by the Deputy Collector (Land Reforms) at Mehsana (the Appellate Authority for convenience) on 30th June 1979 in Tenancy Appeal No. 220. By his aforesaid order, the First Authority accepted the application made by the present petitioner for restoration of possession of two parcels of land bearing survey Nos. 111 and 115 admeasuring 1 acre 5 gunthas and 2 acres 13 gunthas respectively situated at village Nardipur, taluka Kalol, district Mehsana (the disputed lands for convenience) on the ground that the disputed lands were not used for the purpose for which the possession thereof was taken by the landlord under Section 32T of the Bombay Tenancy and Agricultural Lands Act, 1948 ('the Tenancy Act' for brief). 2. The facts giving rise to this petition move in a narrow compass. The petitioner is the son of the Vithalbhai Harjivanbhai who was the original tenant of the disputed lands. I shall refer to the deceased father of the petitioner as the original tenant for the sake of convenience. The husband of original respondent No. 1 was the owner of the disputed lands. I shall refer to him as the landlord for convenience. It appears that the landlord was a certified landlord. He obtained possession of the disputed lands in accordance with Section 32T of the Tenancy Act. It is obvious that the landlord obtained possession of the disputed lands for his personal cultivation. It appears that during his lifetime he agreed to sell the disputed lands to respondent No. 2 herein. A copy of the agreement executed between the parties on 8th January 1967 is at Annexure-D to this petition. It appears that the landlord thereafter breathed his last leaving behind him original respondent No. 1 as his heir and legal representative. I shall refer to original respondent No. 1 as the widow for the sake of convenience. As the heir and legal representative of the deceased landlord, she agreed to abide by the transaction between her deceased husband and respondent No. 2. She executed the necessary agreement on 20th April 1968. Its copy is at Annexure-E to this petition. It appears that the present petitioner thereupon moved the First Authority with an application under Section 37 of the Tenancy Act some time in 1972. It came to be registered as Tenancy Case No. 251 of 1972. It came to be rejected for default of appearance on the part of the present petitioner on 28th September 1972. That aggrieved the present petitioner and he, therefore, carried the matter in appeal before the Appellate Authority. The Appellate Authority dismissed the aforesaid appeal as time-barred by his order passed on 8th January 1974. The present petitioner thereupon invoked the revisional jurisdiction of the Tribunal by means of Revision Application No. TEN. B.A. 141 of 1974. By its decision rendered on 30th April 1974 in the aforesaid revisional application, the Tribunal rejected it. The Tribunal, however, observed in its decision that the present petitioner could make a fresh application under Section 37 read with Section 39 of the Tenancy Act and the First Authority should decide the same on merits if it was in time and according to law. It appears that, pursuant to the aforesaid direction issued by the Tribunal in its decision rendered on 30th April 1974 in Revision Application No. TEN. B.A. 141 of 1974, the present petitioner made a fresh application on 20th May 1974 before the First Authority under Section 37 of the Tenancy Act. It came to be registered as Tenancy Case No. Nardipur-75 of 1975. Since the disputed lands were in possession of respondent No. 2 herein, he was also made a party to the aforesaid proceeding under Section 37 of the Tenancy Act. After hearing the parties, by his order passed on 16th August 1977 in the aforesaid proceeding, the First Authority came to the conclusion that the landlord, after obtaining possession of the disputed lands under Section 32T of the Tenancy Act, did not use the lands for the purpose for which the possession thereof was taken from the original tenant after terminating his tenancy. Its copy is at Annexure-A to this petition. That aggreived both the widow and respondent No. 2 herein. Both of them carried the matter in appeal before the Appellate Authority. The appeal of respondent No. 2 came to be registered as Tenancy Appeal No. 220 and that of the widow as Tenancy Appeal No. 220A. After hearing the parties, by his common order passed on 30th June 1979 in the aforesaid appeals, the Appellate Authority dismissed both the appeals. Its copy is at Annexure-B to this petition. That again aggrieved both the appellants. Both of them, therefore, invoked the revisional jurisdiction of the Tribunal by means of their Revision Application Nos. TEN. B.A. 902 and 888 respectively both of 1979. By its common decision rendered on 7th April 1980 in the aforesaid two revisional applications, the Tribunal accepted them and set aside the order passed convenience. It appears al Annexure-A to this petition as affirmed in appeal by the appellate order at Annexure-B to this petition. Its copy is at Annexure-C to this petition. That obviously aggrieved the present petitioner. He has, therefore, moved this Court by means of this petition under Article 226 of the Constitution of India for questioning the correctness of the decision at Annexure-C to this petition. 3. The Tribunal has interfered with the order at Annexure-A to this petition as affirmed in appeal by the appellate order at Annexure-B to this petition on two grounds. In the first place, the Tribunal found that the present petitioner's application was not maintainable as the right of the deceased tenant was not inheritable. The other ground was that the landlord or in any case the widow had not transferred the disputed lands in favour of respondent No. 2 herein. 4. So far as the first ground is concerned, with respect, the Tribunal has not examined the case from its proper perspective. Since the disputed lands were in possession of respondent No. 2 herein whether by way of transfer or otherwise and since he was made a party to the proceeding, the application could be said to be under Section 37(1A) of the Tenancy Act and not under Section 37 read with Section 39 thereof. Under Section 3 7(1 A) of the Tenancy Act, the First Authority has been empowered to take action suo motu or on an application made by any interested person. The petitioner as the son of the original tenant was certainly an interested person. In that view of the matter, it was not necessary to examine the case in the light of Section 40 of the Tenancy Act. The impugned decision at Annexure-C to this petition, qua the first ground, cannot be sustained in law. 5. The Tribunal has proceeded on the footing that the Banakhat would create no interest in favour of the Banakhat-holder in view of the relevant provisions contained in Section 54 of the Transfer of Property Act, 1882 (the T.P. Act for brief). The question is whether or not the word "transfer" as used in Section 37(1 A) of the Tenancy Act has its connotation with reference to the T.P. Act. 6. In order to decide the controversies between the parties in that regard, it would be quite proper to look at the relevant provisions contained in Section 37 of the Tenancy Act. They read: 37. (1) If after the landlord takes possession of the land after the termination of the tenancy under Section 31 or 32T he fails to use it for any of the purposes specified in the notice given under Section 31 or 32T within one year from the date on which he took possession or ceases to use it at any time for any of the aforesaid purposes within twelve years from the date on which he took such possession, the landlord shall forthwith restore possession of the land to the tenant whose tenancy was terminated by him, unless he has obtained from the tenant his refusal in writing to accept the tenancy on the same terms and conditions or has offered in writing to give possession of the land to the tenant on the same terms and conditions and the tenant has failed to accept the offer within three months of the receipt thereof. (1 A) Notwithstanding anything contained in Sub-section (1), where in respect of any land the possession of which has been taken by the landlord after the termination of the tenancy under Section 31 or 32T, the Mamlatdar Suo motu or on an application from any person interested in such land has reason to believe that the landlord has failed to use the land for any of the purposes specified in the notice given to the tenant under Section 31 or 32T, within one year from the date on which he took possession of the land or ceases or has ceased to use it for the purpose specified in the notice, at any time within twelve years from the date on which he took possession, or has transferred the land to any other person and such transfer is inconsistent with the ground on which the tenancy of the land was terminated, the Mamlatdar shall, after issuing a notice to the landlord or as the case may be, to the landlord and the transferee both, in the prescribed form to show cause why the landlord should not be disentitled to retain possession of the land, or, as the case may be, why the transfer should not be declared invalid and after holding such inquiry as he deems fit, declare that the landlord shall not be entitled to retain possession of the land or, as the case may be, that the transfer of the land shall be invalid and that the transferee shall be deemed to be unauthorisedly occupying the land. (Emphasis supplied) 7. A bare perusal of the aforesaid provisions would go to show that the Legislature intended action against the landlord who failed to use the land for the purpose for which the possession was taken by him from that tenant under Section 31 or 32T of the Tenancy Act after terminating the tenancy. Under Section 37(1) thereof, the tenant has been enabled to move the concerned authority for restoration of possession if the landlord has not used the land for the purpose for which he has taken its possession from the tenant under Section 31 or 32T thereof after terminating the tenancy. The tenant will be able to do so provided possession of the land in question is with the landlord. If he has parted with its possession, the tenant will not be able to avail of the remedy under Section 37(1) of the Act. In order to ameliorate the lot of the tenant in such circumstances, the Legislature in its wisdom has enacted Sub-section (1 A) of Section 37. That statutory provision has come to be brought on the statute book by means of Gujarat Act No. 5 of 1973. The dominant consideration was to ameliorate the lot of the tenant and to see that the object of the Tenancy Act is not frustrated. It cannot be gainsaid that Section 31 or 32T thereof empowers the landlord to obtain possession of the tenanted land for certain specific purpose. If he does not put into practice that purpose for which he obtains possession thereunder, the legislature in its wisdom has thought that he has no right to retain possession of the land which he has taken under Section 31 or 32T thereof after terminating the tenancy. As pointed out hereinabove, after obtaining possession of the land under Section 31 or 32T thereof, a scheming and shrewd landlord might transfer it in favour of a third party so as to deprive the tenant of his right to obtain its possession back from the landlord under Section 37(1) of the Tenancy Act. To prevent such scheming and shrewd landlord to take advantage of his own wrong and thereby escaping the clutches of the law, the legislature in its wisdom has brought on the statute book Sub-section (1A) of Section 37 by Gujarat Act No. 5 of 1973. The word "transfer" occurring therein has to be construed in the light of this avowed object behind introducing the aforesaid statutory provision by Gujarat Act No. 5 of 1973. 8. It is true "transfer" strictly speaking will have to be in accordance with the relevant provisions contained in the T.P. Act. However, since the legislature in its wisdom has thought of frustrating the possible design on the part of a scheming and shrewd landlord, the word "transfer" occurring in Section 32(1A) cannot be interpreted in that restricted sense. It will have to be interpreted in a broader sense including all possible ways of transferring possession of the land in question by the landlord in favour of any other person after obtaining its possession from the tenant under Section 31 or 32T of the Tenancy Act after terminating the tenancy. A parcel of land given by way of an irrevocable licence might not be a transfer within the meaning of the T.P. Act. It will have, however, to be treated as a transfer for the purposes of Section 37(1A) of the Tenancy Act. Similarly, handing over possession of the land under a Banakhat will not be a transfer within the meaning of the T.P. Act but it will have to be treated as such for the purposes of Section 37(1A) of the Tenancy Act. The emphasised portion in the aforesaid statutory provision reproduced earlier to the effect "... has transferred the land to any other person and such transfer is inconsistent with the ground on which the tenancy of the land was terminated...." would also go to show that the word "transfer" has to be interpreted in the sense broader than its accepted meaning under the T.P. Act. Parting with possession by the landlord after obtaining possession under Section 31 or 32T of the Tenancy Act after terminating the tenancy would certainly be inconsistent with the ground on which the tenancy could be said to have been terminated. In that view of the matter, there is no escape from the conclusion that the handing over of possession of the disputed lands under the agreement at Annexures-D & E to this petition would amount to transfer for the purposes of the aforesaid statutory provision. Any other interpretation of the word "transfer" occurring in the aforesaid statutory provision contained in Section 37(1A) of the Tenancy Act would run counter to the avowed object behind its introduction in the statute book by Gujarat Act No. 5 of 1973. 9. It may be mentioned that the execution of the documents at Annexures-D and E to this petition by the concerned parties is not in dispute. Though these transactions may be styled as an agreement to sell the disputed lands, these transactions would be covered by Section 37(1 A) of the Tenancy Act. The contrary view expressed by the Tribunal in its decision at Annexure-C to this petition cannot, therefore, be sustained in law. 10. In view of my aforesaid discussion, the decision at Annexure-C to this petition cannot be sustained in law and it has to be quashed and set aside. 11. The question might arise as to what would be the consequences of setting aside the decision at Annexure-C to this petition. It is difficult to agree with Shri R.A. Patel for the petitioners that the order at Annexure-A to this petition as affirmed in appeal by the appellate order at Annexure-B to this petition should be restored for the simple reason that the case is not governed by Section 37(1) of the Act but is found governed by Section 37(1 A) thereof. Section 39 of the Tenancy Act will be applicable if the case is governed by Section 37(1) of the Tenancy Act. So far as the action under Section 37(1 A) is concerned, consequences are provided in Sub-Sections (5AA), (5AB), (5B), (5C) and (5D) of Section 37 thereof. In that view of the matter, the disputed lands would stand vested in the State Government free from all emcumbrances and the same should be disposed of in accordance with Sub-section (5AB) thereof. The matter will have, therefore, to be remanded to respondent No. 3 for disposal of the disputed lands according to law as provided in Section 37(5AB) of the Tenancy Act. 12. In the result, this petition is accepted to the aforesaid extent. 13. The impugned common decision rendered by the Gujarat Revenue Tribunal at Ahmedabad on 7th April 1980 in Revision Application Nos. TEN. B.A. 888 and 902 both of 1979 is quashed and set aside. The order passed by the Mamlatdar and Agricultural Lands Tribunal ai Annexure-A to this petition as affirmed in appeal by the order passed by the Deputy Collector at Annexure-B to this petition is, however, not restored. The matter is remanded to the State Government (respondent No. 3 herein) for disposal of the disputed lands according to law as expeditiously as possible preferably before 30th June 1994 in the light of this judgment of mine. Rule is accordingly made absolute to the aforesaid extent with no order as to costs.

Author: A Divecha

Patel Umedbhai Vithalbhai vs Pandit Chanchalben Jugalrai And ... on 7 April, 1994

Gujarat High Court

> Title: Need to restore the quota of foodgrains under P.D.S. to Kerala. DR. K.S. MANOJ : Mr. Speaker, Sir, I am highly obliged to you for giving me this opportunity.            Rice is the staple food of Kerala.  But, unfortunately, only 15 per cent of the rice is cultivated, produced in Kerala.  Kerala is more than 85 per cent deficient in production of food-grains and the requirements are met by Public Distribution System (PDS).  PDS in Kerala is an effective instrument in checking the price of food-grains and other essential commodities.            Kerala has a population of 3.5 crore.  There are about 70.25 lakh ration card-holders in the State with around 50 lakh APL card-holders.  The Central allotment of APL rice was 1,13,420 MT per month till March 2007. This has been reduced to merely 17,056 MT tonnes from April, 2008 onwards leaving a shortage of 96,364 MT, that is about 85 per cent.            Sir, the present allotment of foodgrains is only 29,000 MT.  The total requirement of food-grains for APL card-holders alone is 1,73,005 MT.… (Interruptions) MR. SPEAKER: This is not a debate, Dr. Manoj. Yes, please.  DR. K.S. MANOJ : I would request the hon. Food and Agriculture Minister here to restore the PDS allotment quota of Kerala, rice quota as well as wheat quota of Kerala,  so that during the times of inflation and price rise it will be very beneficial to the people of Kerala.  Nowadays more and more people are approaching the Public Distribution System.… (Interruptions) MR. SPEAKER: Kindly conclude. DR. K.S. MANOJ : So, I urge upon the hon. Minister to look into the matter and restore the PDS quota at the earliest.  Thank you.   SHRIMATI  P. SATHEEDEVI (BADAGARA): Mr. Speaker, Sir, I would like to associate myself with the issue raised by Dr. Manoj.   SHRIMATI C.S. SUJATHA : Sir, I would also like to associate myself with Dr. Manoj.   SHRI T.K. HAMZA (MANJERI): Sir, I would also like to associate with this issue. MR. SPEAKER: Hon. Members from Kerala are associating with him on this issue.[r23] 

Need To Restore The Quota Of Foodgrains Under P.D.S. To Kerala. on 15 December, 2008

Lok Sabha Debates

IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.37421 of 2010 Satyanarayan Mahto Versus The Union Of India ----------- Manish/- ( Shailesh Kumar Sinha,J.) 3 05.07.2011 As prayed for on the ground of illness of the counsel for the petitioner, with consent of the other side, put up this matter after one week retaining its position.

Satyanarayan Mahto vs The Union Of India Thru. Cbi. on 5 July, 2011

Patna High Court - Orders

IN THE PUNJAB & HARYANA HIGH COURT AT CHANDIGARH CIVIL WRIT PETITION 4782 of 2005 DATE OF DECISION :July 21 ,2008 Narinder Dev Singla ....Petitioner Versus Regional Provident Fund Commissioner & another ....RespondentsCORAM : HON'BLE MR.JUSTICE HEMANT GUPTA HON'BLE MR.JUSTICE AJAY TEWARI Present: Mr.O.P.Batra, Advocate, for the petitioner Mr.Rajiv Sharma, Advocate, for respondent No.1 Ms.Geeta Singhwal, Advocate, for respondent No.3 AJAY TEWARI , J The short point which arises for decision in the present case is whether the pension of the petitioner could be reduced without affording him an opportunity of hearing. The petitioner joined service as a Field Officer with the Haryana State Co-operative Supply and Marketing Federation Limited- respondent No.3 on 06-04-1976 and retired on super annuation on 30-04- 2004. Vide order dated 28-05-2004/04-06-2004, respondent No.1 fixed the pension of the petitioner at Rs.1125/-per month. Subsequently, by order dated 22-02-2005, the pension of the petitioner was reduced to Rs.979/-and an order of recovery of Rs.1378/-(upto 31-01-2005) was issued which has been challenged by way of present petition. In reply, it has been urged that the services of the petitioner were terminated and later he was reinstated and for that period, he remained CWP 4782 of 2005 --2-- out of service . No wages had been paid to him and, thus, he made no contribution towards Employees Contributory Provident Fund. Be that as it may, it is not disputed that no notice or opportunity of hearing was granted to the petitioner before the impugned order was passed reducing his pension and directing recovery . The impugned order is, thus, liable to be set aside on this short ground. Consequently, the impugned order is set aside while granting opportunity to the respondents to pass a fresh order after issuing notice to the petitioner and granting him an opportunity of hearing. Disposed of in the above terms. Sd/- [Ajay Tewari] Judge sd/- [Hemant Gupta] Judge July 21,2008 *MandeepKaur*

Narinder Dev Singla vs Regional Provident Fund ... on 21 July, 2008

Punjab-Haryana High Court

Court No. - 18 Case :- U/S 482/378/407 No. - 3072 of 2010 Petitioner :- Kamla Kant Pandey Respondent :- State Of U.P. And Another Petitioner Counsel :- Mohd. Khalid Respondent Counsel :- Govt. Advocate Hon'ble S.N.H. Zaidi,J. Heard learned counsel for the petitioner and the learned A.G.A. who has accepted notice on behalf of the State. Issue notice to opposite party no. 2 returnable at an early date. Counter affidavit may be filed within four weeks. Rejoinder affidavit, if any, may be filed within two weeks thereafter. List after expiry of the aforesaid period. Order Date :- 5.8.2010 Rizvi

Kamla Kant Pandey vs State Of U.P. And Another on 5 August, 2010

Allahabad High Court

Gujarat High Court Case Information System Print SCR.A/80/2006 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION No. 80 of 2006 ========================================================= VIPUL CHIMANLAL SHAH - Applicant(s) Versus STATE OF GUJARAT - Respondent(s) ========================================================= Appearance : MS ML SONEJI for Applicant(s) : 1, PUBLIC PROSECUTOR for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 08/01/2007 ORAL ORDER Even in the third round, Mr Soneji, learned advocate appearing for the petitioner is not present. In that view of the matter, this Court has no other option but to dismiss the matter. This petition is accordingly dismissed for default. Notice is discharged. (K.S. JHAVERI, J.) Divya//     Top

Author: Ks Jhaveri,&Nbsp;

Vipul vs State on 4 February, 2011

Gujarat High Court

Court No. - 54 Case :- APPLICATION U/S 482 No. - 9113 of 2010 Petitioner :- Tarun @ Tara Bhatt And Others Respondent :- State Of U.P. And Another Petitioner Counsel :- Deependra Singh Respondent Counsel :- Govt. Advocate Hon'ble Ravindra Singh,J. Heard learned counsel for the applicants and learned A.G.A. It is contended by the learned counsel for the applicants that this case may be sent to Mediation Centre for the purpose of settlement between the parties for which the applicants are ready to deposit the cost. Considering the submission made by the learned counsel for the applicants, it is directed that applicants shall deposit Rs. 10,000/- within two weeks from today in the account head of Registrar General, Mediation and Conciliation Centre, Allahabad High Court, Allahabad. In case, the aforesaid amount is deposited the notice shall be issued to O.P. No.2 returnable within a period of four weeks. The three fourth of the above mentioned deposited amount shall be paid to O.P. No. 2 as expenses. This case shall be sent to Mediation Centre for further proceedings. After proceedings of the Mediation Centre, list this case before this Court on 6.7.2010.Till then no coercive step shall be taken against the applicants in Complaint Case No. 1715 of 2009 under sections 498-A I.P.C. and section ¾ of D.P. Act P.S. Shikohabad district Firozabad pending in the court of Judicial Magistrate Ist Class Firozabad in case the receipt of the aforesaid deposited amount is filed before the court concerned. List on 6.7.2010 for orders. Order Date :- 2.4.2010 N.A.

Tarun @ Tara Bhatt And Others vs State Of U.P. And Another on 2 April, 2010

Allahabad High Court

C/CA/11632/2013 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL APPLICATION (FOR STAY) NO. 11632 of 2013 In SPECIAL CIVIL APPLICATION NO. 11924 of 2013 With CIVIL APPLICATION NO. 11633 of 2013 In SPECIAL CIVIL APPLICATION NO. 11921 of 2013 With CIVIL APPLICATION NO. 11634 of 2013 In SPECIAL CIVIL APPLICATION NO. 11918 of 2013 With CIVIL APPLICATION NO. 11635 of 2013 In SPECIAL CIVIL APPLICATION NO. 11919 of 2013 With CIVIL APPLICATION NO. 11636 of 2013 In SPECIAL CIVIL APPLICATION NO. 11928 of 2013 With SPECIAL CIVIL APPLICATION NO. 11924 of 2013 ================================================================ IYUSHBHAI ISHVARBHAI PATEL....Applicant(s) Versus STATE OF GUJARAT & 3....Respondent(s) ================================================================ Appearance: MR VAIBHAV N SHETH, ADVOCATE for the Applicant(s) No. 1 MR.RAKESH PATEL, ASSISTANT GOVERNMENT PLEADER for the Respondent(s) No. 1 RULE SERVED BY DS for the Respondent(s) No. 1 - 4 ================================================================ CORAM: HONOURABLE MR.JUSTICE K.M.THAKER Date : 03/12/2013 Page 1 of 2 HC-NIC Page 1 of 2 Created On Wed Sep 21 04:41:57 IST 2016 C/CA/11632/2013 ORDER ORAL ORDER 1. Today, Mr.Sheth, learned advocate for the applicant submitted that despite the order dated 19.11.2013, the directions have not been complied with until now. 2. Since the main petitions are already admitted and are likely to be placed for final hearing before this High Court, below mentioned order is passed:- RULE. To be heard with Special Civil Application Nos.11924 of 2013, 11921 of 2013, 11918 of 2013, 11919 of 2013, 11928 of 2013. 3. Mr.Dharmesh Devnani, learned Assistant Government Pleader for the respondent-State has waived service of process of RULE for the respondent-State. 4. The Office is directed to place the Civil Applications in main petitions for final hearing before the Hon'ble Court as per the roster. (K.M.THAKER, J.) Girish Page 2 of 2 HC-NIC Page 2 of 2 Created On Wed Sep 21 04:41:57 IST 2016

Iyushbhai Ishvarbhai Patel vs State Of Gujarat & 3 on 3 December, 2013

Gujarat High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.34932 of 2010 ALOK PRIYADARSHI Versus STATE OF BIHAR ----- Vikash (Mandhata Singh, J.) 04. 22.02.2011 Heard learned counsel for the petitioner and the State. Petitioner is husband, is alleged for causing cruelty upon the complainant for demand of dowry. Submission of the learned counsel for petitioner is that making some misrepresentation married could be solemnized, otherwise complainant was suffering from mental disorder and was aged to this petitioner, taking which into consideration a matrimonial case for divorce was filed on 24.11.2009, making a defence only this case is lodged with false allegation. 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 the Chief Judicial Magistrate, Chapra in connection with Complaint Case No. 123 of 2010, subject to the conditions as laid down under section 438(2) of the Cr. P. C.

Alok Priyadarshi vs State Of Bihar on 22 February, 2011

Patna High Court - Orders

IN THE HIGH COURT OF KERALA AT ERNAKULAM Crl.MC.No. 535 of 2009() 1. LEANS EXPORT, THIRUVANANTHAPURAM, ... Petitioner Vs 1. STATE OF KERALA, REP. BY THE PUBLIC ... Respondent 2. M/S.JOSE REFRIGERATION KADUTHURUTHY For Petitioner :SRI.P.BABU KUMAR For Respondent : No Appearance The Hon'ble MR. Justice R.BASANT Dated :04/02/2009 O R D E R R.BASANT, J ------------------------------------ Crl.M.C. No.535 of 2009 ------------------------------------- Dated this the 4th day of February, 2009 ORDER Petitioner faces indictment in a prosecution under Section 138 of the Negotiable Instruments Act. Cognizance was taken as early as in 2003 and the matter is now pending before the learned Judicial Magistrate of the First Class, Vaikom as S.T.No.452 of 2008. 2. According to the petitioner, he is already on bail. He was represented by a counsel. On some dates of posting the petitioner could not appear and he applied for condonation of his absence. The applications filed through his counsel were rejected and non bailable warrants were issued against the petitioner. Such processes are chasing the petitioner. The petitioner apprehends imminent arrest. 3. According to the petitioner on all dates of posting, the petitioner was represented by his counsel and applications were filed to excuse his absence. The bail bond has not been cancelled also. In these circumstances the petitioner prays that he may be permitted to participate in the proceedings through his counsel. 4. It is for the petitioner, if the above submissions are correct, to appear before the learned Magistrate and make appropriate applications to permit him to continue on bail and  Crl.M.C. No.535 of 2009 2 allow him to be represented by his counsel. If the bail bond has not been cancelled and the counsel has been appearing all along for the petitioner, I find no reason why the learned Magistrate should not consider such application on merits, in accordance with law and expeditiously. The petitioner can certainly claim the advantage of the dicta in Jain Babu v. Joseph [2008(4) KLT 16] and Rohit S.Ved v. State of Kerala [2008 (4) KLT 671]. Such applications to be filed by the petitioner must be considered by the learned Magistrate and appropriate orders passed. 5. This Crl.M.C is, in these circumstances, dismissed with the above observations. In as much as it is represented that the petitioner has always been represented by his counsel, there shall be a direction that coercive processes issued against the petitioner shall not be executed till 16.02.09. On or before that date the petitioner can appear through his counsel and make the necessary applications. Needless to say, such applications must be considered by the learned Magistrate on merits, in accordance with law and expeditiously. 6. Hand over a copy of this order to the learned counsel for the petitioner. (R.BASANT, JUDGE) rtr/-

Leans Export vs State Of Kerala on 4 February, 2009

Kerala High Court

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Dharmendra Kumar vs Awadh Naresh Sharma, Sachiv ... on 26 August, 2010

Allahabad High Court

Gujarat High Court Case Information System Print CA/9193/2010 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL APPLICATION - FOR CONDONATION OF DELAY No. 9193 of 2010 In LETTERS PATENT APPEAL (STAMP NUMBER) No. 1310 of 2010 In SPECIAL CIVIL APPLICATION No. 10483 of 2009 ============================================= RABARI GOGANBHAI BHAYABHAI - Petitioner(s) Versus STATE OF GUJARAT & 3 - Respondent(s) ============================================= Appearance : MR VIJAY H NANGESH for Petitioner(s) : 1, MS. KRINA CALLA, ASSTT.GOVERNMENT PLEADER for Respondent(s) : 1, None for Respondent(s) : 2 - 4. ============================================= CORAM : HONOURABLE THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA and HONOURABLE MR.JUSTICE K.M.THAKER Date : 16/08/2010 ORAL ORDER(Per : HONOURABLE THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA) Heard counsel for the petitioner and Ms. Krina Calla, AGP appearing on behalf of the State. On being satisfied on the ground, delay of 219 days in preferring the appeal is condoned. CA stands disposed of. (S.J. Mukhopadhaya, C.J.) (K.M. Thaker, J.) */Mohandas     Top

Author: Mr.S.J.Mukhopadhaya,&Nbsp;Honourable Mr.Justice K.M.Thaker,&Nbsp;

Rabari vs State on 16 August, 2010

Gujarat High Court

IN THE HIGH COURT OF JHARKHAND AT RANCHI A.B.A. No. 2839 of 2010 ... Ganesh Prasad Keshri ... ... Petitioner ­V e r s u s­ The State of Jharkhand ... ... Opposite Party ... CORAM: ­ HON'BLE MR. JUSTICE PRASHANT KUMAR. ...    For the Petitioner : ­ Mr. R.M. Singh, Advocate.    For the State : ­ Mr. A.B. Mahto, APP.   ...   04/03.01.2011 After some argument, learned counsel for the petitioner seeks  permission to withdraw this anticipatory bail application. Permission accorded. Accordingly, this  anticipatory bail application is dismissed as  withdrawn.    (Prashant Kumar, J.) sunil/ 

Ganesh Prasad Keshri vs State Of Jharkhand on 3 January, 2011

Jharkhand High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM Crl.Rev.Pet.No. 59 of 2010() 1. P.VISWANATHAN ... Petitioner Vs 1. SIVADAS ... Respondent For Petitioner :SRI.RAJESH SIVARAMANKUTTY For Respondent :SMT.A.PREMAKUMARI The Hon'ble MR. Justice V.RAMKUMAR Dated :06/01/2010 O R D E R V. RAMKUMAR, J. =============== Crl.R.P. No. 59 of 2010 ================= Dated this the 6th day of January, 2010. ORDER The accused in S.T. No. 2592 of 2006 on the file of the Judicial First Class Magistrate-II, Palakkad for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881, challenges the conviction entered and the sentence passed against him concurrently by the courts below. 2. Pending this revision, the parties have settled the matter. Crl. M.A. No. 139 of 2010 has been filed under Section 147 of the Negotiable Instruments Act, 1881 seeking permission to record the composition entered into between the revision petitioner and the complainant. The said petition has been signed by both the revision petitioner as well as the complainant and their respective counsels. In the light of this development, the aforementioned composition is recorded and it will have the effect of an acquittal of the revision petitioner within the meaning of Sec. 320 (8) Cr.P.C. Money, if any, deposited by the revision petitioner before the trial court pursuant to the orders, if any, passed by the superior courts shall be refunded to the revision petitioner/accused. This Crl. R.P. is disposed of as above. Dated this the 6th day of January, 2010. V. RAMKUMAR, JUDGE. rv 

P.Viswanathan vs Sivadas on 6 January, 2010

Kerala High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 36333 of 2009(J) 1. RAMA VARMA CLUB, ... Petitioner Vs 1. THE DEPUTY COMMISSIONER (APPEALS), ... Respondent 2. THE COMMERCIAL TAX OFFICER, For Petitioner :SRI.RAJU JOSEPH For Respondent : No Appearance The Hon'ble MR. Justice C.K.ABDUL REHIM Dated :16/12/2009 O R D E R C.K.ABDUL REHIM, J. ------------------------------ W.P.(C).No.36333 OF 2009 ------------------------------ Dated this the 16th day of December, 2009 J U D G M E N T ---------------------- 1. Challenge in this writ petition is against Ext.P6, an interlocutory order issued by the statutory appellate authority, the 1st respondent herein. Against Ext.P2 order of assessment issued under the provisions of Section 25 of the Kerala Value Added Tax Act, 2003 (KVAT Act) and against Ext.P3 order imposing penalty under Section 67 of the Act, for the year 2007- 08, the petitioner had preferred statutory appeals before the 1st respondent. The impugned interlocutory order issued on the stay petitions filed along with the appeals. The petitioner is aggrieved by the condition for payment of 50% imposed in Ext.P6 while granting stay. 2. Original assessment with respect to the year concerned was completed under Section 21 on the basis of return filed by the petitioner. Consequently, on the basis of verification of books of accounts and audited statements, the assessment was re-opened and finalised, based on the allegation that the petitioner had suppressed turnover pertaining to cooked food and pertaining to sale of certain other items like empty  W.P.(C).36333/09-J 2 bottles, cigarettes, etc:. Alleging willful concealment of sales turnover with respect to the above items, penalty was also imposed at twice the amount of tax due, calculated at 12.5% on the turnover of cooked food and at different rates for other suppressed items. 3. It is contended by the petitioner that the assessment was re-opened only on the basis of audited statement filed by the petitioner. It is further contended that the petitioner had already opted for payment of tax at the compounded rate and the authority concerned has not so far rejected the compounding applications. Therefore the rate of tax applicable is only 0.5%. It is further contended that there is no circumstance warranting imposition of penalty since there was no willful suppression. Learned counsel for the petitioner submitted that the petitioner could not make any effective objection against the proposal, since the Manager of the petitioner was under suspension pursuant to some defalcation of accounts committed by him. The liability under Ext.P2 will be reduced drastically if the rate of tax is calculated at 0.5%, is the contention. 4. Challenge against the impugned order is on the ground that the appellate authority has not adverted to such contentions and has not considered the relevant aspects of the  W.P.(C).36333/09-J 3 matter. It is contended that imposition of condition for payment of 50% is done in a quite mechanical manner, without proper application of mind. 5. On a perusal of Ext.P6 it is noticed that eventhough the authority had narrated contentions of the appellant, no discussion is made with respect to merits of such contentions. The condition is imposed without assigning any particular reason, which is reflected in the order. Considering merits of the contentions raised, I am of the opinion that the matter needs elaborate examination and prima facie the petitioner could able to establish a strong case. Therefore I am inclined to interfere with Ext.P6, especially considering the fact that major portion of the amount pertains to penalty and also considering the fact that the petitioner is an organisation, which is a Club. 6. Therefore the writ petition is disposed of quashing Ext.P6. The 1st respondent is directed to consider and dispose of Ext.P5 & P6 appeals at the earliest, at any rate within a period of two months from the date of receipt of a copy of this judgment. There will be an interim stay against recovery of amounts covered under Ext.P2 & P3 until disposal of the appeals by the 1st respondent, on condition of the petitioner remitting an amount of Rs.1,00,000/- within a period of two weeks from today  W.P.(C).36333/09-J 4 and on the petitioner furnishing security bond for the balance amount without sureties in the form prescribed under the KVAT Rules. It is made clear that on payment of the amounts stipulated above, the prohibitory order issued restraining Bank transaction of the petitioner, shall be released. C.K.ABDUL REHIM, JUDGE. okb 

Rama Varma Club vs The Deputy Commissioner ... on 16 December, 2009

Kerala High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA CR. APP (DB) No.859 of 2010 MD.RINKU @ IMRAN, SON OF MD. ATAUR RAHMAN, RESIDENT OF ALI BUX LANE, P.S. NATHNAGAR, DISTRICT - BHAGALPUR. .... APPELLANT. Versus THE STATE OF BIHAR .... RESPONDENT. ----------- 02/ 20.07.2010 This appeal is admitted for hearing. Call for the Lower Court Records. On the point of bail it has been submitted by learned lawyer for the appellant that the allegations are general in nature and other convicts have preferred the appeal which has been admitted and many of convicts have been admitted to bail. Considering the facts and circumstances of the case, during the pendency of this appeal, the appellant Md. Rinku @ Imran is directed to be released on bail on furnishing bail bond of Rs.10,000/- (ten thousand) with two sureties of the like amount each to the satisfaction of Sri Nand Kishore Gupta, Additional District & Sessions Judge - 4, Bhagalpur / his successor court in connection with S. Tr. No. 482 of 2009. Realization of fine imposed upon the appellant shall remain stayed during the pendency of this appeal. 2 Tag this appeal along with Cr. App. (DB) Nos. 766, 824, 798 and 839 of 2010. (Shyam Kishore Sharma, J.) (Gopal Prasad, J.) Kundan

Md.Rinku @ Imran vs The State Of Bihar on 20 July, 2010

Patna High Court - Orders

[Section 28(3)] [Section 28] [Complete Act]

Central Government Act

1. 1 W135 19484-489/IO THE HIGH COURT OF KARNATAKA AT DATED THIS THE 4TH DAY OF NOVEMBER " BEFORE THE HON'I3LE MR.JUS"I'ICE A P. SRINIVAS, S /O. LATE SR1. K.' I?URUSHOTHA1v1_ NAIDU; AGED ABOUT 46 RESIDING AT NO.13"£T'., A MADHAVARAYA, . ' MUDALLAR«.ROAI_3, ~ : FRAzER--_TO§;vN, _ RANGA:;O'RE:;¢560.".Oo'5.A SMT; P. '" '- D /O, LATE..SR«I}'.K.'P_UROSHOTHAM NAIDU, AGE11,AB.OUT 65 YEARS, .-RESIDING ATNO-.5/1, 4TH CROSS. .. SAMPANO'1~- NAOARA, B;!5XNGALORE--S€30 027. V ._ SMT. -15;..I_u':iNUKA. " ._;D/O_;-.1,Ai_TE SR1. K. PURUSHOTHAM NAIDU, ' AGED -A13OU'F 59 YEARS, RI+':S1D'INO. AT ANKANNA REDDY LAYOUT. DODDA BANASWADE. ; .__ BANGALORE--56O 043. ' --=SMT. P. RUKMINI, D/O. LATE SR1. K. PURUSHOTHAM NAIDU, AGED ABOUT 57 YEARS. WRIT PETITION NOS. 1943+ 19-1489:/20 10 {LR--'RE:Si V BETWEEN ' WPS 19484-489/10 RE.SiDING AT NO.137, MADHAVARAYA MUDALLAR ROAD. FRAZER TOWN. BANGALORE--56O 005. SW'. P. SBAMAIA " r.- D/O. LATE SR1. K. PUROSHOTHAM NAID*:._7," AGED ABOUT 47 YEARS, A .. ,_ _ RESTDTNO AT ASHIRWAD COLONEY. VERMOVU, BANGALORE. I I SMT.MINNAI..A, _ ; W/O. LATE SR1. K. PUROSHQTHAM R_A1B.U;:f-~ AGED ABOUT 83 YEARS, * RESIDING AT NO._.137, . . MABHAVARAYA MUDAIJARV RQAD',~~ _ FRAZER TOWN, " ~ =._ 3 L A BANGALORE--56O 005, ' (2 TO 6 ..REP... }3Y .. '.SR:;:.;R, S.Ri-§iNAS}VVV. . PETITIONER/S {BY SR1. A. ADV.) A.N..D5 STATE V BY._rIS"SE'cRETARY " --._«AI\2O;c:O~1}/IMISSTONER, REVENUE DEPARTMENT. VIDHANA SOUDHA, BANGALORE 560 001. . V LAND TRIBUNAL, ' ANEKAL TALUK, BY ITS SECRETARY. THASILDAR. ANEKAL. 3 WPS lQ484~489/ 10 3. B , S/O. SUBBAIAH, AGED ABOUT 80 YEARS. NERIGE VILLAGE, AN EKAL TALUK. ANEKAL. _ $**=I=* THESE WRIT PETITIONS) I 'W._UND«ER: ARTICLES 226 AND 227 OF THE C*ONSTITUTI.ON.. OE PRAYING TO QUASH TI»IE.»I'O.RDER*.T_DATEDf 1.41.1998 PASSED BY SECOND RESPONDENT VIDE"~ANN'EXURE-B AGAINST A DEAD MAN K;'~--pIIR_SI-1OTIIANI'~AA NAIDU IN RESPECT OF S ACRES"'b&?.Lg\NIj SURVEY NO108 AND NEW SURVEY _.N.O1.21.3_: fSI'fUA1~"EjD"' AT NERIGA VILLAGE, SA;a,J_APURA§ TALUK, OCCUPANCY RIGHTS IN FAVOUER OF "rHvIRI'§~,RES?.OI%IDENT UNDER ANNEXURE-B DATED 1_T_1.I1.Vi9S8._ " v.:AI\ID CONFIRM THAT THE PETITIONERS'-ARE"AI3'SOLUTE OWNER OF THE 5 ACRES 'IN OLD'""SURVEY NO.108 AND NEW SURVEY 'NO'.2~1_3v..4:'SfE{JflATED AT NERIGA VILLAGE SARJAPURA "IIO3LI;"'~"'ANE}{AL TALUK BELONGS TO LATE K. PUR.USIIOTI%aAM NAIDU. THESE WRIT PE'I'I'I'IONS COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE _ " .fFi~IE_fFOLLOWING: 4 W198 1 9484-489/ 1 0 ORDER Learned eounsei for the petitioners submit:V:th:éite:.V'the petitions may be dismissed as withdrawn 'a review petiton. ». In View of the submissionflrliade. t.he.petitii3ri'i isfl dismissed as Withdrawn and ti'1e:"§etitiofiers"'afe liberty to file a review petition. V .__ 5 _ _ JL

Author: A.S.Pachhapure

P Srinivas vs Karnataka State on 4 November, 2010

Karnataka High Court

JUDGMENT John Edge, Kt., C.J., Knox, Blair, Banerji, Burkitt and Aikman, JJ. 1. On the 23rd of April 1892, the plaintiffs, who are the respondents in this appeal, brought a suit in the Court of the Subordinate Judge of Gorakhpur praying for a decree for sale under Section 88 of Act No. IV of 1882 of the villages Birari and Bhadwa on a mortgage dated the 28th of April 1879, and also praying that in the event of the sale proceeds of the two villages not being sufficient for the satisfaction of the demand of the plaintiffs, an order might be entered in the decree for recovery of the balance of the amount which might be decreed from the other movable and immovable property of the defendants. The amount claimed was Rs. 17,906, of which Rs. 7,000 was claimed as principal and Rs. 10,906 as interest. 2. The only pleas raised in the written statement which are relied upon in the grounds of this appeal were that there was no condition in the mortgage-deed for the payment of interest after the due date, and that by reason of limitation the plaintiffs were not entitled to interest as damages. 3. The mortgage-deed was one not presenting any difficulties of construction. The principal money was Rs. 7,000, upon which interest at the rate of one rupee per centum per mensem was agreed to be paid. The condition as to the repayment of the principal and the payment of the interest was, as correctly translated, as follows: I therefore covenant and execute this bond that the aforesaid sum (Rs. 7,000) with interest at the rate of one per centum per mensem from to-day's date until the date of realization within one year I shall pay and satisfy." The other subsequent material clauses in the mortgage-deed were as follows: In lieu of the said sum of money I mortgage and hypothecate the entire mauzas Birari and Bhadwa, tuppa Jhar Kola, pargana Mahawli, belonging exclusively to myself, and which are in no way alienated, and in my, this executant's, possession and occupation; and until I pay in full the whole of the amount of principal and interest at the aforesaid rate I shall not transfer the aforesaid shares to any one by sale or mortgage. When I pay off the principal with interest I shall obtain a registered receipt from the said Shaikhs. If I, from any reason whatsoever, pay the money into the Treasury of the Court, I shall not claim any costs incurred by me. * * * * If I fail to pay the money with interest on the due date, the said Shaikhs shall have power to recover the said sum of money together with interest at the rate of one per centum per mensem and costs from the mortgaged property and other properties movable and immovable belonging to me. * * * * The money which I shall pay shall first be credited towards interest and the balance towards the principal. If during the currency of the stipulated term the said mahajans should have any cause of uneasiness on account of any act on my part, the said mahajans shall have power to realise the principal and interest due to them from the person or property of this executant, the details of which are given above, and shall not wait for the expiry of the stipulated period. 4. The Subordinate Judge, who, through negligence or otherwise, apparently mistranslated the mortgage-deed, stated that on a perusal of the deed he was of opinion that the parties intended that interest should continue to run until payment, and that it was not intended that the payment of interest should be restricted to one year, and he gave the plaintiffs a decree for Rs. 17,906 with costs and future interest at the rate of 8 annas per centum per mensem, and ordered that if the amount decreed should not be paid within four months the property should be sold. The principal defendant appealed from that decree In consequence of a recent ruling of the High Court at Calcutta in Bikramjit Tewari v. Durga Dayal Tewari I.L.R. 21 Cal. 274, the appeal was referred to a Full Bench. 5. For the defendant-appellant it was contended that by the deed interest ran from the date of the deed (the 28th of April 1879) until payment within one year from that date, and if payment were not made within the year then that interest ran for one year from the date of deed and no longer, and that the other conditions of the deed binding the mortgagor not to transfer the mortgaged property and giving the mortgagees power in case payment was not made to recover the principal with interest were common form conditions which are inserted in nearly all mortgage-deeds in these provinces, whether the mortgage-deeds confine the mortgagee's liability for the payment of interest to interest during the term of the mortgage, or provide for the payment of interest not only during the fixed term of the mortgage but after the due date of the mortgage. It was also contended on behalf of the appellant that interest which might be allowed by a Judge under Act No. XXXII, 1839, upon a mortgage was of the nature of damages and was not of the nature of contractual interest, and in any event that it was not "interest on the mortgage" within the meaning of Section 86 of Act No. IV of 1882, and that in this case the claim in respect of interest, either as called interest or as damages, after the expiration of the year from the date of the mortgage was barred by the Indian Limitation Act, 1877. For the appellant the following authorities were relied upon: Cooke v. Fowler L.R. 7 H.L. 27; Bishen Dayal v. Udit Narain I.L.R. 8 All. 486; Mansab All v. Gulab Chand I.L.R. 10 All. 85; Bhagwant Singh v. Daryao Singh I.L.R. 11 All. 416; Sri Niwas Ram Pande v. Udit Narain Misr I.L.R. 13 All. 330 and Gudri Koer v. Bhuboneswari Coomar Singh I.L.R. 19 Cal. 19. 6. For the plaintiffs-respondents it was contended that, according to the mortgage-deed, interest as such was payable, not only for the term of the mortgage but after the due date, and in any event that the Court could allow interest after the due date under Act No. XXXII of 1839, and that interest so allowed was not to be considered as damages but as interest which the parties had within their contemplation when the mortgage-deed was made, as they must be presumed to have known the provisions of Act No. XXXII of 1839, and that that Act might be applied if the principal and interest due under the mortgage were not paid on the due date. It was also contended on behalf of the respondents that interest allowed by a Court under Act No. XXXII of 1839 on the non-payment of the principal and interest on the due date of a mortgage was "interest on the mortgage" within the meaning of Section 86 of Act No. IV of 1882. For that proposition the judgment in Bikramjit Tewari v. Durga Dyal Tewari I.L.R. 21 Cal. 274, was relied upon. It was also contended that a Court could decree interest under Act No. XXXII of 1839 notwithstanding that the period of limitation prescribed by art.116 of the second schedule of the Indian Limitation Act, 1877, had expired before the suit had been brought. It was contended that this was the legitimate conclusion to be deduced from the case reported. The other cases relied upon on behalf of the respondent were the following: The anonymous case in 4 Taunton 876; Price v. The Great Western Railway Co. 16 M. and W. 244 and London, Chatham and Dover Railway Co. v. South Eastern Railway Co. L.R. 1 Ch. Div. 120. 7. In our opinion the construction of the mortgage-deed admits of no doubt. The term was one year from the 28th of April 1879. The mortgagees could on the expiration of that year sue for and recover the principal moneys remaining due at the expiration of that year; in certain events the mortgagees could before the expiration of that year sue for and recover the principal and interest due at the date of their suit, On the other hand, the mortgagor could, by payment to the mortgagees or into the Treasury of the Court of the principal and interest due, redeem the mortgage even before the expiration of the year. The payment of post diem interest was not provided for by the mortgage-deed, and certainly, according to the ordinary construction of such deeds in these provinces, which we believe to be correct, was not contemplated by the mortgagor. The conditions in the mortgage-deed binding the mortgagor not to transfer the mortgaged property, and giving the mortgagee power to recover the principal money with interest if the mortgagor failed to pay the principal with interest on the due date, are ordinary conditions commonly inserted in mortgage-deeds in these provinces, whether it is intended that interest shall run only to the due date or shall run not only to the due date but after due date and until the principal sum 9hall have been paid. Such conditions are never construed in this Court as indicating that interest shall continue to run after the due date. 8. It may be said that if the mortgagees had not construed the mortgage-deed as providing that interest should continue to run after the expiration of the year which began on the 28th of April 1879, why did they not bring their suit within the period prescribed by Article 116 of the second schedule of the Indian Limitation Act, 1877? It is possible that the mortgagees may have misconstrued the mortgage-deed, and it is also possible that they may have taken the same view of the law as was taken in Bikramjit Tewari v. Durga Dyal Tewari I.L.R. 21 Cal. 274, and have been unaware of the application of Article 116 of the second schedule of the Indian Limitation Act, 1877. It is useless to speculate as to the reasons which may have influenced the mortgagees. What we have to decide is, what was the mutual intention of the parties as evidenced by the mortgagee-deed. We have said that in our opinion the construction of the mortgage-deed is not open to doubt. If the construction of the mortgage-deed were open to doubt, we, sitting here to administer the law, would be bound in justice, equity and good conscience to construe the mortgage-deed in favor of the mortgagor and against the mortgagees on any doubtful point. It requires but little knowledge of borrowers and of money-lenders in these provinces to be aware that it rarely happens that a small zamindar or an agriculturist has legal assistance of any kind in the negotiation for a loan on mortgage or in the preparation or approval of a mortgage-deed. The borrower goes to the money-lender, and it is the money-lender who prepares the mortgage-deed and who is responsible in ninety-nine cases out of one hundred for the language used in it. The money-lender is a shrewd man of business; the needy zimindar or needy agriculturist may understand the cultivation of land and the value of crops and seeds, but, until taught by bitter experience, he has but the most hazy conception of legal phraseology. It would be as reasonable to construe a doubtful contract between a spider and a fly against the fly as it would in these provinces be to construe a doubtful provision in a mortgage-deed against the mortgagor. 9. When by a mortgage-deed it is provided that the principal and interest at an agreed rate shall be payable at a certain time, and the mortgagor fails to make payment on or before that date, it is, subject to the provisions of the Indian Limitation Act of 1877, competent to a Court in its discretion to allow interest after the date certain under Act No. XXXII of 1839, provided that the parties have not contracted themselves out of that Act. It is seldom that the provision in the Act enabling a Court to allow interest when a demand in writing has been made could apply in a transaction of mortgage. 10. It is quite clear that the interest which a Court may allow under Act No. XXXII of 1839 is not contractual interest. The allowance of such interest under Act No. XXXII of 1839 and the rate which may be allowed depend, not upon the agreement of the parties, but entirely on the discretion of the Court. It is allowed as compensation for the breach of contract, in the one case to pay at the time certain, and in the other case for non-compliance with demand in writing, and is damages, although the amount of such damages is ascertained by allowing interest at a rata fixed by the Court in the particular case. There is on this point no difference in principle between Act No. XXXII of 1839 and Section 28 of the 3rd and 4th William IV, Chapter 42. In England interest allowed as damages under Section 28 of the 3rd and 4th William IV, chapter 72 does not become a debt until judgment, when it becomes part of the judgment-debt. 11. It is obvious to our minds that article 116 of the second schedule of the Indian Limitation Act, 1877, would apply to any claim to have interest allowed under Act No. XXXII of 1939 in respect of the non-payment on the due date of the money due under a registered mortgage-deed, if the suit was not brought within six years of the breach of contract. 12. Turning now to Act No. IV of 1882, it seems to us to be clear, upon a comparison of the provisions of Sections 83, 84, 86, 88 and 92 of that Act that the interest on payment of which in addition to the principal money a mortgagor may prevent foreclosure or sale or obtain redemption is the interest which be contracted to pay, and the payment of which was secured by the mortgage-deed. Those who were responsible for the drafting of the Transfer of Property Act, 1882 (Act No. IV of 1882) were not always careful to use the same terms to express the same meaning, yet it is not conceivable that it was intended that a mortgagor should be entitled to redeem under Section 92 upon payment of the principal money and the contractual interest due under the mortgage-deed, on the day fixed by the Court, plus the costs of suit, if any, awarded to the mortgagee, and that in order to avoid a sale under Sections 88 and 89 he should be obliged to pay, not only the principal moneys and the contractual interest due under the same mortgage-deed on the day fixed by the Court, plus the costs of suit, if any, awarded to the mortgagee, but in addition such interest as might be allowed by a Court under Act No. XXXII of 1839, and yet, if the decision in Bikramjit Tewari v. Durga Dayal Tewari I.L.R. 21 Cal. 274 be correct, that is the result of Sections 89, 89 and 92 of Act No. IV of 1882. For example, it is agreed between the parties in this case, through their counsel and vakils respectively, that the amount due for principal and interest up to the expiration of the year of the mortgage is Rs. 7,840, and that, if the decision first referred to of the Calcutta High Court is correct, the decree for principal and interest to the date of suit must be for Rs. 17,906. This suit was instituted on the 23rd of April, 1892. On the 22nd of April, 1892, the mortgagor might have deposited in Court under Section 83 of Act No. IV of 1882 the "amount remaining due on the mortgage," which was, if our construction of the mortgage be correct, Rs. 7,840, and then Section 84 would have applied: or the mortgagor might, on the 22nd of April 1892, have instituted a suit for redemption, and under Section 92 of Act No. IV of 1882 he would have been entitled to a decree for redemption conditional on his paying to the defendants or into Court the sum of Rs. 7,840 and the costs of suit, if any, awarded to the defendants. There is no question under Section 92 of interest which may be allowed under Act No. XXXII of 1839. The term "the mortgage money" of Section 92 is thus defined by Section 58(a)--"the principal money and interest of which payment is secured for the time being are called the mortgage money." We do not suppose that anyone would suggest that interest which might be allowed by a Court under Act No. XXXII of 1839 could be brought within that definition, unless the parties had specially agreed in their deed that any interest which might be allowed by a Court under Act No. XXXII of 1839 should be deemed to be interest secured by the deed. We have never seen a deed containing such an agreement. Even without the light afforded by a consideration of Sections 83, 84, 90, 92 and 94 of Act No. IV of 1882, we should have had no doubt that the term "interest on the mortgage" of Section 86 must be interest due on the mortgage and not interest allowed by a Court under Act No. XXXII of 1839: the latter interest is neither due nor does it become due on the mortgage; it becomes due under the decree of the Court and under that decree alone, and consequently is not part of the amount on default of payment of which the mortgaged property as such may be sold under Section 89. When in a suit for sale under Sections 88 and 89 a Court allows under Act No. XXXII of 1839 interest post diem, its decree, so far as such post diem, interest is concerned is not a decree for sale under Section 88, but is a decree for money which can be executed in the manner provided for the execution of simple money decrees. It is only under the Transfer of Property Act, 1882 (Act No. IV of 1882), that a Court can in a suit on a mortgage make a decree for sale of the mortgaged property as such, and a Court has not jurisdiction to extend those sections by decreeing a sale of mortgaged property if the interest which it allows under Act XXXII of 1839 be not paid. 13. The mortgage-deed in this case was made on the 28th of April 1879. The only decree for sale of the mortgaged property which could be made in this suit was a decree under Section 88 of Act No. IV of 1882. It would work a grievous hardship on a second mortgagee who had advanced his money in 1883 on the same security, having taken the precaution to inform himself by a search in the office of the Registrar of Deeds as to the nature of the previous incumbrance, and who trusted to the provisions of Act No. IV of 1882, if his rights were postponed, and the first mortgagee should under a decree under Act No. XXXII of 1839 be entitled to be paid out of the proceeds of a sale of the mortgaged property the interest allowed to him by the Court under Act No. XXXII of 1839 before any portion of the proceeds of such sale should be applied towards discharging the second mortgage. Such was not, in our opinion, the intention of the Legislature when passing Act No. IV of 1882 and enacting Section 295 of Act No. XIV of 1882. 14. The appellant has limited the relief which we can afford to him in this appeal by his prayer in his memorandum of appeal, which is: "that the award of post diem interest to the amount mentioned in the valuation of this appeal be set aside and the suit to that extent be dismissed." The amount mentioned in the valuation of the appeal is Rs. 9,750. Deducting that sum of Rs. 9,750 from the amount decreed by the Court below, we give the plaintiffs a decree for the balance, and order that upon the defendant-appellant paying to the plaintiffs or into Court such balance on or before the 27th of November next, the plaintiffs should deliver up to the defendant-appellant or to such person as he may appoint all documents in the possession or power of the plaintiffs relating to the mortgaged property, and shall transfer the property to the defendant-appellant free from all incumbrances created by the plaintiffs, or any of them, or any person claiming under them, or any of them; but that, if such payment is not made on or before the 27th of November next, the mortgaged property or a sufficient part thereof be sold, and that the proceeds of the sale after defraying there out the expenses of the sale, be paid into Court and applied in payment of the said amount found due by us to the plaintiffs, and that the balance, if any, be paid to the defendant-appellant or other persons entitled to receive the same. We vary the decree below, and allow this appeal to the extent above mentioned with costs to the appellant in this Court, and otherwise dismiss the suit.

Khadim Husain And Ors. vs Narindra Bhadur Pal on 7 June, 1895

Allahabad High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM ITA.No. 364 of 2009() 1. THE COMMISSIONER OF INCOME TAX, TRICHUR. ... Petitioner Vs 1. M/S. KALINGA CHIT FUNDS (P) LTD., ... Respondent For Petitioner :SRI.P.K.R.MENON,SR.COUNSEL, GOI(TAXES) For Respondent : No Appearance The Hon'ble MR. Justice C.N.RAMACHANDRAN NAIR The Hon'ble MR. Justice C.K.ABDUL REHIM Dated :22/07/2009 O R D E R C.N.RAMACHANDRAN NAIR & C.K.ABDUL REHIM, JJ. .................................................................... I.T. Appeal No.364 of 2009 .................................................................... Dated this the 22nd day of July, 2009. JUDGMENT Ramachandran Nair, J. Since we have already held in other cases that interest received from Post Office deposits under the Indira Vikas Pathra and Kisan Vikas Pathra schemes do not attract liability under the Interest Tax Act, we dismiss the appeal filed by the Revenue. C.N.RAMACHANDRAN NAIR Judge C.K.ABDUL REHIM Judge pms 

The Commissioner Of Income Tax vs M/S. Kalinga Chit Funds (P) Ltd on 22 July, 2009

Kerala High Court

JUDGMENT Chagla, C.J. 1. This Full Bench was constituted to consider the constitutionality of certain provisions of the Bombay Prevention of Hindu Bigamous Marriages Act, which is Act 25 o£ 1946 and the question arises in the following circumstances. The accused in this case was married in Bombay in 1948. On 16th of May, 1955 he married a second wife at Bikaner. On 5th July 1955 his first wife lodged a complaint with the First Class Judicial Magistrate at Sholapur. The learned Magistrate held that inasmuch as the prosecution was launched after the Act 25 of 1946 was repealed by the Central Act 25 of 1955 which came into force on 18th May 1955, the accused was entitled to an order of acquittal. Against the order of acquittal, the State of Bombay came in appeal in this Court and the matter came before Mr. Justice Shah and Mr. Justice Palnitkar and these learned Judges felt considerable doubt as to whether Radhabai Mohandas v. Bombay State, 57 Bom LR 827 : ((S) AIR 1953 Bom 439)(A), had been correctly decided, and therefore, they referred the question as to the validity of the Act to the extent that it applies to marriages contracted outside the State of Bombay to a Full Bench. 2. Now, turning to the provisions of the Act, with which we are concerned, Section 3 defines a bigamous marriage and the definition is the ordinary definition of what a bigamous marriage is. Section 4 provides : "Notwithstanding any law, custom or usage to the contrary, a bigamous marriage shall be void, (a) if it is contracted in this State after the coming into force of this Act, (b) if it is contracted beyond the limits of this State after the coming into force of this Act and either or both the contracting parties to such marriage are domiciled in this State", and Section 5 which is the penal section provides : "Notwithstanding any law, custom or usage to the contrary, whoever not being a minor contracts a bigamous marriage which is void under Section 4 shall, on conviction, be punishable with imprisonment for a term which may extend to seven years and shall also be liable to fine." And Section 8 which has also a bearing in this case is a section dealing with jurisdiction which provides : "Notwithstanding anything contained in the Code of Criminal Procedure, 5 of 1898, an offence under Section 5 may be tried by any Court of a Presidency Magistrate or a Magistrate of the First Class." 3. Now, before we go to the substantial matter which has necessitated this Full Bench, we might dispose of one or two matters which are not of substance or importance. We are in entire agreement with the view taken by the learned Judges who decided , that Section 8 is intra vires the State Legislature and it is competent to the State Legislature notwithstanding the provisions of the Code of Criminal Procedure to direct that any offence can be tried by any Court in the State of Bombay. We are also in agreement with the view taken by Mr. Justice Shah and Mr. Justice Palnitkar that the learned Magistrate was obviously in error when he held that although the alleged offence was committed when the Bombay Act was in force, the mere fact that the complaint was filed after the repeal of the Act precluded the State from prosecuting the accused. If the accused is guilty and if he has committed an offence, then the mere fact that prosecution is launched after the repeal of the Act which constituted the offence cannot possibly affect the guilt of the accused or the right of the State to prosecute him or the jurisdiction of the Court to convict him. But the real question that we have to consider is whether in the first place by Section 4 the State Legislature can declare a marriage void which has been contracted outside the State of Bombay and the second question is, which is connected with the first, whether the State Legislature can constitute the contracting of a bigamous marriage outside the State an offence punishable by the Courts set up in the State. Now, it is always desirable, if it is possible, to consider any question in the first instance apart from authority and on principle. Now, in order to decide whether the State Legislature can declare a marriage contracted outside its territorial limits void and constitute it an offence, we must consider what is the competence of the Stale Legislature under the Constitution. The Act was passed in 1946, and, therefore, we must look to the provisions of the Government of India Act. The competence of the State Legislature is to be found in Section 99 and that provided that a provincial legislature may make laws for the province or any part thereof. In order to decide what laws a provincial Legislature could make, one had to turn to the 7th Schedule of the Act and the topics on which a provincial Legislature could legislate were set out in List 2 which was the provincial Legislative list and in List 3 which was the concurrent list. List III contained subjects which could be legislated upon both by the Central and the Provincial Legislature. Now, the subjects with which we are concerned in this piece of legislation are criminal law and marriage. Criminal law is Entry No. 1 in the Concurrent List and Marriage is Entry No. 6 in the same list. Therefore, with regard to Criminal Law and Marriage, both the Provincial and the Central Legislature had concurrent power to legislate. But what is important to note and which is underlying the scheme of the Constitution is that the Central Legislature had overriding powers with regard to subjects in the concurrent list. It may also be pointed out what is well-known to any student of constitutional law, that the device of the concurrent list was peculiar to our constitution and it was incorporated in order to bring about uniformity with regard to certain laws all over the country. Laws dealing with crime, laws dealing with marriage and divorce and other subjects mentioned in List III could be passed by the different State Legislatures, but it was always open to the Central Legislature to step in and to put on the statute book a law bringing about uniformity all over the country. Now, it is true that when you are dealing with a Legislature and its competence, you must give the widest connotation to the words used conferring jurisdiction and competence upon a Legislature, and we are in agreement with the Government Pleader that when the Government of India Act uses the expression "make laws for the province or any part thereof" these words must receive at our hands the widest connotation. Within the ambit of the lists, in 7th Schedule, the Provincial Legislature was sovereign and it had the widest powers of Legislation. But it is important to bear in mind that the State Legislature had no extra territorial powers. The Central Legislature was given certain extra territorial powers as is apparent from Section 99(2). Now, under our present Constitution Parliament has been given absolute territorial powers. Therefore, to-day Parliament may enact any extra territorial law. The only limitation on its power is the practicability of the law. If an extra territorial law cannot be enforced, then it is useless to enact it but no one can suggest to-day that a law is void or ultra vires which is passed by the Parliament on the ground of its extra territorially. But even under the Government of India Act, although limited power of extra territorial Legislation was given to the Central Legislature, as far as the provincial legislature was concerned, it had no extra territorial power at all. Therefore the jurisdiction and the competence of the provincial legislature is circumscribed to this extent that although it can legislate with all the amplitude of power with regard to the subjects mentioned in the lists, annexed to the 7th Schedule, the territorial extent of its jurisdiction is circumscribed by the boundaries of the province. It cannot extend a law beyond those boundaries. 4. Now, the question as to what is the territorial jurisdiction of a legislature has come up very often for consideration by various Courts and the test which has been ordinarily laid down is that there must be a territorial nexus between the subject matter and the State. If the Legislature is dealing with a subject matter, that subject matter must have some connection or relation to the territory with regard to which the legislature can legislate. In the absence of such a territorial nexus, a legislation dealing with a subject matter which is outside the boundaries of the province would be ultra vires the legislature. Now, in this case the subject matter of the legislation is firstly marriage and secondly crime. With regard to marriage, the legislature has attempted to legislate with regard to marriages contracted beyond the limits of the province or the State. If, therefore, the subject matter is marriage, it can only legislate with regard to that marriage which is contracted within the limits of the province or the Slate. If it legislates with regard to marriages contracted beyond those limits, a territorial nexus has got to be discovered between the State and the marriage contracted outside the limits with regard to which the legislature is attempting to legislate. Now, it is difficult to understand what territorial connection there is between a marriage contracted in Bikaner and the State of Bombay. The legislature solemnly purports to declare a marriage contracted in Bikaner as void. Admittedly this marrage was valid according to the law prevalent in Bikaner. The marriage took place according to that law and the Bombay Legislature by Section 4 declares that that marriage is void with all the consequences of a marriage being void. Now, what is suggested as the territorial nexus is that the law does not apply to all marriages which took place outside the State of Bombay but it only applies to those marriages where one of the contracting parties to the marriage is domiciled in Bombay and the nexus or connection relied upon is the domicile of one of the contracting parties in the State of Bombay. Before we deal with this nexus, we think it is very necessary to say a few words about the expression "domiciled" used in this Act. Domicile is an expression which has certain implications in International Law. Domicile, means residence by choice with the intention of the residence being permanent in a particular country and as Halsbury states in Vol. 6, page 198, Article 242 : "A person's domicile is that country in which he either has or is deemed by law to have his permanent home." Later on in that paragraph : "All those persons who have, or whom the law deems to have, their permanent home within the territorial limits of a single system of law are domiciled in the country over which the system extends; and they are domiciled in the whole of that country, although their home may be fixed at a particular spot within it." Now, in our opinion, it is a total misapprehension of the position in law in our country to talk of a person being domiciled in a province or in a State. A person can only be domiciled in India as a whole. That is the only country that can be considered in the context of the expression "domicile" and the only system of law by which a person is governed in India is the system of law which prevails in the whole country and not any system of law which prevails in any province or State. It is hardly necessary to emphasize that unlike the United States of America, India has a single citizenship. It has a single system of Courts of law and a single judiciary and we do not have in India the problem of duality that often arises in the American Law, the problem which arises because o£ a federal citizenship and a State citizenship. Therefore, in India we have one citizenship, the citizenship of India. We have one domicile -- the domicile in India and we have one legal system -- the system that prevails in the whole country. The most that one can say about a person in a State is that he is permanently resident in a particular State. But as Halsbury points out, to which we have just made reference, the mere fact that a man's home may be fixed at a particular spot within the country does not make him domiciled in that spot but makes him domiciled in the whole country, and therefore, whether a man permanently resides in Bombay or Madras or Bengal or anywhere does not make him domiciled in Bombay, Madras or Bengal but makes him domiciled in India; Bombay, Madras and Bengal being particular spots in India as a country. 5. It has been suggested by the Government Pleader that every state can have its own laws and people in the State are subject to those laws, and therefore just as in the United State of America, it can be said in India that a person is domiciled in a particular State because he is governed by the laws of that State. Now, that argument is based upon a complete fallacy. In India the personal law which applies to a Hindu or a Muslim is not based upon domicile. His personal law is not the result of a particular part of India in which he happens to reside. He carries his personal law with him wherever he goes and that personal law is not affected by his residence in any particular part of the country. The personal law is the result of certain precepts in his religion or in his sacred books which apply to him by reason of the fact that he follows a particular religion. It is true, as the Government Pleader points out, that the personal law can be affected or modified by legislation passed by the State Legislature under its powers under the Constitution, for instance, the personal law with regard to marriage can be modified by the State Legislature. But the power to modify the personal law or to pass other laws within its competence does not depend upon the persons being domiciled in the State. The competence of the Legislature is not limited to passing of laws which would only apply to persons domiciled within the State. Any law passed by a State Legislature can be applied to any person within the State, and therefore the expression 'domicile' has no relevancy whatever in construing the competency of the State Legislature. If the State Legislature is legislating on a topic within its competence, that law can be made applicable to anyone in the State of Bombay whether he is a resident or not or even if he is a foreigner passing through the State of Bombay. Therefore, it is fallacious to suggest that the doctrine of domicile is introduced in our law by reason of the fact that the State or the Provincial Legislature has been given the power to legislate with regard to certain subject-matters within its territorial ambit. It, therefore, seems to us that the expression 'domicile' used in any State or Provincial law is a misnomer and it does not carry with the implications which that expression has when used in the context of International law. It has no more importance or significance than the expression 'permanently resident' and we are glad to know, as pointed out by the Government Pleader, that as far as he is aware the only other Act which contained this expression was the Beggars' Act which now has been amended so as to remove that inappropriate expression and even the Act which we are considering has now been repealed by the Central Act. Therefore, fortunately today there is no law on the Statute book of the Bombay Legislature which has this expression which seems to suggest that the various States in India are independent countries where people may settle down and acquire a domicile. If we are right in what we have just said, then it is clear that the mere fact that the Legislature should seek to apply its law to those whom it chose to call domiciled in the State but which means permanently residents in the State, cannot enlarge the jurisdiction of the Legislature. If the Legislature could bring within its ambit marriages contracted outside the State of Bombay, then there is no reason why it should have confined its application merely to permanent residents. It could equally have applied that law to every person in Bombay who contracted a bigamous marriage outside the State of Bombay. It is said that Section 4(b) applies the Act to persons domiciled in the State who have contracted marriages outside the State in order to constitute a nexus between the State and the person domiciled. Now, it is difficult to understand how when the Legislature is dealing with the subject of marriage, the tact that the person who contracts the marriage is resident in Bombay can constitute a nexus necessary in law to confer jurisdiction or competence upon the Legislature. 6. What we have said about marriage applies even more strongly to the question of crime because in Section 5 after declaring a bigamous marriage void, the Legislature goes onto constitute it an offence. Now, it is well settled and we shall presently refer to the most important authority on the subject that crime is local and that it is difficult to conceive of a territorial nexus in the case of crime. The fact that the offender lives in a particular territory does not constitute a nexus between the crime and the State. One has only to state the proposition to realise how untenable it is, namely, that the Bombay State Legislature should legislate and declare that a particular act done outside the State should be a crime and the person committing it should be punished if he resides in the State of Bombay. It is true that there are authorities which go to show that sovereign Legislatures have punished citizens of a country for committing offences outside it. But these are cases which deal with Legislatures which have got extra territorial powers. No one suggests that the Parliament in India cannot punish an Indian citizen who contracts a bigamous marriage outside India, but to suggest that the power which Parliament possesses is also possessed by the State Legislature and the State Legislature can punish a resident for contracting a bigamous marriage outside its boundaries is to elevate the State Legislature to the same stature as Parliament possesses under the Constitution, because the Government Pleader had to concede that if he was right in his contention, the State Legislature had the power to punish a resident in the State of Bombay for contracting a bigamous marriage not only in India outside the State boundaries but any where in the world. 7. Now, turning to the decision of Mr. Justice Chainani and Mr. Justice Gokhale, , with great respect, the whole of that decision is coloured by the view taken by the learned Judges that there can be domicile in a State or Province in India and the territorial nexus which has been suggested by these two learned Judges is also based on the fact that domicile in a State in India confers the same powers upon the State Legislature as domicile in an independent country confers upon its Legislature. 8. At p. 833 (of Bom LR): (at p. 443 of AIR), Mr. Justice Chainani, who delivered the Judgment of the Court points out: "The Provincial Legislature had power to enact a law with respect of marriage for the whole Province. It could make such laws applicable to all persons residing within its jurisdiction. It could prohibit them from performing a bigamous marriage within the Province. It could also say that no Court or authority in the Province shall recognise such marriage, whether performed within or outside the Province." So far we might say so, with respect, the propositions enunciated are unexceptional. Then the learned Judge goes on to say: "It is difficult to see why it could not also require persons domiciled, i.e., having a permanent home in the Province, to obey the law even when they went outside the Province temporarily for the consequences of their actions were likely to arise within the Province." The question that has to be considered is what is the law which the residents of the Province are called upon to obey. If it is a law, the subject-matter of which is constituted outside the Province, then it is not a law which a Province can make. To proceed with the judgment: "The object of Section 4(b) is to compel permanent residents of the Province to obey the Provincial law with regard to marriage and to prevent its evasion by the commission of bigamy outside the Province. It is legislation for the welfare and benefit of persons residing in the Province, and consequently a law for the Province within the legislative competence of the Provincial Legislature. The wide powers conferred by the Constitution on a State Legislature should not be interpreted so as to allow its laws to be defeated by the simple expedient of crossing the State boundary and doing the prohibited act on the other side of the border." 9. With respect, it is the constant headache of the State of Bombay in enforcing the prohibition law to find that the residents of Bombay cross the border, have a drink and return to Bombay, without it being possible to take any action against them. If this proposition, with respect, was sound, then there would be nothing to prevent the State of Bombay in enforcing the prohibition law against its residents even when they have committed a breach of it outside the State. The answer to the difficulty raised by the learned Judge with regard to enforcing social legislation is simple. It is not open under our Constitution to a State to enforce social legislation outside its boundaries and if social legislation has to be enforced all over the country, then the proper method of doing it is to approach the Central Government to pass a law if the subject-matter is within the concurrent list. This is exactly what has been done in the case of bigamous marriages. The Bombay law has now been replaced by the Central law and by it to contract a bigamous marriage has become an offence. To suggest, as the learned Judges suggest, that social legislation can be embarked upon by a Provincial Legislature not only within its own boundaries but outside its boundaries is to confer a jurisdiction and competence upon the Legislature which it certainly does not possess under the Constitution. The fallacy, with very great respect, underlying this observation is that the Provincial Legislature has jurisdiction to legislate with regard to its residents although the subject-matter of the legislation is not situated within the Province. In other words, what is suggested, is that although marriage is the subject-matter of the legislation and although marriage is contracted outside the State, the Provincial Legislature can legislate with regard to marriage merely because those who contract the marriages are residents of the State of Bombay. This is a proposition to which we find it very difficult to subscribe. 10. Then the learned Judge refers to the case of Macleod v. Attorney-General for New South Wales, 1891 AC 455 (B). In our opinion that is the only decision referred to in the judgment which is practically on all fours with, the case that we are considering and which has correctly enunciated the proposition of law which should find acceptance at our hands. In that case Macleod had been convicted in the colony of New South Wales for bigamy for having married in the United States while his first wife by legal marriage was living and his conviction was challenged, and in construing the Act, the learned Law Lords pointed out: "Their Lordships do not desire to attribute to the Colonial Legislature an effort to enlarge their jurisdiction to such an extent as would be inconsistent with the powers committed to a colony, and, indeed, inconsistent with the most familiar principles of international law." And the Lord Chancellor in his judgment observed: "All crime is local. The jurisdiction over the crime belongs to the country where the crime is committed, and, except over her own subjects Her Majesty and the Imperial Legislature have no power whatever." But the manner in which this decision has been sought to be distinguished is that the record of the case shows that Macleod was not domiciled in the Colony of New South Wales. Now, with respect, this distinction has no bearing when we are considering the case of a Provincial or State Legislature. In the international sense, the residents in the State of Bombay are also not domiciled in the State of Bombay and if Macleod was not domiciled in the New South Wales in order to attract the application of the law to him when he committed an offence outside the colony, similarly the residents of Bombay are not domiciled in the State of Bombay so as to attract the application of the law of bigamy when bigamy is committed outside the State of Bombay. There are observations in this judgment to show that although crime is local, the Legislature has jurisdiction over her own subjects and that the Legislature can legislate with regard to her subjects. But again the expression 'subjects' is used in relationship to an independent sovereign country. These observations would apply if India were to legislate about Indian citizens committing an offence outside the boundaries of the Indian Union. But they have no application whatsoever when we are dealing with a State or Provincial Legislature and the Indian citizens residing in that Stale. 11. The learned Judge then called attention to the case of Wallace Eros. & Co. Ltd. v. Commr. of Income-tax, Bombay , and also the case of Broken Hill South Ltd. v. Commissioner Of Taxation, (1936-37) 56 CLR 337 (D). Now, these are cases dealing with the law of taxation and the principle of territorial nexus that applies to the law of taxation can have no application when you are dealing with the law of marriage or law of crime. Also when the learned Judge deals with the ease of the State of Bombay v. Chamarbaugwala. 57 Bom LR 288: ( (S) AIR 195C Bom 1)(E), he is sum-mining to his assistance principle of territorial nexus which apply to cases of business which again are very different from the principles that have to be considered when dealing with a ease of marriage or crime. Therefore, in our opinion, with very great respect, this judgment was erroneously decided because it came to the conclusion that the impugned Act was valid when in Section 4(b) it dealt with marriages contracted beyond the limits of the Province or the State. 12. The other case to which our attention has been called by the Government Pleader is the decision of House of Lords, Brook v. Brook, (1861) 9 HLC 193 (F). In that case A and B British subjects inter-married; B died; A and C being both at the time lawfully domiciled British subjects, went abroad to Denmark, where, by the law, the marriage of a man with the sister of his deceased wife is valid, and were there duly, according to the laws of Denmark, married and the English Court held that the marriage in Denmark was void. Now, under the English law as obtaining at that time, no valid marriage could be contracted between a man and the sister of his deceased wife. This decision is nothing more than an enunciation of the well-known principle of international law that as far as the validity of the marriage is concerned, the law that must be applied is the law domicilis and as far as the form of the marriage is concerned, the law that must be applied is lex loci contractus. It is clear that this principle of international law cannot be applied to our national polity and what must not be forgotten or overlooked is that a Province or a State in India is not an international personality. It is only when we are" dealing with two international personalities that the question of conflict of laws arises and the principle of international law has to be applied. 13. Our attention was drawn by the Government Pleader to the observations in the judgment at pp. 212, 213, where various decisions have been referred to where the same principle was applied as between England and Scotland. Now, in order to understand these decisions, one must look to the background of the history of England and Scotland. Although there was union between England and Scotland far back in history, England and Scotland have always maintained separate systems of law and therefore from that point of view it may be possible to look upon England and Scotland as constituting independent countries for the purpose of divorce, and Scotland by its own system of law has recognised marriages, which England has not and vice versa and there has been the same difference with regard to the system of divorce. But it would be entirely incorrect to suggest that the relationship between the different States in India or relationship between the States and the Union is the same as the relationship between Scotland and England. There is neither that historical background in India nor does our Constitution recognise any separate system of law as far as the different States are concerned. 14. In our opinion, therefore, the accused could not be prosecuted under the provisions of Section 4 (b) inasmuch as we are of opinion that that sub-section is ultra vires of the Bombay Legislature. The learned Magistrate was, therefore, right in acquitting him though not for the reasons stated by him. In the result the appeal preferred by the State will be dismissed. 15. Appeal dismissed.

Author: Chagla

The State vs Narayandas Mangilal Dayame on 3 July, 1957

Bombay High Court

I IN THE HIGH COURT OE KARNATAKA AT BANGALORE DATED T2113 THE 16"" DAY OF NOVEMBER ?.:iG'}EO BEFORE THE HON'BLE MRJUSTZCE HULUVAD_1§v:(¥:i.RAM'ESlri«i _ CRIIVIENAL APPEAL ]?;$1;O.6:'92E.('fiI§' zeioiry BETWEEN: 4 Rajashekar Shivalingappa N aregii'a1.,_ V' _ Major, Shankar Transport, _ C/O Shree Raja Rajeshw.ar:i«-- & 41:0,, A ~ Kiran Compiex, 3"; Main ROad',:. " -- Chamarajendrapet, _ ' - i '' Eangaiore--569Oi._8V. -A A AAPPELLANT (By zigesh, Advs.) é.\....1'.l..1..3,.3 Bi':§m1;wiRaj, EEEEE ~. , 1':.'.I,ajOr,'S/.O.41izie Shri Byrappa, 'I<.U~UigEfl'§.<:0ad§; Ke4n1panin_gjEna Hally, Nelarnéirigala, ' " " ~ V' AAByanga10'r'e District. ..RESPONDENTThis Criminal Appeal is flied under Section 378(4) Of " -":Cr.¥'.C. praying to set aside the judgment dt.l2.05.2010 passed by the XII Addl. CMIVL, Bangalore, in C.C.NO.28659/2002 -- 2 acquitting the respondent/accused for the offence P/U/S.l38 of N .I.Act. This Criminal Appeal coming on for admission the Court delivered the following: ' " JUBGMENT This appeal is by the of XII Addi. CMM, BangalQre.4_ in C*~.C.Nc>_286a.9f2(){)2";iatcd*_ 12.5.2010 in dismissing the icbniplaintiiiandi'acqugitting the accused. I A A it it complainant, the accused was a supplieriof' to the complainant from past several years t'oyvar'ds vvhich, the complainant used to pay cash toptihe ac.coui'1t._ of the accused from his account. As security for H rel'-aridii"of_"_v.bala'Iiice cash advance, the accused had issued a cheiqu.e"'*dVravvin on Oriental Bank, Yelahanka Branch. When the coinplaiinant demanded the accused for refund of unadjusted advance, the accused instructed the complainant to fill up the cheque for Rs.3,00.{)00/--, which on presentation, came to be t'?%'"' 3 dishonoured for insufficient funds. Since, even after issuance of legal notice the accused failed to make the payme-.r__1_t, the complaint came to be fiied. The triai Court, enquiry, has dismissed the complaint relying upon of the Apex Court in Krishna J anarz:ihan:iB'h.at'7_s case": Iepoi'te§§_ in (2008)2 scc (Cr!) 1.66. Of co;;rs_e, the'-tiial. Courttngfs n0te<;iiit'i1at"'cV the presumption under Sectiioni' 139 ii of the Negotiable Instruments Act can be :i_iifa.wn'i_on§_y.ii>&heni't'he accused has failed to rebut the 13resI:.n'1Pti0i'~~:* . V nip t1iei:itief¢i._siion4i'reported in AIR 2010 SC 1898 in the case of hriohan, the Apex Court while reversing th'é':.:f{at§%Q: iasid don/'riv---i-n."Krishna Janardhan Bhat's case has held 1.AS{'§TL}ti()i'3 139 of the Negotiable instruments Act issuance. 'cheque is presumed to be towards a legaliy ppenforceable debt and the negative onus is on the accused to C =._ire»hut the presumption not by mere explanation, but he has to " V-offer proof of explanation. ; K: 4. _I_n View of the changed legal position, the matter requires reconsideration by the trial Court. Accordinglygeppeal is allowed and the impugned order is set aside. remitted to the trial Court for disposaE__of vl1"n._ accordance with law, in the light theji;idgrrie.r1t'-referredgto above. Parties are directesliil to lepp§.e.';'.rl"E2e'fore--., the trial Court on 06.12.2010 andit is forthe 'tijialfiotlrt ..:(_j{slpose of the matter within three"rii'o1iths~':there;:fte2f.V (ll)fi(:l,lCE!VV_T0 send back the records. S&i7ZE Judge

Author: Huluvadi G.Ramesh

Rajashekar Shivalingappa ... vs B Prithwi Raj S/O Late Shri Byrappa on 16 November, 2010

Karnataka High Court

Central Information Commission ***** No.CIC/OK/A/2008/00280 Dated: 18 July 2008 Name of the Appellant : Shri Abdul Moid Khan S/o Late Shri Abdul Raunf Khan R/o 113 Baisee Ki Masjid Khandari Bazar, Kaisar Bagh, Lucknow, Name of the Public Authority : Northern Railway Background: Shri Abdul Moid Khan of Lucknow filed an RTI-application with the Public Information Officer, Loco Workshop, Northern Railway, Lucknow, on 7 September 2007, seeking photocopies of nine documents. 2. The PIO vide his letter dated 19 November 2007 replied to his RTI- application. Not satisfied with the reply of the PIO, the Appellant filed an appeal with the first Appellate Authority on 29 October 2007 and then approached the Central Information Commission with a Second Appeal on 10 January 2008. 3. The Bench of Dr. O.P. Kejariwal, Information Commissioner, heard the matter on 11 July 2008. 4. Shri Om Prakash, SPO, represented the Respondents. 5. The Appellant, Shri Abdul Moid Khan, was neither present nor send any representative for the hearing. Decision: 6. In the absence of the Appellant, the Commission heard the Respondents and noted that they had treated the RTI-application as one of a personal grievance of the Appellant and had replied to him in time telling him that his case had been turned down. The Appellant, on the other hand, had asked for photocopies of the nine documents which he had specified in his RTI-application of 7 September 2007. The Commission now directs the Respondents to go over the RTI-application and reply point-wise to the points raised therein. They are directed to provide photocopies of all the documents asked for in the RTI- application, subject of course to the provisions of Section 8 of the RTI-Act. This they may do by 14 August 2008. 7. The Commission ordered accordingly. Sd/- (O.P. Kejariwal) Information Commissioner Authenticated true copy: Sd/- (G. Subramanian) Assistant Registrar Cc:

Shri Abdul Moid Khan vs Northern Railway on 18 July, 2008

Central Information Commission

Gujarat High Court Case Information System Print SCA/3586/1999 9/ 11 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 3586 of 1999 For Approval and Signature: HONOURABLE MS.JUSTICE H.N.DEVANI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= MUMAN YUSUF RASUL HAFIJI & 3 - Petitioner(s) Versus STATE OF GUJARAT & 2 - Respondent(s) ========================================================= Appearance : MR SANJAY M AMIN for Petitioner MR AJ DESAI, ASSTT. Government PLEADER for Respondents : 1 - 2. MR PRAKASH K JANI for Respondent : 3, ========================================================= CORAM : HONOURABLE MS.JUSTICE H.N.DEVANI Date : 04/10/2007 ORAL JUDGMENTBy this petition, the petitioners challenge the order dated 25th September, 1995 passed by the Additional Mamlatdar & Agriculture Land Tribunal, Patan (Annexure ?SE??), the order dated 26th September, 1997 passed by the Deputy Collector, Land Reforms, Mehsana (Annexure ?SF??) and the order dated 22nd December, 1998 passed by the Gujarat Revenue Tribunal in Revision Application No.TEN/BA/53/1998 (Annexure ?SG??). The facts of the case are that the respondent No.3 ? Agricultural Produce Market Committee, Patan decided to establish a Sub-Market Yard at Village Ranuj for the benefit of the farmers in the surrounding villages. For the purpose of establishing the Marketing Yard, the respondent No.3 purchased several parcels of land in Village Ranuj, including the lands bearing Survey No.1338 admeasuring Acres 4 ? 30 Gunthas and Survey No.1339 admeasuring Acre 1 ? 30 Gunthas (hereinafter referred to as ?Sthe subject lands??), after obtaining permission under Section 63 of the Bombay Tenancy & Agricultural Lands Act, 1948 (the Tenancy Act) from the Deputy Collector, Land Reforms, Patan. Thereafter, the respondent No.3 had plotted out the land of the aforesaid two survey numbers into thirty-six plots, for the purpose of being allotted to the members of the Sub-Market Yard proposed to be established at the relevant time. However, after purchasing the said land, the respondent No.3 had to pass through difficult times and therefore, could not establish a Sub-Market Yard at Ranuj. Therefore, the State Government had, at the instance of respondent No.3, issued appropriate notification de-notifying the said Sub-Market Yard under the provisions of the Gujarat Agricultural Produce Markets Act, 1963. Thereafter, the respondent No.3 decided to sell the subject lands by public auction and also prescribed certain conditions for such auction. The auction had taken place on 13.7.1986 for the sale of the aforesaid two survey numbers. The petitioners were interested in purchasing the lands bearing Survey Nos.1338 and 1339 of Ranuj Village as they were already owning, possessing and cultivating the lands bearing Survey Nos.1336 and 1337, which are situated just adjoining the aforesaid two survey numbers of respondent No.3. The offer made by the petitioners at the auction was accepted and on payment of the amount of sale consideration of Rs.3,42,500/-, the respondent No.3 executed a regular sale deed on 25.11.1987 in favour of the petitioners. It is the case of the petitioners that, after purchasing the said lands, they have invested considerable amount of moneys in improving the said land and in rendering it cultivable as it had remained neglected for quite a long time after it was purchased by the respondent No.3. The petitioners had also constructed small farm houses in the said land for keeping agricultural implements and cattle, and to provide shelter to the agricultural labourers. It is the case of the petitioners that the petitioners had settled on the subject lands and have been cultivating the said lands and earning their livelihood out of the agricultural produce derived from the said lands. After a period of about seven years from the date of purchase of the subject lands, the Mamlatdar & Agriculture Lands Tribunal, Patan served a notice dated 14.6.1994 on the petitioners calling upon them to show cause as to why proceedings under Section 84C should not be initiated for breach of conditions of Section 63 of the Tenancy Act. In response to the notice, the petitioners appeared before the Additional Mamlatdar and ALT, Patan and pointed out that the subject lands had been purchased by them in the year 1987, and that, considerable amount of money had been expended in improving the said lands. That, they were agriculturists within the meaning of the Tenancy Act, and as such, were even otherwise entitled to purchase the subject lands; that they had not committed any breach of the conditions of Section 63 of the Tenancy Act; that if there is any default on part of the respondent No.3 ? Market Committee, the petitioners cannot be punished for such breach; that the Mamlatdar & ALT had no jurisdiction to initiate proceedings under Section 84C of the Tenancy Act after a lapse of seven years. Vide the impugned order dated 25.9.1995, the Additional Mamlatdar & ALT, Patan held that there was breach of the conditions of the order dated 2.6.1980 and accordingly, directed that the subject lands be forfeited to the Government under Section 84C of the Tenancy Act. The petitioners carried the matter in appeal before the Deputy Collector, Land Reforms, Mehsana, who by the impugned judgement and order dated 26.9.1997, dismissed the appeal. Being aggrieved by the aforesaid judgement and order, the petitioners preferred a Revision Application before the Gujarat Revenue Tribunal (Tribunal). The Tribunal, by its judgement and order dated 22.12.1998, dismissed the Revision Application and confirmed the orders passed by the authorities below, giving rise to the present petition. Heard Mr.Sanjay Amin, learned advocate for the petitioners, Mr.A.J.Desai, learned Assistant Government Pleader for the respondents No.1 and 2 and Mr.P.K.Jani, learned advocate for the respondent No.3. Mr.Sanjay Amin, learned advocate for the petitioners vehemently assailed the impugned orders. It was submitted that it is settled legal position that suo motu powers under Section 84C of the Tenancy Act are required to be exercised within a reasonable time, however, in the present case, the registered sale deed was executed in November, 1987, whereas the proceeding under Section 84C was initiated in 1994, after a lapse of almost seven years, which by any stretch of imagination cannot be said to be a reasonable time. In support of his contention, the learned advocate placed reliance upon the decision of the Apex Court in the case of Mohamad Kavi Mohamad Amin v. Fatmabai Ibrahim, (1997)6 SCC 71 as well as in the case of Dajibhai Kanjibhai Tandel v. The Mamlatdar and Agricultural Lands Tribunal, Pardi, rendered in Civil Appeal No.4917 of 1984 on 27.8.1996. It was next contended that, in any case, the breach of condition of the Order under Section 63 of the Tenancy Act was committed by the respondent No.3. The petitioners were bonafide purchasers of the subject lands, who had purchased the land in a public auction, which was held after following due procedure. That, due to default on part of the respondent No.3, the petitioners should not be penalized. It was submitted that, in any case, the petitioners are agriculturists and therefore, are entitled to purchase the subject lands under the provisions of the Tenancy Act, hence, on an overall view of the matter, the respondent authorities were not justified in setting aside the transfer in favour of the petitioners and in forfeiting the lands to the Government. It was, accordingly, urged that the petition be allowed and the impugned orders be set aside. On the other hand, Mr.A.J.Desai, learned Assistant Government Pleader supported the impugned orders. It was submitted that permission to purchase the agricultural lands had been granted to the respondent No.3 Market Committee under the provisions of Section 63 of the Tenancy Act, subject to certain conditions. The respondent No.3 ? Market Committee had, in breach of the said condition, sold the lands to the petitioners, without prior permission of the Collector. The auction sale had taken place on 13.7.1986, whereas permission to sell the lands was sought for by the Market Committee in February 1989. That the breach of condition was committed in 1986, whereas permission for sale of lands was sought for as late as in 1989. Immediately thereafter, vide order dated 1.1.1990, the Collector had directed that proceedings under Section 84C be initiated. In the circumstances, it cannot be said that there was any delay in the initiation of proceedings under Section 84C of the Act so as to render the proceedings invalid. It was submitted that there is no illegality or infirmity in the impugned orders so as to warrant any interference by this Court. Mr.P.K.Jani, learned advocate for the respondent No.3 has supported the case of the petitioners. Upon perusal of the record of the case, it is apparent that, by an order dated 2.6.1980, the respondent No.3 ? Market Committee had been granted permission to purchase the subject lands for the purpose of establishing a Sub-Market Yard under the provisions of Section 63 of the Tenancy Act. Thereafter, as the Market Committee was not in a position to utilize the said lands, the same were de-notified and were put up for auction on 13.7.1986. The petitioners, who were owners of the lands adjoining the subject lands, took part in the auction and their offer was accepted and a regular sale deed was executed on 25.11.1987 in favour of the petitioners upon payment of the sale consideration. Pursuant thereto, the petitioners incurred considerable expenditure in rendering the lands cultivable as well as in constructing the farm houses for keeping agricultural implements and to provide shelter to the agricultural labourers. Subsequently, the Market Committee sought permission to transfer the subject lands in February 1989, which was rejected by the Collector, Mehsana, by an order dated 1.1.1990. By a communication dated 1.1.1990, the Collector also issued directions to initiate proceedings under Section 84C of the Tenancy Act in respect of the subject lands. Pursuant to the aforesaid directions of the Collector, the proceedings under Section 84C were initiated vide show cause notice dated 14th June, 1994. Thus, it is apparent that even after the breach of condition came to the notice of the respondent authorities, suo motu inquiry under Section 84C of the Tenancy Act was initiated after a delay of more than four years. In the case of Mohamad Kavi Mohamad Amin v. Fatmabai Ibrahim (supra), the transfer had taken place in the year 1972 and suo motu inquiry was started by the Mamlatdar in September, 1973. Referring to its earlier decision in the case of State of Gujarat v. Patel Raghav Natha, the Supreme Court observed that where no limit is prescribed for exercise of a power under a statute, it does not mean that it can be exercised at any time; such power has to be exercised within reasonable time. In the facts of the said case, the Court held that suo motu power under Section 84C of the Tenancy Act had not been exercised by the Mamlatdar within a reasonable time. A similar view was taken by the Supreme Court in the case of Dajibhai Kanjibhai Tandel (supra). In the said case, the transfer had taken place in 1972 and the suo motu inquiry in exercise of powers under section 84C was initiated in the year 1975. Following its decision in the case of Mohamad Kavi Mohamad Amin (supra), the Supreme Court held as follows : ?SSo far as the facts of the present case are concerned, we are satisfied that it cannot be held that the Mamlatdar exercised the power under Section 84C of the Act within a reasonable time. It need not be pointed out that because of delay, the purchaser is likely to suffer irreparable injury because in the meantime he makes investments over the lands in question. Accordingly, the appeal is allowed. The impugned orders are set aside.?? In the facts of the present case, the sale of the subject lands took place in the year 1986; permission to sell the lands was sought for by the respondent No.3 in 1989; the application seeking permission to transfer the subject lands was rejected vide order dated 1.1.1990 and the Collector also issued instructions to initiate inquiry under Section 84C of the Tenancy Act by a communication dated 1.1.1990; and the inquiry under Section 84C was initiated by a notice dated 14.6.1994. Hence, if considered from the date of the sale, the inquiry under Section 84C of the Tenancy Act has been initiated after a period of more than seven years. Even after the Collector issued instructions to initiate inquiry under Section 84C by communication dated 1.1.1990, the show cause notice under Section 84C of the Tenancy Act was issued as late as on 14.6.1994, after a delay of more than four years. In the meanwhile, the petitioners had made considerable investments in the subject lands, hence, because of the delay, the petitioners would suffer irreparable injury. Applying the principles laid down by the Apex Court in the aforesaid decisions, it cannot be said that the Mamlatdar and ALT has exercised powers under Section 84C within reasonable time. Therefore, the impugned orders cannot be sustained. In the result, the petition succeeds and is allowed. The impugned order dated 25th September, 1995 passed by the Additional Mamlatdar & Agriculture Land Tribunal, Patan (Annexure ?SE??), the order dated 26th September, 1997 passed by the Deputy Collector, Land Reforms, Mehsana (Annexure ?SF??) and the order dated 22nd December, 1998 passed by the Gujarat Revenue Tribunal in Revision Application No.TEN/BA/53/1998 (Annexure ?SG??), are hereby set aside. Rule is made absolute accordingly, with no order as to costs. [HARSHA DEVANI, J.] parmar*     Top

Author: Harsha Devani,&Nbsp;

Muman vs State on 21 March, 2011

Gujarat High Court

Gujarat High Court Case Information System Print LPA/64/2008 3/ 3 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No. 64 of 2008 In SPECIAL CIVIL APPLICATION No. 4856 of 2001 For Approval and Signature: HONOURABLE MR.JUSTICE V. M. SAHAI HONOURABLE MR.JUSTICE G.B.SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= STATE OF GUJARAT - Appellant(s) Versus BIPINCHANDRA PARSHOTTAMBHAI BHATT - Respondent(s) ========================================================= Appearance : MR NJ SHAH, ASSISTANT GOVERNMENT PLEADER for Appellant(s) : 1, MR MUKESH H RATHOD for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE V. M. SAHAI and HONOURABLE MR.JUSTICE G.B.SHAH Date : 17/03/2011 ORAL JUDGMENT (V.M.Sahai, J.) Sreeram. (G.B.Shah, J.)     Top (Per : HONOURABLE MR.JUSTICE V. M. SAHAI) 1. We have heard Mr.N.J.Shah, learned Assistant Government Pleader for the appellant and Mr.Mukesh H. Rathod, learned counsel for the respondent. 2. This Letters Patent Appeal has been filed challenging the judgment and order of the learned Single Judge dated 31.7.2007 passed in Special Civil Application No.4856 of 2001 and the award dated 19.10.2000 passed by the Labour Court, Jamnagar, in Reference L.C.J.No.963 of 1990 (old Reference L.C.R. No.563 of 1988). 3. Mr.N.J.Shah, learned Assistant Government Pleader has urged that the Labour Court has not recorded any finding with regard to from what period to what period, the respondent has worked for the period of 240 days, which was required to be recorded. 4. We have gone through the award. The Labour Court has recorded a finding that the within 18 months, the respondent has worked for 300 days, but it is not recorded as to from what date, he has started working. The learned Single Judge, has recorded a finding on the basis of Exh.41 - attendance register and has held that the respondent was working from 1.1.1986 to 29.12.1986 which comes to 363 days. We do not find that there is any mention or discussion about Exh.41 in the award of the Labour Court. Before the learned Single Judge also, Exh.41 was also not brought on record. However, the learned counsel for the respondent has urged that Exh.41 was produced by the counsel for the respondent before the Single Judge and the learned Single Judge has taken note of it. We are of the opinion that it was not open to the learned Single Judge to consider any document which was not on the record of the case. Had the respondent filed Exh.41 on record of the writ petition, it may have been suitably replied by the appellant. Further, the Labour Court was required to consider Exh.41 or other material on record for arriving to a conclusion that the respondent had completed 240 days in the last preceding year. It was not open to the learned Single Judge to record a finding in the writ petition regarding a document which was not on record. In our opinion, the order of the learned Single Judge as well as the award of the Labour Court dated 19.10.2000 cannot be maintainable and the matter is required to be remanded back to the Labour Court. 5. In the result, the appeal is allowed. The order of the learned Single Judge dated 31.7.2007 passed in Special Civil Application No.4856 of 2001 and the award dated 19.10.2000 passed by the Labour Court, Jamnagar in Reference L.C.J. No.963 of 1990 (old Reference L.C.R.No.563 of 1988) are hereby set aside. The matter is remanded back to the Labour Court, Jamnagar to consider the evidence available on record of the case and to decide the case afresh in accordance with law, preferably within a period of four months from today.

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

State vs Bipinchandra on 17 March, 2011

Gujarat High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM Bail Appl..No. 7231 of 2009() 1. SAIDALIKUTTY, AGED 42 YEARS, ... Petitioner Vs 1. STATE OF KERALA, REPRESENTED BY S.I. OF ... Respondent For Petitioner :SRI.C.V.MANUVILSAN For Respondent :PUBLIC PROSECUTOR The Hon'ble MR. Justice K.T.SANKARAN Dated :10/12/2009 O R D E R K.T.SANKARAN, J. ------------------------------------------------------ B.A. NO. 7231 OF 2009 ------------------------------------------------------ Dated this the 10th day of December, 2009 O R D E R Apprehending arrest on an accusation of having committed non-bailable offence in Crime No.112 of 2009 of Karuvarakundu Police Station, Malappuram District, the petitioner has filed this application for anticipatory bail under Section 438 of the Code of Criminal Procedure. 2. Learned Public Prosecutor submitted that, after completing investigation, charge was laid in the case on 31.1.2009 before the Judicial Magistrate of the First Class I, Manjeri. Leaving open the right of the petitioner to move for regular bail, this Bail Application is closed. (K.T.SANKARAN) Judge ahz/ 

Saidalikutty vs State Of Kerala on 10 December, 2009

Kerala High Court

ORDER M. Karpagavinayagam, J. 1. Detenu himself is the petitioner herein. Challenging the order of Detention, dated 25.9.2004, branding him as a 'Gooda', this Habeas Corpus Petition has been filed, on the ground that there is a defective translation. 2. Heard the learned counsel for the petitioner and the learned Additional Public Prosecutor, appearing for the respondents. 3. In page 133 of the Booklet, the Arrest Report would contain Column 6, as to how disposed of, with date and hour of disposal. In the said column, it is mentioned as "sent to remand". 4. It is pointed out by the learned counsel for the petitioner that while the said version is translated from English to Tamil in page 134 in column 6, it is not correctly translated, as the date 13.9.2004 mentioned in Tamil column does not find place in English column. 5. Admittedly, the said defective translation would make the detention order vitiated. Hence, this Habeas Corpus Petition is allowed and the order of detention impugned herein is quashed. Consequently, the detenu, namely, Mannu @ Boopathy is ordered to be set at liberty forthwith, unless he is required in connection with any other case.

Author: M Karpagavinayagam

Mannu @ Boopathy vs The Secretary To Government, ... on 24 January, 2005

Madras High Court

ORDER The Court 1. In respect of the asst. yrs. 1982-83, 1983-84 and 1984-85 the petitioner has filed application under s. 256(1) praying for questions of law to be referred to this Court by the Tribunal. 2. A contention has been raised on behalf of the respondents, while relying upon Nawal Bihari Lal Goel vs. CIT and Kwality Restaurant and Ice Cream Co. vs. CIT , to the effect that a single reference application under s. 256(2) is not maintainable in respect of three assessment years. 3. Learned counsel for the petitioner has relied upon the decision of Single Bench of this Court in the case of CIT vs. ITAT as well as the decision of the Supreme Court in the case of K. G. Khosla and Co. (P) Ltd. vs. Dy. Commissioner of Commercial Taxes, Madras Division Madras, 17 STC 473 (SC) and has contended that when a single order is passed by the Tribunal under s. 254 dealing with number of assessment years, then a single application under s. 256(1) and thereafter under s. 256(2) is maintainable. 4. In this question was squarely raised by the Department when in connection with 5 different appeals, which were disposed of by a common order, a single application under s. 256(1) had been filed. The Tribunal stated that the same was not maintainable. It was the case of the Department in a petition filed under Art. 226 of the Constitution that when by a common order a number of appeals are disposed of, only one application under s. 256(1) was maintainable. Prithvi Raj. J. examined this question at length and after referring to a Full Bench Decision of the Lahore High Court in the case of Mst. Lachhmi vs. Mst. Bhulli AIR 1927 Lahore 289 (FB), which was approved by the Supreme Court in the case of Narhari vs. Shankar , came to the conclusion that the contention of the Department was correct and a single reference application was maintainable. In support of this, the learned Single Judge also relied on yet another decision of the Supreme Court in the case of K. G. Khosla (supra). In K. G. Khosla's case, four revision petitions had been filed before the High Court, two by the assessed and two by the State in respect of two assessment years. The Supreme Court held that two appeals could be filed even though there were four revision petitions which were disposed of by a common judgment. 5. In Nawal Bihari Lal Goel's case (supra) it was never seriously contended this only one reference application was maintainable. This Court observed that it was a practice that separate applications have to be filed for separate years. It seems that the earlier judgment of Prithvi Raj, J. was not brought to the notice of the Division Bench. In Kwality Restaurant's case (supra) it also appears that a concession was made that more than one application had to be filed if the common order disposed of a number of appeals. Nevertheless, the Division Bench observed that on a correct interpretation of s. 256 it was possible to contend that a single application was maintainable against a common order passed under s. 254 of the Act. Once again attention of the Bench was not drawn to the earlier decision of Prithvi Raj, J. in . 6. In our opinion, the matter requires a detailed examination and in order that there may be no conflict of judicial opinions, it will be appropriate that this question, namely whether a single application under s. 256(1) and/or 256(2) is maintainable when the Tribunal has disposed of, by a common order, appeals pertaining to more than one year and/or of different assesseds, is decided by a Full Bench. 7. We, therefore, direct that the papers be placed before Hon'ble the Chief Justice for appropriate orders for placing this petition before a Full Bench for decision on the aforesaid question. As this question may arise in a number of cases, the matter should be decided as expeditiously as possible.

Smt. Kusum Ansal vs Commissioner Of Income Tax on 16 January, 1991

Delhi High Court

1 cri-appeal-674-89 pdp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 674 OF 1989 WITH CRIMINAL APPLICATION NO. 1304 OF 1989 The State of Maharashtra (At the instance of Shri Indra Prakash Lal, Assistant Collector of Central Excise and Customs (Head Quarters), Preventive Bombay II Collectorate, 7th Floor, Piramal Chambers, Jijibhoy Lane, Lalbaug, Bombay - 400 012. .. Appellant (Org. Complainant) Vs. 1. Harshad Vaherbhai Patel (Indian Passport No.B-2540721) 4, Sathe Building, as well as 4 Bhaskar Bhavan, Matunga Bombay - 400 019. 2. Vijay Jivram Kothari Gupte Niwas, Flat No.2, IInd Floor, Bhau Daji Road, Matunga, Bombay - 400 019. 3. Parshuram Krishna Kamble Rajan Sheril Bauh (Caster Road) Bandra (West). (Appeal is dismissed against respondent no.3 vide court's order dated 16/3/1998) .. Respondents (Org. Accused ) ::: Downloaded on - 09/06/2013 17:04:38 ::: 2 cri-appeal-674-89 Mrs. Anuradha Mane for appellant-UOI. Mr. V. G. Pradhan, Senior Advocate with Mr. Jayant Gohil for respondent no.1. Mrs. M. M. Deshmukh, APP for State. CORAM: B. H. MARLAPALLE & U. D. SALVI, JJ. (U.D. SALVI, J.) (B. H. MARLAPALLE, J.) ::: Downloaded on - 09/06/2013 17:04:38 ::: MARCH 10, 2011. ORAL JUDGMENT( PER B. H. MARLAPALLE,J.) 1. This appeal filed by the State of Maharashtra through the Assistant Collector of Central Excise and Customs is directed against the order of acquittal passed in Sessions Case No. 1303 of 1988 by the learned Additional Sessions Judge for Greater Mumbai on 2/2/1989. The present respondents came to be tried in the said case for the offences punishable under Section 120-B of IPC read with Sections 20, 23 and 29 of the N. D. P. S. Act, 1985 and Sections 135 (i)(a) and 135 (i)(b) read with Section 135(1)(ii) of the Customs Act, 1962. 2. As per the prosecution case, on 31/7/1987 Shri Prabhakar Karanjekar (PW 6), who was working as the Superintendent of Central ::: Downloaded on - 09/06/2013 17:04:38 ::: 3 cri-appeal-674-89 Excise with his office at Piramal Chambers, Lalbaug, had received an information at about 2.45 p.m. from a known and reliable informant that a huge quantity of Hashish was likely to be transported in a tempo bearing No. MMS-432 from C.S.T. Road, Kurla to Mumbai for export purposes. The informant also had conveyed that the said tempo would be found at a place near Maha Auto Agency on C.S.T. Road at Kurla and that one Ambassador Car would follow and take away the said tempo. On receipt of the said information, Shri Karanjekar followed the due process of law and set out to lay a trap along with other officers like Shri Uttamrao Jadhav - PW 1 and others after obtaining the approval from the Assistant Collector. These officers left from office at about 3.30 p.m. on 31/7/1987 and proceeded towards the destination and when they reached the junction of C.S.T. Road and Agra Road at Kurla at about 3.55 p.m. they stopped their cars near the junction and kept a watch on the movements of the vehicles. After some time, they spotted the tempo bearing No. MMS 432 parked near Maha Auto Agency and it was being followed by an Ambassador Car bearing Registration No. MMH - 1640. They encircled both the vehicles and brought it to the Petrol Pump where the Assistant Collector was waiting and then these two vehicles along with the accused were taken to the office at Lalbaug. They were asked to open the tempo ::: Downloaded on - 09/06/2013 17:04:38 ::: 4 cri-appeal-674-89 and PW 1 noticed that it had 26 cartons and the substance inside each carton had a typical smell and, therefore, they suspected that it was a contraband. From two cartons, samples were drawn and they were found to be slabs of Hashish. All these cartons were unloaded and taken to the 8th Floor Office of Central Excise. Two panchas were called for drawing seizure panchanama. All the 26 cartons were opened and every slab were weighed and samples were drawn. The whole process was completed by about 11 p.m. and during the course of this search and seizure, it was noticed that the registration papers of the tempo were found in the car. The car was driven by accused no.1 - Shri Harshad Patel, whereas the tempo was driven by accused no.3 - Parshuram Kamble. During the course of investigation, accused no.2 was also picked up on the ground that he had conspired the offence to purchase and export the contraband along with accused nos.1 and 3. The statements of all the three accused under Section 108 of the Customs Act were recorded and during the personal search of accused no.1, cash amount of Rs.22,000/- was recovered from him and at the same time, during the personal search of accused no.3, some documents and driving license were recovered from him. The panchanama at Exh. 22 was drawn at about 11 p.m. in the presence of two independent pachas, PW 2 - Shrikant Patil and Shri Vishnu Satam. On ::: Downloaded on - 09/06/2013 17:04:38 ::: 5 cri-appeal-674-89 completion of the investigation, the charge-sheet was filed. 3. During the trial, the prosecution examined in all seven witnesses and PW 7 - Shri Sundersingh Dabola, who was the driver and near relation of accused no.3 turned hostile. Shri Satam was not examined as a witness and in support of the panchanamat at Exh. 22, only PW 2 - Shrikant Patil was examined. He was the only independent witness and the remaining five witnesses were the officers of Central Excise. PW 1 - Uttamrao Jadhav was Inspector, PW 3 - Shri Ramchandra R. Sapre, PW 4 - Karamoottil Philip, PW 5 - Shri Kashinath Joshi and PW 6 - Shri Prabhakar Karanjekar were the Superintendents from Central Excise. The accused claimed that they were innocent and they were roped in the case without any basis or evidence. The prosecution case was in two parts, namely, (a) the physical possession of Hashish by accused nos.1 and 3 on 31/7/1987 and its seizure by the team of the officers led by PW 6 and PW 1 and (b) the conspiracy at the instance of accused no.2 and with the involvement of accused nos.1 and 3. 4. The charge of conspiracy was solely based on the statements recorded under Section 108 of the Customs Act. The trial court noted that ::: Downloaded on - 09/06/2013 17:04:38 ::: 6 cri-appeal-674-89 these statements could not be relied upon for the reasons, namely, (a) that the accused were in illegal detention when the statements were recorded, (b) the statements were recorded under duress and (c) the said statements were retracted at the earliest possible occasion when the accused were presented before the competent court i.e. on 4/8/1987. On the point of illegal detention, the evidence of PW 1 - Uttamrao Jadhav, PW 3 - Ramchandra Sapre, PW 4 - Karamoottil Philip and PW 6 - Shri Prabhakar Karanjekar has been considered by the trial court at length. ig In their examination-in-chief, PW 1 and PW 6 as well as PW 3 had denied that the accused were in illegal detention from 31/7/1987 till 4/8/1987 when they were produced before the competent court for the first time. However, in their searching cross-examination, they admitted that they had received telegrams as well as letters from the family members of the accused alleging that the accused were kept in illegal detention from the night of 31/7/1987. The trial court, therefore, rightly held that from 31/7/1987 (evening) till the morning of 4/8/1987 all the accused were in illegal detention as they were not produced for remand within 24 hours before the competent court. PW 3 - Ramchandra Sapre admitted that telegram from Mrs.Suresha Patel, the wife of accused no.1, was received and it was stated in the same that on 31/7/1987 her husband was taken in custody in the ::: Downloaded on - 09/06/2013 17:04:38 ::: 7 cri-appeal-674-89 afternoon by the officers of Central Excise and was not produced before the Magistrate. This telegram was received on 2/8/1987. This witness also admitted to have received the second telegram from Mrs. Kothari on 2/8/1987 and it stated that her brother Vijay Kothari was taken away by the Customs Officers at about 9 p.m. on 31/7/1987. 5. When the accused were produced for remand, it was noticed that some of them had injuries on their persons and this was sufficient explanation to support the defence case that the concerned accused was assaulted and forced to make the statements which were recorded under Section 108 of the Customs Act. It was also proved from the evidence that all these statements were retracted when the accused were produced on 4/8/1987 before the competent court i.e. Metropolitan Magistrate. The report at Exh. 72-B submitted by the Chief Medical Officer of the concerned jail was considered by the trial court and was rightly relied upon, despite the opposition by the learned Special P. P. and the trial court, therefore, noted that the statements so recorded were not voluntary statements. For all these reasons, the trial court concluded that the retracted confessions, in the absence of any corroboration by an independent and unreliable witness, could not be relied upon and it did not ::: Downloaded on - 09/06/2013 17:04:38 ::: 8 cri-appeal-674-89 take the prosecution case any further. We are satisfied that the said finding does not suffer from any errors and, therefore, the charge of conspiracy, punishable under Section 120-B of IPC could not be proved against any of the accused. 6. Let us now proceed to consider the search and seizure of the contraband weighing about 824.780 kgs. This was allegedly recovered from the tempo bearing Registration No. MMS-432 and by the team of the Central Excise officers and in the presence of two independent witnesses, namely, PW 2 - Shrikant Patil and Shri Satam, who was not examined. We have perused the depositions of PW 2 - Shrikant Patil. As per him, Satam was his friend and both of them met Shri Shantaram Jadhav in Kamani Engineering Works factory in connection with employment possibilities for PW 2 as he was unemployed. Both of them met Shri Jadhav and while they were returning, they saw a crowd of people near the Maha Auto Petrol Pump. The Central Excise Officers were trying to search for panchas, but nobody was willing and, therefore, PW 2 and his friend Satam showed their willingness to act as panchas. They were shown the cartons in the tempo and were asked to accompany the team of Central Excise Officers to their office in Lalbaug (Piramal Chambers). The tempo as well as the ::: Downloaded on - 09/06/2013 17:04:38 ::: 9 cri-appeal-674-89 Ambassador Car was escorted and were brought to the office of the Central Excise along with the two vehicles used by the officers. All the 26 cartons were unloaded after the officers realized that they contained Hashish and were taken to the 8th Floor Office. Every carton was opened and each slab of Hashish was weighed. This continued for about four hours and PW 2 and his friend were all the time present and they were the witness for the entire operation. The panchanama at Exh. 22 was drawn in their presence and they had signed the same, after having understood the contents therein. The panchanama was drawn in English. PW 2 admitted that he had studied only upto 8th standard and in Marathi. On the total assessment of his evidence, the trial court discarded him as a unreliable witness. In his examination-in-chief, he stated that he wanted to meet Shantaram Jadhav as he was in search of a job and Mr. Jadhav would help him. He also admitted in the cross-examination that he was unemployed as on 31/7/1987. He was confronted with the panchanama at Exh. 22 in which his occupation was shown as service/employment. He had no explanation and proceeded to state that the said writing was not as per his information. He also admitted that he was engaged in the business of selling Vada Pav and was earning about 75 to 100 rupees per day and he used to do that business between 8 p.m. to 12 p.m. He also admitted that Satam was with ::: Downloaded on - 09/06/2013 17:04:38 ::: 10 cri-appeal-674-89 him during the relevant time, for the first and last time. He could not bring Satam to the court despite the fact that he was shown as a witness and PW 2 himself stated that he is neighbour and his friend. In the cross- examination of this witness, the defence counsel brought out sufficient material to point out that Satam was a known criminal and a history-sheeter who was externed on two occasions. In his examination-in-chief, this witness stated that he was present along with the Central Excise officers during the entire search and seizure operation which lasted till 11 p.m. on 31/7/1987 and the panchanama at Exh. 22 was drawn. In his cross- examination, he admitted that on the same day i.e. on 31/7/1987, he was engaged in his business of selling Vada Pav between 8 p.m. to 12 p.m. He also admitted that he was in the company of accused nos.1 and 3 continuously for a period of six hours or more on 31/7/1987. However, when he was called upon to identify accused no.1 in the court, he identified accused no.2 as accused no.1. But, after he re-entered the witness box in the second session, he changed his depositions and claimed that it was a mistake. The defence counsel in the cross-examination of this witness further brought out that in the appearance of accused nos.1 and 2 there was a marked difference in as much as one was of fair complexion whereas the other one was dark. There was marked height difference ::: Downloaded on - 09/06/2013 17:04:38 ::: 11 cri-appeal-674-89 between both of them. One was a baldy man whereas other one had sufficient hair on his head. It was also brought out in the cross- examination that he himself was convicted in a criminal case. We have meticulously gone through the reasons set out by the trial court while discarding PW 2 as a unreliable witness and we do not find any error in the same. 7. Once PW 2 is discarded as a reliable witness for the search and seizure operation, the evidence of the Central Excise officers alone would not meet the requirements of law in as much as the panchanama at Exh. 22 would not inspire confidence. The trial court did not stop here alone and proceeded to examine other attending circumstances. It was claimed by the prosecution that the registration papers of the tempo bearing Registration No. MMS-432 were recovered from the Ambassador Car bearing Registration No. MMH-1640. The prosecution did not take any further steps to locate the real owner of the tempo and the further connection of accused nos.1 and 3 for the same vehicle. It was surely possible for the prosecution to find out as to how the said vehicle (tempo) came in the possession of either accused no.1 or accused no.3 who was driving it and how the registration papers were recovered from the car ::: Downloaded on - 09/06/2013 17:04:38 ::: 12 cri-appeal-674-89 which was driven by accused no.1 at the relevant time. In addition, the evidence of PW 2, PW 3 and PW 6 suffered from contradictions on material points. Their evidence was not consistent. The prosecution also did not care to examine any witness from the Petrol Pump when it was allegedly working at the relevant time. The trial court also noted that PW 2 and his companion Satam were the residents of an area close to the Central Excise office at Lalbaug and it was difficult to believe that he was available at the relevant time near the Petrol Pump as an independent witness, unless he was brought by the Central Excise officers from Lalbaug. So as to connect accused no.1 with the tempo in the incident of 31/7/1987, the prosecution relied upon the evidence of PW 1 alone. He had stated that he had seen accused no.1 and accused no.3 going together in the Ambassador car and thereafter at some stage the accused no.1 handing over the key to accused no.3. However, there was no corroboration to this evidence of PW 1. The credibility of the evidence of PW 1 - Uttamrao Jadhav and PW 6 - Prabhakar Karanjekar was found to be doubtful and in our opinion rightly so. 8. To conclude, we are satisfied that the reasoning set out by the trial court in support of the impugned acquittal order is based on the proper ::: Downloaded on - 09/06/2013 17:04:38 ::: 13 cri-appeal-674-89 appreciation of the evidence adduced by the prosecution in support of its case and it does not call for any reconsideration. The trial court has not committed any error in acquitting the accused. 9. Consequently, this appeal must fail and the same is hereby dismissed. Bail bonds of all the accused stand cancelled. 10. Criminal Application No. 1304 of 1989 does not survive and it stands disposed as such.

Head Quarters vs Harshad Vaherbhai Patel on 10 March, 2011

Bombay High Court

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

Central Government Act

JUDGMENT A.K. Mathur, C.J. 1. The brief facts which are necessary for disposal of the instant appeal are that a winding up petition under sections 433. 434 and 439 of the Companies Act. 1956 was filed by ICICI Limited Company (hereinafter referred to as ICICI) for winding up of M/S Maxlux Glass Private Limited (hereinafter referred to as Company). The Company was incorporated under the provisions of the Companies Act, 1956 as a private Company limited by shares. The authorised share capital of the Company is Rs. 100, 100,000.00 divided into 10,000.000 share of Rs. 10/- each. The issued and subscribed capital of the Company is Rs. 70,130,360.00 made up of equity shares of Rs. 10/- each fully paid up. The Company carries on business of manufacturing of different kind of glass article. The Company was indebted to the petitioner in the sum of Rs.4,75,03.044/- as on 15th August. 1999 on account of money lent and advanced by the petitioner and not repaid by the Company. The petitioner claimed interest on and from 16th August. 1999 at the agreed rate. The petitioner granted loan to the Company from lime to time for the purpose of meeting the cost of the project of the Company for manufacture of glass shell at the Ulberia Industrial Growth Centre. District Howrah. West Bengal. On or about 12th May. 1990 the petitioner along with Industrial Development Bank of India (IDBI) and the Industrial finance Corporation of India Limited (IFCI) entered into a participation loan agreement for granting the Company a rupee loan of Rs. 164 lakhs(first loan) being the petitioner's share out of the rupee loans aggregating to Rs. 408 lakhs sanctioned by the petitioner in participation with IDBI and IFCI. The terms and conditions were mentioned in the loan agreement dated 12th December, 1990 as amended from time to time. In pursuance of the terms of the participation agreement the petitioner disbursed the entire loan of Rs.164 lakhs to the Company. The Company appropriated the same to its benefit. Another loan of sum of Rs. 57 lakhs (second loan) was also granted in pursuance of the aforesaid agreement. The Company in pursuance of the said agreement from time to time created securities in favour of the petitioner by executing deeds of hypothecation thereby hypothecating the moveable properties of the Company. The Company also furnished a personal guarantee of one Anup Kumar Saha as security for due repayment of the aforesaid loan in consideration of the loans granted by the petitioner to the Company. The petitioner found the securities created by the Company has since become inadequate to satisfy the claim of the petitioner. In pursuance of this loan agreement the Company was required to repay the principal amount of the aforesaid two loans in accordance with the schedule set out in each of the said two loan agreements and also to pay interest and other charges. However, inspite of repeated requests and demands made by the petitioner and assurance and undertakings given by the Company, the Company failed and neglected to pay the principle, interest and other charges due in respect of the aforesaid two loan agreements. The petitioner by communication dated 21st November, 1996 recalled the entire principal amount of the aforesaid two loans together with interest and all other charges due in respect thereof and called upon the Company to pay the amount which had become due and payable by the Company, inspite receipt of the aforesaid letter and several other demands the Company failed and neglected to pay the amounts. The petitioner had on their part granted the relief and concession as contained in the letter dated 16th December, 1997 to the Company. However, the Company failed to abide by the terms and conditions to repay as per the schedules to the said two loan agreements. On account of failure of the Company to repay, the concessions which were given to the Company were revoked by the communication dated 3rd August, 1999. 2. In this background the present winding up petition was filed by the petitioner and it was prayed that the Company namely Maxlus Glass Private Limited be wound up under the provisions of the Companies Act, 1956 and the official liquidator be directed to take possession of the assets and properties of the Company. In this winding up petition the Company moved an application (C.A. No. 100 of 2000) before the learned single Judge on 5th May, 2000 and prayed that the winding up petition filed by the petitioner be dismissed on the basis that secured creditors are not entitled to recover its debt other than before the Tribunal that is Debt Recovery Tribunal created under the Recovery of Debts due to Banks and Financial Institutions Act, 1993 (hereinafter referred to as the Act of 1993) and heavy reliance was placed by the applicant on the recent decision of the apex Court in the case of Allahabad Bank v. Canara Bank and the decision of this Court in the Case of Durgapur Steel Plant v. Kisan Jaiswal reported in 2000(1) CHN 21. 3. The learned single Judge after considering this application held that the winding up petition under the Companies Act is not an application under Recovery of Debts due to Banks and Financial Institution Act, 1993, and therefore the learned single Judge dismissed the application. However, the learned single Judge allowed time to file affidavit in opposition in the winding up petition and the petition for appointment of provisional liquidator. Liberty was also granted to file a reply thereto within two weeks thereafter. Aggrieved against this order passed by the learned single Judge dated 7 the August, 2000 the present appeal has been filed. 4. As against this the learned counsel for the petitioner/respondent has strenuously urged before us that a winding up petition is not in the nature of recovery of debts, it is a petition filed under the provisions of the Companies Act, 1956 for failure of the company to discharge its liabilities and it not in public interest to allow such companies to continue and do their business to the detriment of the public at large. It was also contended that the scope of the winding up petition is entirely different than that of the recovery of debts under the Act of 1993. Therefore, the learned counsel tried to distinguish the decision given in the case of Allahabad. Bank v. Canara Bank (supra) on the legal as well as on the factual aspects to which we shall advert to hereinafter. 5. Before dealing with the issue involved in this matter it will be relevant to quote here the sections of the Companies Act, 1956 which deal with the winding up of a Company. The relevant sections are sections 433 and 434 which read : "433. A Company may be wound up by the Court,- (a) If the company has, by special resolution, resolved that the company be wound up by the Court; (b) If default is made in delivering the statutory report to the Registrar or in holding the statutory meeting; (c) if the company does not commence its business within a year from its incorporation, or suspends its business for a whole year; (d) If the number of members is educed, in the case of a public company, below seven, and in the case of a private company below two: (e) if the Company is unable to pay its debts; (g) if the Court is of opinion that it is just and equitable that the company should be wound up. 434. (1) A Company shall be deemed to be unable to pay its debts- (a) if a creditor, by assignment or otherwise, to whom the company is indebted in a sum exceeding five hundred rupees then due, has served on the company, by causing it to be delivered at its registered office, by registered post or otherwise, a demand under his hand requiring the company to pay the sum so due and the Company has for three weeks thereafter neglected to pay the sum, or to secure or compound for it to the reasonable satisfaction of the creditor; (b) If execution or other process issued on a decree or order of any Court in favour of a creditor of the company is returned unsatisfied in whole or in part; or (c) If it is proved to the satisfaction of the Court that the company is unable to pay its debts, and, in determining whether a company is unable to pay its debts, the Court shall taken into account the contingent and prospective liabilities of the company. (2) The demand referred to in clause (a) of sub-section (1) shall be deemed to have been duly given under the hand of the creditor if it is signed by any agent or legal adviser duly authorised on his, or in the case of a firm, if it is signed by any such agent or legal adviser or by any member of the firm." 6. In this connection reference may also be made to the Recovery of Debts Due to Banks and Financial Institution Act of 1993. This Act was introduced by the Parliament with a view to expedite the adjudication of recovery of debts due to Banks and Financial Institutions and matters connected therewith or incidental thereto. The statement of objects and reasons of the Act reads as under : "Statement of Objects and Reasons--Banks and Financial Institutions at present experience considerable difficulties in recovering loans and enforcement of securities charged with them. The existing procedure for recovery of debts due to the Banks and Financial Institutions has blocked a significant portion of their funds in unproductive assets, the value of which detoriate with the passage of time. The Committee on the Financial System headed by Shri M. Narashimhan has considered the setting up of the Special Tribunals with special powers for adjudication of such matters and speedy recovery as critical to the successful implementation of the Financial sector reforms. An urgent need was, therefore, felt to work out a suitable mechanism through which the dues to the Banks and Financial Institutions could be realised without delay. In 1981 a Committee under the Chairmanship of Shri T. Tiwari had examined the legal and other difficulties faced by Banks and Financial Institutions and suggested there medical measures including change in law. The Tiwari Committee had also suggested setting up of Special Tribunals for recovery of dues of the Banks and Financial Institutions by following a summary procedure. The setting up of Special Tribunals will not only fulfil a long-felt need, but also will be an important step in the implementation of the Report of Narashimhan Committee, whereas on 30th September, 1990 more than fifteen lakhs of case filed by the public sector Banks and about 304 cases filed by Financial Institutions were pending in various Courts, recovery of debts involved more than Rs. 5622 crores of dues of Public Sector Banks and about Rs. 391 crores of dues of the Financial institutions. The locking up of such huge amount of public money in litigation prevents proper utilisation and re-cycling of the funds for the development of the country. (2) The Bill seeks to provide for the establishment of Tribunals and Appellate Tribunals for expeditious adjudication and recovery of debts due to Banks and Financial Institutions." 7. Therefore, the object and reasons of the Act is to provide a Special Tribunal for expeditious disposal of the dues of the Banks and Financial institutions. Under this Act of 1993 a Special Tribunal has been constituted known as "Debt Recovery Tribunal". 8. The expression "bank" has been defined in section 2(d) of the Act of 1993 which reads as under: "(d) 'bank' means-- (i) a banking company; (ii) a corresponding new bank; (iii) State Bank of India; (iv) a subsidiary bank; or (v) a Regional Rural Bank;" 9. The expression "debt" has been defined in section 2(g) of the Act of 1993 which reads as under: "'debt' means any liability (Inclusive of interest) which is alleged as due from any person by a Bank or a financial institution or by a consortium of Banks or Financial Institutions during the course of any business activity undertaken by the Bank or the Financial Institution or the consortium under any law for the time being in force, in cash or otherwise, whether secured or unsecured, or whether payable under a decree or order of any Civil Court or otherwise and subsisting on, and legally recoverable on, the date of the application;" 10. In the present case we are concerned with Bank only therefore we need not to refer to the other definitions like "Banking Company" or "financial institute". Under section 3 provides for establishment of Tribunal section 4 deals with composition of Tribunal. Section 5 provides for the qualifications for appointment as Presiding Officer. Section 6 provides for terms of office. Section 7 provides for staff of Tribunal. Section 8 provides for establishment of an Appellate Tribunal. Chapter Ml of the Act of 1993 deals with jurisdiction, powers and authority of Tribunals. Section 17 lays down that what is the jurisdiction and power of the Tribunal. Section 17 reads as under: "17. Jurisdiction, powers and authority of Tribunals.--(1) a Tribunal shall exercise, on and from the appointed day, the jurisdiction, powers and authority to entertain and decide applications from the Banks and Financial Institutions for recovery of debts due to such banks and financial institutions. (2) An Appellate Tribunal shall exercise, on and from the appointed day, the jurisdiction, power and authority to entertain appeals against any order made, or deemed to have been made by a Tribunal under this Act." 11. Section 18 lays down that there shall be a total bar on other Courts to entertain the jurisdiction except the Supreme Court and a High Court exercising jurisdiction under Articles 226 and 227 of the Constitution in relation to matters specified in section 17. 12. Section 31 deals with the transfer of cases pending before any Court immediately before the date of establishment of a Tribunal under the Act of 1993 and provides that the same shall stand transferred on that to such Tribunals. 13. Section 34 gives an overriding effect to the provisions of the Act of 1993. Section 34 reads as under "34. Act to have overriding effect. (1) Save as provided under subsection (2), the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. (2) The provisions of this act or the rules made thereunder shall be in addition to, and not in derogation of, the Industrial Finance Corporation Act, 1948 (15of 1948). The State Financial Corporations Act, 1951 (63 of 1951), the Unit Trust of India, Act, 1963 (52 of 1963), the Industrial Reconstruction Bank of India Act, 1984 (62 of 1984) and the Stock Industrial Companies (Special Provisions) Act, 1985 ( 1 of 1986)." 14. By virtue of section 34 which states that if there is anything inconsistent In any other law for the time being in force or any instrument having effect by virtue of any law other than this act then this Act shall prevail as against other Acts. Therefore, by virtue of the overriding effect of this Act all other Acts stand superseded by this Act if they are inconsistent with this Act. 15. Now in light of both the statutes i.e. under section 433 and 434 of the Companies Act, 1956 and sections 17, 18 and 34 of the Act of 1993 the question before us is whether the Company Court under the Companies Act, 1956 still has jurisdiction to entertain a petition filed by Banks for winding up of Companies. It is true that a special enactment has been made by the Parliament and a forum has been provided to the Banks and Financial Institutions for adjudication of their debts expeditiously. Therefore normally the Bank and Financial Institutions shall have to seek remedy from the Debt Recovery Tribunals by virtue of section 34 of the 1993 Act which gives overriding effect to this Act as against any other remedy available under the Civil Courts. Therefore, what we have to see is the relief which the Banks and Financial Institutions want to seek under the provisions of sections 433 and 434 of the Companies Act, 1956 can co-exist with the Act of 1993 or not. 16. Section 34 of the Act of 1993 only talks about "inconsistency" of the laws, that means that if any other law which is inconsistent with this Act then in that case this Act will have the overriding effect. But if other enactment which is no inconsistent with the provisions of this Act then this Act will not have overriding effect over other Act. 17. Now adverting to the facts of this case, an application under sections 433 and 434 of the Companies Act, 1956 has been filed by the ICICI for winding up the Company because it is unable to pay its debts. Therefore, the question is whether the winding up petition filed before the Company Court under the provisions of the Companies Act, 1956 is maintainable or not in view of the Act of 1993. In this connection our attention was invited to various decisions of the apex Court as well as of this Court wherein it has been held that a petition filed under sections 433 and 434 of the Companies Act, 1956 for winding up of a company who was unable to pay its debt is not a petition for recovery of debts. In this connection reference may be made to the decision of this Court in the case of Bukhtiarpur Bihar Light Railway Co. Ltd. v. Union of India . In this case it was held by the Division Bench of this Court that the machinery for winding up will not be allowed to be utilised merely as a means for reeling debts due from a Company. It was observed. "A creditor will not ordinarily be heard to urge that a winding up order should be made because the substratum of the Company is gone, not for the reason that he is technically and as a matter of law barred from taking that ground at all, but for the reason that it is not a proper ground for a creditor to urge, except In a very special circumstances. Whether the substratum of a company is gone and the object with which it was formed, has become impossible of further pursuit, is usually the proper concern of only its share holders and contributories; a creditor cannot properly be allowed to use it as a ground for breaking up the company, unless by the dis-appearance of the substratum, the recovery of his debt has been imperilled. Further, the reason that the substratum of a company is gone is not one of the specific grounds given in section 162 of the Act for making a winding up order. The disappearance of the substratum is a circumstance, in view of which the Court may, in a given case, consider it just and equitable that a winding up order should be made." 18. The same proposition of law was reiterated in the case of re: Bengal Flying Club reported in 1966(2) Company Law Journal 213. It was held: "The Court will not allow the winding up proceedings to be explanted as a normal alternative to the ordinary mode of debt realisation. The Company Court will forbear from deciding a dispute which can be more conveniently investigated in a regular action. That should be so, even if the dispute is not in respect of the whole debt, If the grounds on which the liability was disputed are bona fide and substantial." 19. Our attention was also invited to the decision of the apex Court in the case of .Amalgamated Commercial Traders (P) Ltd, v. A.C.K. Krishnaswami & Anr. reported in 1965 (35) Company Cases 456 wherein it was held by the apex Court that winding up petition is not a legitimate means of seeking to enforce payment of a debt which is bonafide disputed by the company: 'Their Lordships observed: "it is well-settled that a winding up petition is not a legitimate means of seeking to enforce payment of a debt which is bona fide disputed by the company. A petition presented ostensibly for a winding up order but really to exercise pressure will be dismissed, and under circumstances may be stigmatised as a scandalous abuses of the process of the Court. If a debt is bona fide disputed there cannot be 'neglect to pay' within the meaning of section 434(1)(a) of the Companies Act, 1956. If there is no neglect, the deeming provision does not come into play, and the ground of winding up, namely, that the company is unable to pay its debts, is not substantiated." 20. In the case of the question was that whether a Receiver appointed in a suit can file a winding up petition for realisation of debt. In that context it was held by their Lordships that a Civil Court can maintain winding up petition for realisation of debt, though it is not normal alternative to the ordinary procedure for realisation of debts--propriety does not affect power but only its exercise. 21. In this connection our attention was also invited to a decision of the Supreme Court in the case of Pradeshiya Industrial & Investment Corporation of U.P. v. Worth India Petrochemicals Ltd. . In this case their Lordships interpreted the provisions of section 433(e) of the Companies Act. It was held: "An order under section 433(e) is discretionary. There must be a debt due and the company must be unable to pay the same. A debt under this section must be determined or definite sum of money payable immediately or at a future date. The inability referred to in the expression 'unable to pay its dues' in section 433(e) should be taken in the commercial sense. In that, it is unable to meet current demands. It is 'plainly and commercially insolvent that is to say, that its assets are such, and its existing liabilities are such, as to make it reasonably certain--as to make the Court feel satisfied--that the existing and probable assets would be insufficient to meet the existing liabilities'. The machinery for winding up will not be allowed to be utilised merely as a means for realising debts due from a company." 22. The same view was taken in another decision of the Supreme Court in the case of Haryana Telecom Ltd. v. Sterlite Industries (India) Ltd. . In this case the question was that whether the Arbitrator can order winding up of the company. In that context their Lordships observed that the power to order winding up is only conferred on the Company Court under the provisions of the Companies Act, 1956. In that context their Lordships observed: "The claim in a petition for winding up is not for money. The petition filed under the Companies Act would be to the effect, in a matter like this, that the company has become commercially insolvent and, therefore, should be wound up." 23. Therefore, it was contended by the learned counsel for the respondent that the power exercised by the Court under sections 433 and 434 of the Companies Act, 1956 for winding up of the company is not merely for recovery of debts, it is more than i.e. it is not in public interest to allow such company to operate in the commercial world as it might lead to cheating the public at large. There, it is submitted by the learned counsel for the respondent that there is an element of public interest involved in the winding up petition and secondly the other creditors of the company of which winding up is being sought can also join in the said winding up proceeding which is not possible in a case where a suit is filed by the Bank or Financial Institution, or Banking company for recovery of debts before a Tribunal constituted under the Act of 1993. Therefore, the purpose of filing a petition for winding up is more than that of recovery of debts but it is for the benefit of the public at large that a company who is unable to pay its creditors should not be allowed to operate in the commercial world to the determent of the public at large. It was submitted by the learned counsel for the appellant that it is not something which is contrary or inconsistent with the provisions of the Act of 1993. It was submitted that rather it is consistent with the provisions of the Act of 1993 and it is not derogatory. In fact the purpose of both the enactments i.e. the Act of 1993 and the Companies Act is the recovery of debts by the Bank and Financial Institutions but under the Companies Act, In addition to recovery of debts, there is another element i.e. public purpose behind moving such kind of applications that such kind of companies who are unable to pay their creditors should be wound up so that it may not cheat the pubic at large. In the case of application before the Debt Recovery Tribunal under the Act of 1993 there is only one individual element i.e. recovery of debts, whereas a winding up petition before the Company Court under the Companies Act, 1956 serves a public purpose also, because the public will also know when such petitions are filed and summons are issued and publications are made for winding up then all the creditors whose debts have not been paid by the company can join the cause and the public at large can come to know about the Financial status of such broken company which is unable to pay its debts. Therefore a dual element is involved in an application under sections 433 and 434 of the Companies Act. It is not only recovers the debt but saves the public at large from being cheated or mislead by such company. Therefore, in the aforesaid decisions their Lordships have kept in view the element of public interest while observing that such petitioners are not only for recovery of debts or money for which a suit could have been better remedy before the Debt Recovery Tribunal but it also involves publicity to the public about the failure of the company to pay is creditors and such companies should not be allowed to operate in the commercial world. Therefore, the learned counsel strenuously urged before us that the power contained in section 34 read with sections 17 and 18 of the Act of 1993 should not be treated as derogatory to the provisions of the Companies Act. 1956 rather provisions of both the statutes can operate harmoniously. In this connection the learned counsel for the appellant has invited our attention to a recent decision of the apex Court in the case of Allahabad Bank v. Canara Bank (supra). In this case their Lordships have discussed the provisions of the Act of 1993 and that of the Companies Act. Their Lordships after discussing the provisions of sections 17, 18, 19, 25, 2(g), 31 and 34 held that as far as recovery of debts are concerned no Civil Court can operate by virtue of the provisions of section 34 of the Act of 1993. The issue involved in that case was that after having obtained a money decree against an indebted company from the Debt Recovery Tribunal under the provisions of section 19 of the Act of 1993 whether the creditor was required to make an application under section 446 of the Companies Act, 1956 in order to proceed with the execution. The company in that case had gone into liquidation on the basis of a petition filed by the creditor. In that context it was held by the apex Court that once a creditor had its claim adjudicated before the Debt Recovery Tribunal then there was no need for the creditor to seek the leave of the High Court under section 446 of the Companies Act, 1956 in order to proceed with the execution before the Debt Recovery Officer in the Debt Recovery Tribunal. in that context their Lordships held that the jurisdiction of the Debt Recovery Officer even in regard to the execution was exclusive and he can proceed to execute the decree as per the certificate issued by the Debt Recovery Tribunal as per the procedure contained in Chapter V and convered by sections 25 and 30 of the Act of 1993. Therefore. It was held that adjudication of the liability and recovery of the amount by the Debt Recovery Officer are within the jurisdiction of the Tribunal and no other Court or authority far less Civil Courts can go into the question relating to the liability and recovery of debts. It was observed that the appellant company is not required to seek the leave of the Company Court to proceed with its claim before the Debt Recovery Tribunal in respect of the execution proceeding. In fact their Lordship did not hold that the secured creditors cannot institute proceedings for winding up of a company under sections 433 and 434 of the Companies Act as that issue was not before the apex Court in that case. 24. The learned counsel for the appellant strenuously urged before us on the basis of this judgment that the Company Court has no jurisdiction to examine the question of debt in the winding up petition filed by the petitioner and the petition should be transferred to the Debt Recovery Tribunal. 25. We have already observed above that the petitions which are filed before the Company Court under sections 433 and 434 of the Companies Act. 1956 are not only for recovery of debts but it also has an element of public purpose. This contention is supported by various decisions of the apex Court and this Court in the decisions referred to above that the petitions which are filed before the Company Court under the provisions of section 433(e) of the Companies Act, 1956 are not only a petition for recovery of debts but they are more than that i.e. such companies who have failed to pay their creditors should not be allowed to function in this commercial world to the detriment of the poor creditors. 26. If that be the position, then filing of a petition under sections 433 and 434 of the Companies Act, 1956 before the Company Court cannot be said to be inconsistent with the provisions of the Act of 1993. Once it is held that the petition is not only for the recovery of debts but they are more than that as mentioned above then in that case it cannot be said that the jurisdiction of the Company Court is ousted by virtue' of section 34 read with sections 17 and 18 of the Act of 1993. Had it been a case where the petition was filed for recovery of debts only then perhaps the arguments raised by the learned counsel for the appellant would derived support from the decisions given in the case of Allahabad Bank v. Canara Bank (supra), but it has been the consistent view of the apex Court that the petitions filed under sections 433 and 434 of the Companies Act are not petitions for mere recovery of debts then in that case the provisions contained in the Act of 1993 cannot prevent the Banks or Financial Institutions in approaching the Company Court for an order of winding up. If the petition under sections 433 and 434 of the Companies Act had been meant for recovery of debt only then, of course, the provisions contained in the Act of 1993 will prevent the Banks and Financial Institutions from filing petitions under sections 433 and 434 of the Companies Act but if that is not so then it cannot be held that by virtue of Allahabad Bank's case (supra) that it prohibits the Company Court to exercise its discretion under sections 433 and 434 of the Companies Act, 1956. 27. In this connection our attention was also invited to the decision in the case of Ganapati Commerce Ltd. v. Bank of Rajasthan reported in 2000(2) CHN 555 as well as another earlier judgment of this Court by a single Bench in the case of Andhra Steel Corporation Ltd. v. Bank of Baroda . Since we have already referred the Division Bench judgment of this Court as well as of the apex Court which have taken the view that a winding up petition is not only for the purpose of recovery of debts, therefore, we need not to dilate on these decisions of this Court. However, we are in full agreement with the view taken in both decisions. 28. It may also be relevant to mention here that while interpreting the non-obstante clause care should be taken to see that it should be read strictly and should not be read more than what is necessary. A special enactment of rule cannot be held to be overridden by later general enactment or simply because the later opens up with an non obstante clause. There should be a clear Inconsistency between the two before giving an overriding effect to the non obstante clause. Therefore, while interpreting such non obstante clause reference to other enactment has also to be made and effect should only be given if the inconsistency is apparent. In case if they can be harmoniously read then just because the enactment starts with a non obstante clause should not be read to curtail the operation of the earlier enactment. 29. In the present case as we have examined the matter closely with reference to both the Acts and it appears that the provisions of section 433(e) has been interpreted by their Lordships in a number of decisions that such petitions under sections 433 and 434 of the Companies Act, 1956 are not merely for recovery of debts and it is meant for the benefit of the public at large that such institutions who arc unable to pay their debts should not be allowed to function for public purpose then in that case it cannot be read that the petitions filed under sections 433 and 434 are inconsistent with the provisions of the Act of 1993 rather if we closely examine then both the provisions of the Act can con-exist without doing any harm to the provisions of the Act of 1993. Therefore, the decisions heavily relied upon by the learned counsel for the appellant namely Allahabad Bank v. Canara Bank (supra) cannot be interpreted to mean, as laid down by their Lordships of the apex Court, that the petitions filed under sections 433 and 434 of the Companies Act cannot be entertained by virtue of section 34 of the Act of 1993. 30. It may be not out of place to refer to the prayer of the petitioner in the petition filed by the petitioner for winding up of the company under sections 433 and 434 of the Companies Act, 1956 which reads as under: "(a) The company namely Maxlux Class Private Limited be wound up by this Hon'ble Court under the provisions of the Companies Act. 1956; (b) The Official Liquidator attached to this Hon'ble Court be directed to take possession of the assets and properties of the company forthwith; (c) Cost of and incidental to this application and the claim of the petitioner to come out of the assets of the company: (d) Such further order or orders and/or direction or directions as to this Hon'ble Court may deem fit and proper." 31. A perusal of the aforesaid prayer clearly shows that there is no prayer for payment of debts. Learned counsel for appellant though argued that there is no prayer for debt but in substance it is for discharge of debt. We are unable to accede to the submission of the learned counsel for the respondent that such petitions are not basically for discharge of debts, debt is only one element but there is also public purpose behind it that such defunct companies should not be allowed to survive in the commercial world to the detriment of public. As a result of the above discussion, we are of the opinion that the view taken by the learned single Judge is correct and it does not require any interference by this Court, Hence the appeal filed by the appellant is dismissed. No order as to costs. G.C. Gupta, J. 32. I agree. 33. Appeal dismissed July 6, 2001 Prayer for stay of operation of this Judgment/Order is considered and refused. Urgent xerox certified copy of this Judgment/Order to be issued to the parties if applied for.

Author: A Mathur

Maxlux Glass Private Limited vs Icici Limited Company on 6 July, 2001

Calcutta High Court

Bail Appl. No.2609/2021 1/1 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE K.HARIPAL Friday, the 13th day of August 2021 / 22nd Sravana, 1943 CRL.M.APPL.NO.1/2021 IN BAIL APPL. NO. 2609 OF 2021 CRIME NO.94/2020 OF HOSDURG EXCISE RANGE OFFICE, KASARAGOD PETITIONER: ASHOKAN P AGED 41 YEARS S/O. AMBUNHI, BALLA HOUSE, ALAI, AMBALATHUKARA VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICTKASARGOD, PIN - 671315 RESPONDENT: STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALAERNAKULAM, PIN - 682031 Petition praying that in the circumstances stated therein the High Court be pleased to grant one week time to comply directions of this Hon'ble Court to surrender before the Investigating officer in the interest of justice. This petition coming on for orders upon perusing the application and this court's order dated 16/7/2021 in BA 2609/2021 and upon hearing the arguments of M/S SHIBA M SAMUEL, Advocates for the petitioner and PUBLIC PROSECUTOR for the respondent, the court passed the following: ORDER By the order dated 16/7/2021 this application was allowed enabling the petitioner to surrender before the Investigating Officer within ten days. Now the petitioner submits that he could not surrender within the time and seeks one more weeks time to comply with the directions. Heard both sides. This application is allowed. Sd/- K.HARIPAL JUDGE 13-08-2021 /True Copy/ Assistant Registrar

Ashokan P vs State Of Kerala on 13 August, 2021

Kerala High Court

ORDER Nainar Sundaram, C.J. 1. The petitioner in W.P. Mp/ 665 of 1991 is the appellant in this writ appeal. The respondents in the writ petition are the respondents in this Writ Appeal. For the sake of convenience, we are referring (o the parties as per their nomenclature in the writ petition. 2. The petitioner came to this court by way of the writ petition, projecting the following prayer: "For the reasons stated in the accompanying affidavit, the petitioner herein prays that this Honourable Court may be pleased to issue an appropriate writ, order, or direction, specifically a writ of certiorarified mandamus under Article 226 of the Constitution of India calling for the records of the impugned notice dated 31-12-1990 of the first-respondent issued u/S.6 of the Tamil Nadu Land Encorachment Act, quashing the same and also directing the respondents 1 to 4 to grant patta to the petitioner in respect of the portion of the land under his occupation in S.No. 320/2C Padi village, Saidapet Taluk or in the alternative to grant lease in favour of the petitioner in respect of the same portion of the land and pass any such further or other order as this Honourable Court may be pleased to deem fit and proper in the circumstances of the case." As we could see from the extract of the prayer, it is two fold. One relates to the proceedings u/S. 6 of the Tamil Nadu Land Encroachment Act III of 1905, hereinafter referred to as the Act. The other relates to the grant of patta in respect of the land occupied by the petitioner from and out of which the petitioner is being sought to be evicted. Before the learned single Judge, who dealt with the Writ petition, with regard to the attack on the proceedings under S.6 of the Act, it was urged that there was no notice under S. 7 of the Act served on the petitioner before the order u/S. 6 of the Act, impugned in the writ petition, came to be made. The learned single Judge perused the files produced before him by the learned Government Advocate, who appeared for the respondents, and on such perusal, the learned single Judge found that there is an endorsement that the notice u/ S. 7 of the Act was refused by the petitioner when sought to be served with the same. The learned single Judge, taking note of the same repelled the contention advanced on behalf of the petitioner with reference to non-service of notice u/S. 7 of the Act. The learned single Judge thus opined that there is no infirmity in the impugned order. However, the learned single Judge directed the respondents to consider the application of the petitioner for grant of patta in respect of the Sand in question. The learned single Judge also granted two months' time for the petitioner to vacate the land in question. Subject to what all has been observed as above, the learned single Judge dismissed the writ petition. This Writ Appeal is directed against the order of the learned single Judge. 3. The matter, when it came up for admission earlier, we deemed fit to order notice of motion, taking note of the point urged by Mr. S. Krishnaswamy, learned counsel for the petitioner, that the notice under S.7 of the Act was not served in the manner prescribed in S. 25 of the Tamil Nadu Revenue Recovery Act, 1864, or in such other manner as the State Government by Rules or Orders under S. 8 may direct, and refusal as such even that is the factual position cannot be taken to be proper service of the notice under S. 7 of the Act. Mr. M. A. Sadanand, learned Government Pleader took notice for respondents 1 to 4 and Mr. T. K. Ramkumar took notice for respondent 5. The learned Government Pleader took time to get at the relevant records to find out as to how the position with reference to service of notice u/ S. 7 of the Act is reflected therein. Today when the matter is taken up, learned Government Pleader, after perusal of the records, submits that there is only an endorsement in the records that notice u/S. 7 of the Act was refused by the petitioner. Thus, we are obliged to examine the question as to whether service could be held to be sufficient, taking note of the endorsement of refusal found in the records. The relevant part of S. 7 of the Act with reference to service of notice under that provision reads as follows: "Such notice shall be served in the manner prescribed in S.25 of the Tamil Nadu Revenue Recovery Act, 1864, or in such other manner as the State Government by rules or orders u/S. 8 may direct." Learned Government pleader submits that no rule, as contemplated in the provision extracted above, has been formulated on the question of service of notice. This obliges us to look into S. 25 of the Tamil Nadu Revenue Recovery Act, 1864. The relevant portion of S. 25 of the said Act on the question of service reads as follows: "Such demand shall be served by delivering a copy to the defaulter, or to some adult male member of his family at his usual place of abode, or to his authorised agent, or by affixing a copy thereof on some conspicuous part of his last known residence, or on some conspicuous part of the land about to be attached." As we could see from the extract made above, there could be service by delivering a copy to the defaulter, or to some adult male member of his family at his usual place of abode, or to his authorised agent, or by affixing a copy thereof on some conspicuous part of his last known residence, or on some conspicuous part of the land about to be attached. So far as refusal of notice is concerned, such refusal and any endorsement to that effect are not contemplated as sufficient service by S. 25 of the Tamil Nadu Revenue Recovery Act, 1864. In the matter of service of notice under S. 7 of the Act, when the specific provision of S. 25 of the Tamil Nadu Revenue Recovery Act, 1864 has been invoked, we have to go by the express verbalism found in that provision on the question of service and it is not possible to stretch it so as to bring in any contingency other than those set forth in the said provision, as amounting to proper service. This being the legal position, and the factual exposition before us being what it is, we have to countenance the grievance of the petitioner with reference to the order u/S. 6, impugned in the writ petition. Accordingly, that part of the prayer in the writ petition impugning the order under S. 6 of the Act is countenanced and the impugned order will stand quashed. With reference to the prayer for the grant of patta, we have nothing to express on merits of the claim of the petitioner and, as directed by the learned single Judge, it is for the respondents to consider that question on merits and in accordance with law. This writ appeal is allowed to the extent indicated above. We make no order as to costs. 4. Order accordingly.

Author: N Sundaram

Ramaswamy vs The Tahsildar Saidapet Taluk, ... on 20 April, 1992

Madras High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.30175 of 2011 Prakash Ram son of Jalim Ram Versus The State Of Bihar ----------- 2. 29.09.2011 Heard learned counsel for the petitioner as well as learned Additional Public Prosecutor for the State. In this three years old case, instituted on 24.02.2008 against seven named accused persons, name of the petitioner was added vide order dated 01.03.2008 of the Court below. Submission is that no allegation is attributed against the petitioner nor he was initially named though his family members were named accused and subsequently case has been compromised. Accordingly petition before the Court below was filed as early as on 04.03.2008. Thereafter, petitioner alongwith others applied for privilege under Section 438 Cr. P.C. before learned Sessions Judge by filing A.B.P. No. 496-A of 2008 which was disposed of with certain observation on 14.01.2009. Other co-accused the family members of the petitioner subsequently preferred Cr. Misc. No. 48382 of 2008 before this Court which was allowed on 02.12.2008 but since petitioner was residing outside in connection with livelihood he could not apply earlier. Taking into consideration, the delay caused in disposal of the case at the hands of petitioner in spite of said resolution of dispute 3 years before and refusal of prayer of bail more than 2 years ago petitioner appears not entitled for privilege sought. Accordingly, the prayer of anticipatory bail of the 2 petitioner in connection with Bhabhua P.S. Case No. 67 of 2008 under Section 341, 448, 324, 307, 34 I.P.C. pending in the Court of Chief Judicial Magistrate, Kaimur at Bhabhua is rejected. However, in case of his surrender within four weeks payer of regular bail may be considered on its own merit without being prejudiced of instant refusal. (Akhilesh Chandra, J.) Saif/-

Prakash Ram vs The State Of Bihar on 29 September, 2011

Patna High Court - Orders

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Central Government Act

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Vijai Singh And Others vs State Of U.P. on 1 September, 2010

Allahabad High Court

HIGH COURT LEGAL SERVICES COMMITTEE, BAHfi.?LI.0RE BEFORE THE LOX ADALAT IN mm men 0013111' on KARRATAKA AT Bmampgiz. DATED THIS THE 16*" my 0:» 8EP1'EMBEf{;_M2€§--«1(}:.l: _ CONCILIATORS PRESENT: 1. ~ T' 3 HOWBLIJ MR. JUSTICE HV,s.K.s{urAxi=:g-L: " 'V AND ' . sm. A.K.BHA*F,<__MEMBVER Miscellaneous First Lek Adalat Hm}.-30~3I2910 BETWEEN': v_ _ . MEHABCJCH3 PASE~1A:§a,3 .. i'e'IEHABOOBSjO.£&Si~€AM, zégvmfis, _ ?{~§;('3.{3.E\E,K€)}°iE>ALU, §,AXM.EFEJRAM EXTENSI{)i*£', ~ * NU<;<;I::azaL:,1 M 373 1:31. c.R.§>A3'N,A'rALuK, . '. ; 2-;;:ssAN {)§S"{'Ri(3.T;'"~ ..A1r1>EL1.a.za'r : (BY sin?-.., ADVOCATE] 1, SUSHE;ELAMMA, w;0,:«;su£55A$t{ETTy V * £_VISHEW~ES§.iWARAiAiI} ' ---------- ~ , ii.§Z.CI1?CLF§, 1; 4212033, 7 .. 2-iI.RE'3'URU_VT€:sWl}a," HIE<I1Y{..IR ' ?:*A1.,x3K,TAc,z1;fr£z;x:3:_IRn;;A DISTRICT, ((3WN--E:R <32? <:A__N';:i£"R LORRY NO; i{A~O3-B- E7953} Ti-{E :~iAfrIi:bzAL INSURANCE (30.LTD., "SP1 RAM1s,31'TE zamca, 2A, Vpngzqasam Rom), -'m;g<";;_: R, crigzsxznax --- 600 917. ..Rssvo2znENm ' an sru. !4!2.S.8RIRA!&, ADVOCATE ma R.-2) V' '$313 MFA 911.25 L.;/3173 (1) OF Mv ACT AGAINST' THE Ju£'><3m:r»:*r Arm DATED 23~(}6»~2{}(}7 PASSED EN MVC N(3.8f';'2(§06 ON THE E'i£.E OF CLVIL ESRQNQ 85 MEMBER, MACK', CEiANNARAYAPA'I'NA, I:'£XRTLY AE.,§;{}WING THE CLAIM PETITEKDN FOR {3OMPEP~¥SPaTEON AND SEEKERS ENEiAN£1I:*Zi&#£EN'I" OF' (IIOIv§§3ENSAT£ON. '\¢,./ 4. The Respondent --- Insuramze Co1apa11y $13211} depcesit the saidameunt before the Tribune} within six weeks from vt;1*:.%:?; ":_1.at;e of preparatim: of award, failing which the said amozgmi .' ;_;::an3I irxterest at the rate of 9% p.a. fiom the date of defa1.1i;i§;'ww daltc ,v<»5'1'"..__ deposit. 5. Out ef the enhanced compenséétifiza, 5(i3% ;}i" kapt in fixed deposit in the name -3."'[Ls3:.:>5A<§'=ll3..'11"t:' "far period of 3 years renewable by filrther is enttitled to draw the periodical ac§:i'1i&Ec'c§;o1V:;: The balance 50% of the; amo1;pm§".» in favour of the appeiiant»cIaimant,_ V _ FUDGE RR

Author: Lok Adalath

Mehaboob Pasha @ Mehaboob vs Susheelamma on 16 September, 2010

Karnataka High Court

[Section 5] [Complete Act]

Central Government Act

IN THE HIGH COURT OF KERALA AT ERNAKULAM WA.No. 2949 of 2009() 1. V.P.RAZAK, ... Petitioner Vs 1. THE KERALA STATE ELECTRICITY BOARD, ... Respondent 2. THE ASST. ENGINEER, 3. THE EXECUTIVE ENGINEER, For Petitioner :SRI.K.I.ABDUL RASHEED For Respondent : No Appearance The Hon'ble the Chief Justice MR.S.R.BANNURMATH The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN Dated :04/01/2010 O R D E R S.R.BANNURMATH, C.J. & THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------------- W.A.No.2949 OF 2009 ------------------------------------------- Dated this the 4th day of January, 2010 JUDGMENT S.R.Bannurmath,C.J. This appeal is filed against the conditional interim order granted by the learned single Judge. This is a case of alleged theft of energy and the appellant has challenged Exts.P2 and P3 bills. The writ petitioner, by way of interim prayer, has sought for re-connection as the electric supply has been disconnected. Learned single Judge, relying on Exts.P2 and P3, deemed it appropriate to grant an interim order subject to the appellant depositing a sum of Rupees Two Lakhs within two weeks. We do not find any illegality or perversity in the discretion exercised by the learned single Judge and hence, this writ appeal is devoid of merits. The same is dismissed. However, at this stage, at the request of the learned counsel for the appellant, we extend the  WA.2949/09 2 time for payment of Rupees Two Lakhs to two more weeks from today. Sd/- S.R.BANNURMATH, Chief Justice. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. kkb.5/1.

V.P.Razak vs The Kerala State Electricity ... on 4 January, 2010

Kerala High Court

JUDGMENT Kumaraswami Sastri, J. 1. This appeal arises out of a suit filed by the respondents to recover the balance of purchase money claimed under a sale deed filed as Ex. A in this case. The defendants raised various defences and pleaded that nothing was due. The issues were settled on the 1st of September, 1922. When the issues were settled no order was passed as to the lists of documents or the production of documents. After settlement of issues, the case was transferred to the Additional Sub-Court, East Tanjore, at Mayavaram and after some adjournments the case was taken up for hearing on the 15th of March, 1923. On that date the defendant's vakil filed two applications. One was an application to receive certain documents and the other was an application for an adjournment. The documents which they wanted the Court to receive consisted of certified copies of certain decrees and orders obtained from Courts, registration copies of certain documents obtained from the Sub-Registrar's Office, sale certificates issued in Suit No. 48 of 1913, which it is alleged refers to some properties now in dispute, printed copies of plaints, sale proclamations in two suits, Suit No. 38 of 1914 and Suit No. 48 of 1914, and ledgers which it is alleged were filed in another Court. The Subordinate Judge dismissed the application for receiving the documents in evidence on the ground that they had not been filed earlier and also refused an adjournment and he went into the case and passed a decree for Rs. 15,213 and odd. Neither party adduced any evidence. 2. The appellants argue that the Judge was wrong in refusing to receive the documents which they tendered and that he ought not to have refused an adjournment in this case but should have allowed the defendants an opportunity of filing and proving the documents, which, as already pointed out, consisted mainly of certified copies and registration copies of documents. 3. The main question in this case is whether the learned Judge was right in refusing to receive these documents. Order 13, Rules 1 and 2 relate to the production of documentary evidence at the first hearing. Rule 1 says that the parties or their pleaders shall produce, at the first hearing of the suit, all the documentary evidence of every description in their possession or power, on which they intend to rely, and which has not already been filed in Court, and all documents which the Court has ordered to be produced. Sub-clause (2) says that the Court shall receive the documents so produced; provided that they are accompanied by an accurate list thereof prepared in such form as the High Court directs. Rule 2 provides that documentary evidence not produced as required by Rule 1 shall not be received in a subsequent stage of the proceedings unless good cause is shown to the satisfaction of the Court for the non-production thereof. The Court has in such cases to record reasons for receiving documents not produced at an earlier stage. Rule 64 of the Civil Rules of Practice provides for cases where the Court does not call for the production of documentary evidence under Order 13, Rule 1. It says that in such cases it shall direct the defendant to file in Court a list of documents on which he intends to rely and shall fix a time for the production thereof. The list is to be in Form No. 16, and shall be signed and verified by the party filing the same or by his pleader. In the present case, no orders were passed either under Order 13, Rule 1 or under Rule 64 of the Rules of Practice, so that there was no direction for the parties to produce the documents and no direction that a list should be filed. Under these circumstances, the question arises whether the Judge was right in rejecting the documents produced at the trial. Even if there was an order passed, considerable discretion is allowed to the courts in cases where the documents are either public documents or are certified copies or where there is no reasonable doubt as to their genuineness. We have been referred to Ranchhod v. Secretary of State for India (1896) I.L.R. 22 B. 173, Talewar Singh v. Bhagwan Das (1907) 12 312, Jagdip Pandey v. Taibunnissa (1923) 72 I.C. 397 and Chidambara Chettiar v. Parvathi Achi (1924) 87 I.C. 351. The discretion of Courts to admit documents has also been considered by the Privy Council in Imambandi v. Mutsaddi (1918) I.L.R. 45 C. 878 : 35 M.L.J. 422 (P.C.). I think, therefore, in the present case the Judge was wrong in summarily rejecting the documents which were tendered at the date of the hearing. The difficulty was mainly caused by the procedure adopted by the Vakil for the appellants who assumed that there was some default and put in a petition for the admission of these documents. He should also have put in his clients in the box and proved the facts, but he adduced no evidence. Having regard to these facts and to the unsatisfactory way in which the case has been disposed of in the absence of important documents, I think that the proper course will be to reverse the decree of the lower Court and to send the case back for disposal directing the Sub-Court, Mayavaram, to receive in evidence the documents sought to be tendered, admitting such documents which are certified copies of public documents and which require no further proof. If there are any other documents which the parties want to' file, I think the Court ought to consider each document on its own merits and receive such documents as to which there is reasonable explanation for non-production, or as to which there can be no doubt as to genuineness. He will pass the necessary orders under Order 13, Rules 1 and 2, Civil Procedure Code or the Civil Rules of Practice before fixing a date for the trial. 4. As regards costs, I think that as the appellants have been dilatory in this case, they should pay the costs of the respondents in the High Court, and as regards costs in the first Court, they should pay the day costs incurred by the plaintiffs on the 15th of March, 1923. The other costs of the suit will abide and follow the result of the decree. 5. The appellants are entitled to the refund of the Court-fee paid in this Court for the appeal. 6. No separate order is necessary on the petition to receive documents. Reilly, J. 7. I agree. I may add that it appears to me desirable that Rule 64 of our Civil Rules of Practice and Rules 1 and 2 of Order 13 Civil Procedure Code, should be brought into accord with each other by amendment.

Author: K Sastri

Ramaswami Chettiar Alias ... vs Tyagaraja Pillai And Ors. on 4 January, 1928

Madras High Court

Patna High Court CWJC No.2991 of 2014 (3) dt.03-08-2016 IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.2991 of 2014 ====================================================== Urmeela Devi .... .... Petitioner/s Versus Chairman Bihar Rajya Pul Nirman Nigam & Ors .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : None For the Respondent/s : None ====================================================== CORAM: HONOURABLE MR. JUSTICE KISHORE KUMAR MANDAL ORAL ORDER3 03-08-2016 Neither the counsel for the petitioner nor the respondent on call is present. List this matter after ten days. (Kishore Kumar Mandal, J) Shyam/-

Urmeela Devi vs Chairman Bihar Rajya Pul Nirman ... on 3 August, 2016

Patna High Court - Orders

IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.35580 of 2010 RAJ KUMAR SAH Versus STATE OF BIHAR ----------- 2 16.11.2010 Heard learned counsel for the petitioner as well as learned counsel for the State. At the very outset learned counsel for the petitioner submits that no doubt the complainant's mother executed sale deed in favour of the petitioner but on account of some dispute and confusion the land in question was never handed over to the petitioner and the said land is still in possession of the complainant. He further submits that the petitioner is still ready to make entire payment to the complainant provided that he should transfer the land in question in favour of the petitioner. In the aforesaid circumstance the petitioner is directed to add the complainant as opposite party no.2 within the course of the day. Let a notice be issued to the complainant through ordinary as well as registered post for which the requisites etc. must be filed within two weeks from today failing which this criminal misc. case shall stand dismissed without further reference to a bench. List the matter after service report or appearance of the opposite party. In the meantime no coercive steps shall be taken against the petitioner. ( Hemant Kumar Srivastava,J.) PN/-

Raj Kumar Sah vs State Of Bihar on 16 November, 2010

Patna High Court - Orders

ORDER S.S. Sekhon, Member (T) 1. Heard both sides and considered the issue. It is found. a) Appellant is an assessee manufacturing and paying duty on confectionary. During the period December 2001 to February 2002, they had cleared the goods on payment of duty on assessable value arrived by deduction of transportation charges / freight on average basis. They were issued a notice and the said deduction was denied duty demand of Rs. 77,794/- and pre-deposit of Rs. 10,000/- along with interest was imposed. b) CCE (Appeals), after examining the proviso of Rule 5 & 7 of the Valuation Rules 2000 found that it was clear that Transportation cost from the place of removal to the place of delivery is allowable mat too on actual basis subject to the condition that it should be shown separately in the manner along with the value (SIC) for the goods so charged and if that was not done the deduction for freight was not eligible. Thereafter, relying upon CBEC order no. 6/59/2000 - CX/ dated 19.12.2000, he did not allow such deductions as they were not shown separately and did not grant equalised freight deduction following Dhiren Chemicals 2002 (143) ELT 19 SC. Hence this appeal. 2. In the case of Kisan Mouldings Ltd and Ors 2004 (62) RLT 712, in a similar case, deduction of freight was not permitted by Revenue on the grounds that the said freight had not been separately shown in the sales invoice by placing reliance on Board's Circular No. 643/34/2002 CX dated 1.7.2002. The Bench held that freight was required to be allowed to be deducted and the orders contrary were not sustainable. Tribunal in that case held that it was well settled that transport is a separate activity from manufacture and the cost of that activity cannot form part of the value of goods referring to [Baroda Electronic Meters Ltd v. CCE., - 1997 (22) RLT 5 SC & Indian Oxygen Ltd. v. CCE., - 1988 (36) ELT 723 (SC). Nothing contrary shown. In this view of the matter no merits are found in the denial of the deduction of average freight in the fact of this case. 3. Consequently the impugned orders are required to be set aside and appeal allowed. 4. Appeal allowed.

Candico (I) Ltd. vs C.C. Ex. on 6 August, 2004

Customs, Excise and Gold Tribunal - Mumbai

JUDGMENT P. Krishnamoorthy, J. 1. Second Appeal No. 80 of 1983 is by the 1st defendant in O.S. No. 83/76 of the Sub Court, Badagara (originally filed as O.S. No. 160/75 on the file of the Munsiff s Court, Payyoli). Second Appeal No. 107 of 1983 is by the plaintiff and defendants 3 and 4 in O.S. No. 34/75. O.S. No. 83/76 is for specific performance of an agreement of sale and O.S. No. 34/75 is a suit for partition. The subject-matter in both the suits being the same, they were jointly tried. In order to understand the controversy in the appeals it is necessary to state the facts. I shall refer to the parties as they are arrayed in the partition suit viz., O.S. No. 34/75. The suit property in the partition suit belonged in common to three persons Dr. Raghavan, Sri Kanaran and Sri Kunhikannan who purchased the same under the sale deed Ext. Al dated 17-7-1957 for a consideration of Rs. 300/-. Under Ext. B44 sale deed dated 15-2-1966, one-third right of Kunhikannan was assigned to one Mohan-das, Advocate, who is the 2nd defendant in the suit. The partition suit is filed by one of the daughters of deceased Kanaran who died on 28-4-1972. The 1st defendant in the suit is Dr. Raghavan who surrendered his one-third right to the State under the ceiling provisions of the Land Reforms Act and the State is impleaded in the suit as the 6th defendant in view of the above. The 2nd defendant is the assignee of Kunhikannan under Ext. B44. The 3rd defendant is the widow of Kanaran and the 4th defendant is another daughter of Kanaran who is the sister of the plaintiff. The 1st defendant died during the pendency of the suit and the 5th defendant, his wife was impleaded as his legal representative. The 7th defendant is a person in whose favour the 3rd defendant executed Ext. B1 dated 17-10-1972, agreeing to sell the one-third share of herself and her two daughters, plaintiff and the 4th defendant. The plaintiff filed the suit for allotment of one-ninth share in the plaint property to her, the other shares being held by the other defendants. 2. The main contesting defendant in the suit is the 7th defendant who claimed that the 3rd defendant in the suit had entered into an agreement with her for assigning the one-third share belonging to the plaintiff and defendants 3 and 4 to her on receipt o*f an advance of Rs. 1,000/- from her. She also produced Ext. B1 dated 17-10-1972 in support of that. In the meantime she had also filed a suit O.S. No. 160/75 before the Munsiff's Court, Payyoli for specific performance of the agreement of sale as against defendants.' 3 and 4 and the plaintiff, which was later re-numbered as O.S. No. 83/76. She contended that the plaintiff is not entitled to any share in view of the agreement of sale in her favour mentioned above. Defendants 3 and 4 also raised a contention that the plaintiff is entitled to claim her one-ninth share. 3. As stated earlier, the 7th defendant had filed O.S. No. 83/76 for specific performance of the agreement of sale in respect of the one-third share that belonged to Kanaran which devolved on the plaintiff and defendants 3 and 4. It was alleged in that suit that there was an agreement on 17-10-1972 by which the 3rd defendant had agreed to convey the one-third share belonging to her and her two daughters, plaintiff and 4th defendant, to her. According to her the 3rd defendant was managing the property on behalf of her daughters also and that she agreed to sell one-third share in the property belonging to them for a consideration of Rs. 2,250/-. An advance amount of Rs. 1,000/- also was paid and the 4th defendant's husband was also an attestor to the document. It was also alleged by the 7th defendant that she was put in possession of the one-third share and that the 2nd defendant (Mohandas) was managing the property on her behalf also. She further alleged that in pursuance of the agreement of sale she got possession and made considerable improvements in the property. In spite of demand the sale deed was not executed and according to her the defendants are bound to assign their one-third share to her on receiving the balance price of Rs. 1,250/ -. Alternatively she contended that in case it is found that the daughters are not bound by the agreement of sale the plaintiff be granted relief in respect of the share of the 3rd defendant who is bound by the same. O.S. No. 83/76 is filed by the 7th defendant in O.S. No. 34/75. Defendants 1 and 2 in O.S. No. 83/76 are defendants 3 and 4 in O.S. No. 34/75 and the 3rd defendant in O.S. No. 83/76 is the plaintiff in O.S. No. 34/75. 4. The 3rd defendant (1st defendant in O.S. No. 83/76) filed a written statement contending that at the time of purchase of the land by her husband the soil was salty, the crop was poor and the cultivation was in a loss and the land was kept fallow for a considerable period. In 1966 Mohandas, the 2nd defendant purchased one-third share of Kunhikannan and even before the said assignment a dam by name Mangamoozhi Dam had come into existence by which the flow of saline water in the plaint property was prevented and the land had been made cultivable. She had no experience in cultivation and in 1972 when she entered into an agreement of sale she was not aware of the construction of the dam by the Government and the improvement caused to the property on account of the construction. The agreement was entered into at the instigation of Mohandas (2nd defendant) and the agreement was taken in the name of the 7th defendant (plaintiff in O.S. No. 83/ 76) who is his brother's wife. Shortly after the execution of Ext. B1 receipt one Chathu, D.W. 2 informed her that the land had considerably improved due to the Mangamoozhi Dam and that if she was aware of the existence of the dam she would not have agreed to self the property. According to her she entered into the agreement of sale without properly understanding the real state of affairs regarding the property and that only at the instigation of Sri Mohandas that the agreement happened to be entered into. She was not aware of the true nature and value of the property at the time of execution of the our of the 7th defendant. She also denied the fact that receipt and in these circumstances the Court the 7th defendant and Mohandas improved should not grant the discretionary relief of the properties. Defendants 2 and 3 in O.S. No. 83/76 who are the plaintiff and 4th defendant specific performance in favin the partition suit, filed a written statement contending that the agreement Ext. B1 is not binding on them as they were not parties to the same. The plaintiff's husband attested the document without knowing the contents and it will not bind them. They contended that in any view of the matter specific performance cannot be granted in respect of their shares. 5. Both these suits were jointly tried. The trial Court came to the conclusion that the 3rd defendant was not aware of the improvement of the land as a result of the construction of Mangamoozhi dam and that there are sufficient reasons for refusing specific performance under Section 20 of the Specific Relief Act and consequently dismissed the suit for specific performance. In the partition suit a preliminary decree was passed by allotting one-ninth share to the plaintiff and one-ninth share each to defendants 3 and 4. Correspondingly shares were allotted to the other defendants also. Against the dismissal of O.S. No. 83/76 the plaintiff (7th defendant in the partition suit) filed an appeal and against the partition decree defendants 2 and 7 therein filed an appeal before the lower appellate Court. The lower appellate Court disagreed with the trial Court and granted a decree for specific performance in respect of the one-ninth share belonging to the 3rd defendant in the partition suit. No decree for specific performance was granted in respect of the share of the plaintiff and 4th defendant in the partition suit. Consequently, modifications were made in the preliminary decree for partition also. The lower appellate Court also held that defendants 2 and 7 are also entitled to the value of improvements which they have made in the property, the quantum of which was directed to be determined in the final decree. Two appeals against the above decree are filed by the 1st defendant in O.S. 83/76 and by plaintiff and defendants 3 and 4 in O.S. No. 34/75. A Memorandum of Cross-objection has been filed in S. A. No. 80 of 1983 by the plaintiff in O.S. No. 83/76, challenging the refusal of a decree for specific performance in respect of shares of defendants 2 and 3 in that suit (shares of plaintiff and 4th defendant in the partition suit). 6. The decree in the suit for partition will depend upon the decree in the specific performance suit. The main question to be decided in the appeal is regarding the correctness of the decree in the specific performance suit. Counsel for the appellant challenged the decree on two grounds; (1) that in the facts and circumstances of this case the Court should have refused the discretionary relief of specific performance, and that the case will come under Section 20(2)(a) of the Specific Relief Act; and (2) that, in any view of the matter, as the whole contract could not be specifically performed, the plaintiff has not satisfied the conditions mentioned in Section 12 and that the Court should not have decreed specific performance of a part of the contract. Counsel for the respondent in support of the Memorandum of Cross Objection contended that the Court should have decreed the specific performance in full as the 3rd defendant had implied authority to enter into the agreement of sale on behalf of the plaintiff and 4th defendant. He further contended that under Section 187 of the Contract Act, an agent's authority is stated to be implied when it can be inferred from the circumstances of the case. 7. I shall first consider the question as to whether the lower appellate Court was correct in granting the relief of specific performance and whether the appellant has made out any case for refusing the discretionary relief of specific performance. The fact that she entered into agreement of sale with the 7th defendant and that she received an advance amount of Rs. 1,000/- is admitted. Ext. B1 dated 17-10-1972 is the receipt executed by her for a sum of Rs. 1,000/-, received on that day as advance. The terms of the agreement are also clear from the recitals in Ext. B1. The only contention raised by the 3rd defendant against specific performance is that at the time of entering into the agreement she was not aware of the real nature and potentiality of the plaint property because of the coming into existence of Mangamooshi dam. Counsel for the appellant relied on a decision of the Madras High Court reported in Ramakrishna v. Palaniappa, AIR 1963 Mad 17. In that case, the defendant had no knowledge that a scheme for irrigation by digging a channel was in progress which had increased the value of the land to a considerable extent. But the plaintiff who had knowledge of it had suppressed it from the defendant and the price was also inadequate. It was also found in that case that the defendant wound up his business at Chidambaram and went away to his native place, that at the time of entering into the agreement he was not aware of the existence of a scheme for irrigation was in progress. In those circumstances, their Lordships held that the parties were not at equal footing, and the plaintiff was aware and the seller being ignorant of the real value of the land sold the bargain was oppressive and unconscionable and that it was not appropriate to grant the relief of specific performance. If the 3rd defendant, as alleged by her, was not aware of the existence of the dam and the value of the property on the date of the agreement of sale, there is force in her contention. It was also urged by counsel for the appellant that at the time the 3rd defendant was a widow who lost her husband just about six months prior to the date of the agreement and that the 2nd defendant being an advocate was able to obtain the agreement of sale by suppressing the real state of affairs. On going through the evidence I am satisfied that no condition exists on the facts and circumstances of this case which will warrant a refusal of a decree for specific performance. The 3rd defendant was examined in this case as D.W.1. She is a graduate. She had admitted that from 1968 onwards she was managing the properties of her husband who was laid up from that time and that she had a power-of-attorney also from him. The 4th defendant and her husband were in Germany from 1969. The plaintiff was also married in 1969 and her husband was in Kohima. She further admitted that the co-owners attempted to cultivate the property in 1958 and that it was a failure, that there was no cultivation of the land till 1972 and that she was not prepared to cultivate the land as it will end only in a loss. In her evidence she also stated that she enquired to Dr. Raghavan, the other co-owner, whether he was willing to purchase her share. He was not prepared to buy it. She admitted that she enquired about the price of the land with him. It is also admitted by her that there was a detailed discussion between her and Mr. Mohandas, the 2nd defendant regarding the price, that she demanded a price of Rs. 5,000/- and that after bargaining the price was fixed at Rs. 2250/-. It has come out in evidence that the plaintiff was also present at the time. The son-in-law of the 3rd defendant is also an attester to the document. It is her admitted case that none of her daughters or sons-in-law were prepared to cultivate the land. Over and above all, these, it has come out in evidence that, the Mangamooshi dam had come into existence in 1966 itself and that she had surrendered possession of her share to the 7th defendant. From the evidence it is clear that the 3rd defendant was quite competent to look after her affairs, that she made all enquiries regarding the price and other matters and that before entering into the agreement of sale she had every information regarding the property. From the evidence it is clear that the assertion of the counsel for the appellant that she was a helpless widow cannot be accepted and it is evident that the 3rd defendant was managing the affairs of her husband from 1968 and that she was aware of the value of the land at the time of entering into the agreement. No attempt is made by her to show that the price agreed upon for the one-third share is below the market value. It is pertinent in this connection to note that the whole property was purchased in 1957 for Rs. 300/ -. The one-third share was purchased by 2nd defendant in 1965 for Rs. 1500/- and the price agreed for the one-third share under the present agreement is Rs. 2,250/-. These facts indicate that the price agreed upon is reasonable. It is admitted by her that in 1972 under the agreement of sale possession was handed over to the vendee. It has come out in evidence that after the agreement the 2nd and 7th defendants together have improved the property and that the price also increased after 1972. On the evidence I am satisfied that on the date of the agreement the plaintiff was well-versed with the real nature of the property and that she is objecting to the execution of the sale deed only because the land was improved after 1972 by the 2nd defendant and the 7th defendant. The trial Court refused the relief of specific performance also on account of the fact that there was delay in filing the suit and counsel for the appellant reiterated that ground before me also. It is true that the suit was filed just before the expiry of the period of limitation. But it is well-settled that mere delay without any conduct of the plaintiff which would cause prejudice to the defendant is no ground for refusing the relief of specific performance. Unlike in England, in India the statute prescribes the period of limitation, and if the suit is within time, delay is sanctioned by law. In Satyanarayana v. Yelloji Rao, AIR 1965 SC 1405, construing Section 22 of the Specific Relief Act, 1877 (corresponding to Section 20 of the 1963 Act) their Lordships observed as follows (at p. 1409):- "(7) Mr. Lakahmaiah cited a long catena of English decisions to define the scope of a Court's discretion. Before referring to them, it is necessary to know the fundamental difference between the two systems - English and Indian -- qua the relief of specific performance. In England the relief of specific performance pertains to the domain of equity; in India, to that of statutory law. In England there is no period of limitation for instituting a suit for the said relief and, therefore, mere delay -- the time lag depending upon circumstances may itself be sufficient to refuse the relief; but in India mere delay cannot be a ground for refusing the said relief, for the statute prescribes the period of limitation. If the suit is in time, delay is sanctioned by law; if it is beyond time, the suit will be dismissed as barred by time; in either case, no question of equity arises." "(11) The result of the aforesaid discussion of the case law may be briefly stated thus: While in England mere delay or laches may be a ground for refusing to give a relief of specific performance, in India mere delay without such conduct on the part of the plaintiff as would cause prejudice to the defendant does not empower a Court to refuse such a relief. But as in England so in India, proof of abandonment or waiver of a right is not a pre-condition necessary to disentitle the plaintiff to the said relief, for if abandonment or waiver is established, no question of discretion on the part of the Court would arise. We have used the expression "waiver" in its legally accepted sense, namely, "waiver is contractual, and may constitute a cause of action: it is an agreement to release or not to ascert a right" see Dawson's Bank Ltd. v. Nippon Menkwa Kabushiki Kaisha, 62 Ind App 100 at p. 108: (AIR 1935 PC 79 at p. 82). It is not possible or desirable to lay down the circumstances under which a Court can exercise its discretion against the plaintiff. But they must be such that the representation by or the conduct or neglect of the plaintiff is directly responsible in inducing the defendant to change his position to his prejudice or such as to bring about a situation when it would be inequitable to give him such a relief." In this case there is no plea or any evidence that by the mere delay any prejudice has been caused to the defendant or that there is any change of situation which would make the granting of the relief of specific performance inequitable in any way. No circumstances exist in this case to refuse specific performance as contended by counsel for the appellant. The lower appellate court exercised the discretion properly in decreeing specific performance of the agreement. 8. The next contention of counsel for the appellant is that, in any view of the matter, as admittedly the 3rd defendant cannot specifically perform the whole of the contract, a decree should not have been passed as the conditions in Section 12 of the Specific Relief Act have not been complied with. Before considering the question it will be advantageous to consider the Memorandum of Gross Objection filed by the 7th defendant as to whether she is entitled to get a decree for specific performance of the entire agreement. If that is held in favour of the 7th defendant, the contention on the basis of Section 12 may not arise. It is clear from the facts of the case that the 3rd defendant had only a one-ninth right over the property. She agreed to sell one-third interest in the property belonging to herself the plaintiff and the 4th defendant. As the plaintiff and the 4th defendant were majors at the time of agreement, the 3rd defendant admittedly cannot enter into a contract to bind them. But the contention of counsel for the respondent is that the 3rd defendant was acting as the agent of her daughters also and that she had an implied authority to bind them also. He relied on the circumstances that the 3rd defendant was managing the entire property, that she was looking after the affairs of her daughters also and that in these circumstances she was acting as the agent of them in entering into the agreement. But it is clear from Ext.Bl itself that she was not acting as the agent of the plaintiff and the 4th defendant. In Ext. B1 it is stated that the 3rd defendant shall execute a sale deed along with her daughters also and there is no statement in it that she was acting as the agent of plaintiff and defendant No. 4. The recital in Ext.Bl itself is a negation of an agency and on the face of the recital therein it is difficult to accept the contention of counsel for the respondent that she acted as the agent of her daughters. As admittedly the 3rd defendant had only one-ninth she was competent to enter into an agreement only regarding her share and the agreement made by her will not affect the share of plaintiff or the 4th defendant. I confirm the finding of the lower appellate court on that point. 9. Now coming to the applicability of Section 12 it is contended by counsel for the appellant that this is a case which will come under Section 12(3) of the Specific Relief Act whereas counsel for the respondent contended that it will come under Section 12(4) of the Act. According to the respondent, the contract entered into by the 3rd defendant shall be treated as three separate and independent contracts in regard to her share and the shares of her daughters. As the agreement by the 3rd defendant regarding her share is independent of the agreement regarding the other shares, she is entitled to specific performance of her share at least by paying the proportionate value. Section 12(4) of the present Specific Relief Act corresponds to Section 16 of the Specific Relief Act, 1877. Section 16 of the Specific Relief Act came up for consideration before the Madras High Court in Abdul Aziz v. Abdul Sammad, AIR 1937 Mad 596. There, the defendant agreed to sell to plaintiff a plot of land in which he had only 1 / 3rd share and the remaining 2/3rd share belonged to his children. Out of the agreed consideration, certain sum was paid as advance also by the plaintiff, the contract became incapable of performance as the two sons were unable to fulfil it and in a suit by the plaintiff for specific performance of the contract the Madras High Court held "that as the contract was not divisible into two parts, one relating to a third of the plot and the other relating to the remaining two thirds, the Court could not substitute a new bargain and force a new contract) on the parties by decreeing the plaintiffs claim with respect to one-third share of the defendant, on payment of the price in proportion to that share. The specific performance of the contract with respect to the defendant's share could not therefore be granted under Section 16 of the Specific Relief Act". In Parthasarathi v. Venkata Kondiah, AIR 1965 Mad 188 it was stated as follows construing Section 16 of the Specific Relief Act, 1877 : 'A contract for sale of property in one lot will generally be considered as indivisible, as the conveyance of item 2 does not stand on a separate and independent footing'. 10. The facts of this case are in pari materia with the above case and I agree with the dictum laid down in that decision. The contract being indivisible and as the agreement relating to the share of the 3rd defendant does not have any independent existence Section 12(4) of the Specific Relief Act has no application. 11. Section 12(3) of the Specific Relief Act reads thus: "(3) Where a party to a contract is unable to perform the whole of his part of it, and the part which must be left unperformed either- (a) forms a considerable part of the whole, though admitting of compensation in money; or (b) does not admit of compensation in money; he is not entitled to obtain a decree for specific performance; but the court may, at the suit of the other party, direct the party in default to perform specifically so much of his part of the contract as he can perform, if the other party- (i) in a case falling under clause (a), pays or has paid the agreed consideration for the whole of the contract reduced by the consideration for the part which must be left unperformed and in a case falling under clause (b), pays or has paid the consideration for the whole of the contract without any abatement; and (ii) in either case, relinquishes all claims to the performance of the remaining part of the contract and all right to compensation, either for the deficiency or for the loss or damage sustained by him through the default of the defendant." The 3rd defendant had agreed to sell one-third right over the plaint property which belonged to her and her two daughters. Admittedly, she had only one-ninth share in the property. The daughters are not willing to join the sale deed. In these circumstances, it is clear that the 3rd defendant is unable to perform the whole contract. In other words, she is in a position to perform the contract only to an extent of one-third and the remaining two-third cannot be performed. It can thus be seen that the part which is left unperformed forms a considerable part of the whole contract. The phrase "admitting of compensation" implies that there are data for ascertaining a fair and reasonable amount as the money value of the difference between what can be performed and the express subject-matter of the contract. If a reasonable estimate of the amount, as the money value can be made, it will be a case where the compensation is ascertainable. The fair and reasonable compensation can easily be determined in this case with reference to the amount of sale consideration fixed for the original contract. The contract was in respect of a one-third share. As already noticed, two-third of it cannot be performed so that there is no difficulty in ascertaining the amount in difference between what can be performed and the subject-matter of the contract. In these circumstances, the ingredients of Clause (a) of Sub-section (3) of Section 12 of the Specific Relief Act are present in the instant case, 12. The further question to be considered is whether the 7th defendant (plaintiff in the specific performance suit) has satisfied the condition in Section 12(3)(ii). Counsel for the appellant contended that under the above subsection if a plaintiff wants performance of a part of a contract, he must relinquish all his claims to the performance of the remaining part of the contract and all right to compensation either for the deficiency or for the loss or damage sustained fay him through the default of the defendant. According to the 3rd defendant, there is no allegation in the plaint that she is prepared to do so and even in the courts below she had not relinquished her claims as contemplated under the above sub-section. It was further pointed out that even in this Court the plaintiff has filed a Cross Objection claiming specific performance of the whole contract and that in these circumstances, the plaintiff is not entitled to a decree as contemplated under Section 12(3) of a part of the contract. Counsel for the respondent (plaintiff in the specific performance suit) submitted that she is prepared to relinquish all her claims to the performance of the remaining part of the contract and all right to compensation either for the deficiency or for the loss or damage sustained by her through the default of the defendant in case this Court finds that the contract can be performed only in part. The question to be considered is at what stage is the relinqnishment to be made by the plaintiff. In Kalyanpur Lime Works v. State of Bihar, AIR 1954 SC 165 their Lordships of the Supreme Court held that the relinquishment of claim to further performance of the remaining part of the contract and of rights to compensation can be made at any stage of the litigation. In view of the above decision, it is clear that the relinquishment can be made at any stage of the litigation including the appellate stage. See also Parthasarathi v. Venkata Kondiah, AIR 1965 Mad 188. The claim of the plaintiff for grant of benefit under Section 12(3) cannot therefore be rejected on the simple ground that it was not made at the trial stage but has been made for the first time at the appellate stage. In my view, the claim also cannot be rejected on the ground that it was not incorporated in the plaint or was not set forth in writing before the trial court. In many cases, it may be doubtful and may require an enquiry and trial to come to a conclusion as to whether a person will be entitled to perform a contract only in part or not and to refuse relief to a plaintiff on the sole ground that re inquishment was not made at ar earlier stage will highly prejudice his right. In these circumstances, I feel that the plaintiff is entitled to performance of the contract in respect of the 3rd defendant's share in the property under Section 12(3) of the Act. 13. If the case comes under Section 12(3)(a), the plaintiff is entitled to specific performance of the agreement on her paying the agreed consideration reduced by the consideration for the part which must be left unperformed. But in this case, in view of the fact that the plaintiff was not prepared to relinquish her claim regarding part which could not be performed till the case came up before this Court, I feel that the plaintiff must be directed to pay the full consideration agreed upon for the whole property, namely Rs. 2250/-though she is entitled to get a decree only in respect of the share of the 3rd defendant. Counsel for the plaintiff also submitted before me that in case this Court feels that the whole price should be paid, he is agreeable to the same. In view of the above, I hold that the plaintiff will be entitled to a decree for specific performance of the share of the 3rd defendant in case she pays the whole consideration agreed upon and stated in Ext. B1. I also make it clear that the plaintiff has relinquished all her claims as contemplated under Section 12(3)(ii). 14. Coming to the partition suit, counsel for the appellants contended that the direction by the courts below that defendants 2 and 7 will be entitled to the value of improvements which they have made in the property is wrong. According to him defendants 2 and 7 being only co-owners of the property are not entitled to the same. On going through the evidence and judgments of the courts below I feel that this is a matter which has to be decided in the final decree proceedings. The question as to whether they are entitled to any improvements made in the property and the equities between the parties in that respect will be decided in the final decree proceedings. The direction for payment of value of improvements to defendants 2 and 7 is vacated subject to the above direction. 15. In the result, the two Second Appeals and the Cross Objection are disposed of as follows: In O.S. No. 83/76 the plaintiff is given a decree for specific performance of the contract to the extent of the share of the 1st defendant therein on the plaintiff paying the whole sale price less the amount already paid. On her depositing the amount, the 1st defendant therein shall execute the assignment to the extent of her share, failing which the court shall execute the assignment deed on her behalf at the expense of the plaintiff. The direction of the lower appellate court that the plaintiff shall be entitled to get back the expenses of the execution of the document from the 1st defendant is vacated. The decree in the partition suit is modified to the extent that the one-ninth share of Santha shall be allotted to Rathnam (plaintiff in the specific performance suit) in case she complies with the directions and gets the sale deed executed as decreed in O. S. No. 83/76. The question as to whether defendants 2 and 7 are entitled to any value of improvements which they have effected in the property shall be decided in the final decree proceedings and the finding in the judgment regarding that question is vacated. Subject to the above modifications the decrees in the two suits are confirmed. The parties shall bear their costs in this Court.

Author: P Krishnamoorthy

Smt. T.K. Santha And Ors. vs Smt. A.G. Rathnam And Ors. on 4 August, 1989

Kerala High Court

xx xx xx (iv) to be returned to the owner, on his executing a bond with or without sureties, for being sold under its appropriate name or, where the Magistrate is satisfied that the article of food is capable of being made to confirm to prescribed standards for human consumption after reprocessing, for being sold after reprocessing under the supervision of such officer as may be specified in order." JUDGMENT P.K. Mohanty, J. 1. Both the Criminal Revision arise out of the orders of the learned Sub-Divisional Judicial Magistrate (Sadar), Cuttack in rejecting the petitioner's application under section 11(5)(a)(iv) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as 'the Act'.) since common questions of fact and law are involved in both the Revision applications, with the consent and on agreement with the parties, they are heard analogously and disposed of by this common judgment. 2. The short facts of the petitioner's case is that on 1-9-1998, while the oil tankers carrying mustard oil were enroute from Alwar (Rajasthan) to M/s. Gulap Trader, Malgodown, Cuttack and Mahabir Oil Refineries, Jagatpur, Cuttack, the Food Inspector of Cuttack Municipality intercepted the oil tankers and seized the entire stock of mustard oil along with the relevant documents accompanying the tankers from respective drivers suspecting the mustard oil to be adulterated. He collected the samples and sent the same for analysis by the Public Analyst. On analysis, it was found that the mustard oil contained Iodine more than the permissible limit. The Food Inspector filed an application under section 11(4) of the Act for destroying the mustard oil, since according to the Public Analyst, the sample of mustard oil did not confirm the food standards. The petitioner filed application before the court for sending the second sample to the Director, Central Laboratory and the learned Magistrate allowed the same by order dated 10-11-1998. Undisputedly, the Central Laboratory also found that the sample did not confirm the food standard. 3. The petitioner filed applications under section 11(5)(a)(iv) of the Act for return of the seized mustard oil to it for the purpose of re-processing the oil and bringing it in confirmity with the food standard and further orders of the court. Objections were filed by the Food Inspector mainly on the ground that such application can only be filed by the owner inasmuch as, in absence of the finding that the adulterated oil is capable of being brought to a condition in confirmity with the food standard, the same is not maintainable. 4. The learned Magistrate in the impugned orders, on consideration of the case of respective parties, held that in view of the clear provision under section 11(5)(a)(iv) of the Act, the articles can be returned to the owner and since the owner has not filed the application, such application is not maintainable. 5. Sri Lal, learned counsel for the petitioners submits that the company being a juristic person, cannot be personally present, as has been erroneously held by the learned Magistrate and has to appear through some representative. In the present case, the power of attorney holder as the representative of the Company had appeared and filed application and, therefore, the learned Magistrate could not have taken any exception to such application and directed personal appearance of the Company. It is further submitted that undisputedly. M/s. Sarv Vyapi Agro Mills (P)Ltd, is the owner of the seized oil, inasmuch as, the notice sent by the Food Inspector was addressed to the said Company. The Company through its Director having executed a power of attorney appointing Girija Prasad as its power of Attorney Holder for filing application and to do all such things as would be required in connection with the case, there cannot be any objection as to whether the Company had made application under the aforesaid provisions. The learned counsel for the Municipality, however, in controverting the submissions made by the petitioner submits that although the petitioner-Company appeared through its representative, the real owner of the Company, who owns the food articles, have not yet appeared in court to make a prayer for return of the goods. It is his submission that the language of section 11(5)(a)(iv) of the Act is clear and unambiguous and it is the owner, who alone is entitled to make an application and that having not been done, a power of attorney holder could not have made the said application. It is further submitted that there was absolutely no material available on record that the learned Judicial Magistrate has come to finding that the articles can be brought to confirm the standard by re-processing the said oil and that there is chance of mis-utilising the seized articles. 6. In view of the submissions made, the limited question that needs determination, is as to whether the application filed by the power of attorney holder before the, learned Magistrate under section 11(5)(a)(iv) of the Act was maintainable. 7. It appears from the lower court records in both the cases that an application under section 11(5)(a)(iv) of the Act for return of the seized stock of mustard oil (Kachi Ghani) in the oil tanker for re-processing the same in order to bring it in confirmity with the prescribed standard, was filed on 19-1-1999. The petitions are not supported by any affidavit nor even verified by the petitioner or its power of attorney holder, from which it could be ascertained that the application has been made by the petitioner-company through its power of attorney holder. A copy of the power of attorney is also available on record which indicates that one Mahesh Gupta and Bisbnu Gupta, Directors of M/s. Sarv Vyapi Agro Mills (P) Ltd. appointed one Girija Prasad Gupta as their true and lawful attorney for the following purpose, which is quoted hereunder ; "for the purpose to sign Vakalatanama, engage lawyers, agent appear before all Government Office in all States of India representing the Company to sign, undertakes the petitioners received goods, stocks and do all such legal steps as may be required from time to time." 8. At this stage, the relevant provisions of law may be considered. Section 17 of the Act contemplates that where an offence under this Act was committed by a Company, the person, if any, who has been nominated under sub-section (2) to be in charge of, and responsible to, the company for the conduct of the business of the company and the company shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. Under sub-section (2), any company may, by order in writing, authorise any of its directors or 1 managers to exercise all such powers and take all such steps as may be necessary or expedient to prevent the commission by the company of any offence under this Act and may give notice to the Local (Health) Authority, in such form and in such manner as may be prescribed, that it has nominated such Director or Manager as the person responsible, along with the written consent of such Director or Manager for being so nominated. 9. The application has been filed by the petitioner under section 11(5)(a)(iv) of the Act, which may be quoted hereunder : ''11 (5). If it appears to the Magistrate on taking such evidence as he may deem necessary- (a) that the article of good produced before him under sub-section (4) is adulterated or misr branded, he may order it- Thus, on a bare perusal of section 11(5)(a)(iv) of the P.F.A. Act, it is clear that in case, the Magistrate after taking such evidence as he may deem necessary, finds that the articles of food produced before him under sub-section (4) is either adulterated or misbranded, he may order the same to be returned to the owner where he is satisfied that the article of food is capable of being made to conform to the prescribed standard for human consumptions after re-processing or being sold after re-processing under the supervision of such officer, as he may specify in the order. It is to be noted therefore that the articles can only be returned to the owner on his executing a bond in the aforesaid circumstances. 10. Now, therefore, the question arises as to who can apply for return of the articles of food adulterated or misbranded in case where a company is the accused. Admittedly, the petitioner M/s. Serv Vyapi Agro Mills (P) Ltd., a company incorporated under the Companies Act, is the owner of the articles seized and it has been arrayed as accused No. 2 while accused No. 1 in both the cases are drivers carrying the oil tankers. It is the specific stand of the petitioner-company that it has not nominated any person in terms of sub-section (2) of section 17 of the Act and, therefore, the persons contemplated in subsection (1) of section 17 may be held responsible for the offence committed. 11. A perusal of the applications of the petitioner under section 11(5)(a)(iv) of the Act discloses that a prayer was made before the learned Magistrate to direct release of them seized mustard oil in favour of the petitioner M/s. Sarv Vyapi Agro Mills (P) Ltd. permitting it to re-process the said seized mustard oil to bring it in confirmity to the standard either at Cuttack or Alwar on the terms to be fixed by the learned Magistrate, It is the contention of the learned counsel for the petitioner-company that the company had executed a power of attorney in favour of one Giriraj Prasad Gupta to do all such things as will be required in connection with the case and the application having been made by the power of attorney holder, the learned Magistrate ought to have held that the owner itself had made the application, 12. Section 305 of the Code of Criminal Procedure (hereinafter referred to as "the Code") prescribes the procedure when a Corporation or a registered society is an accused, which reads thus: "305. Procedure when corporation or registered society is an accused.-(1) In this section "Corporation" means an incorporated company or other body corporate, and includes a society registered under the Societies Registration Act, 1860 (21 of 1860). (2) Where a corporation is the, accused person or one of the accused persons in an inquiry or trial, it may appoint a representative for the purpose of the inquiry or trial and such appointment need not be under the seal of the Corporation. (3) Where a representative of a corporation appears, any requirement of this Code that anything shall be ' done in the presence of the accused or shall be read or stated or explained to the accused, shall be construed as a requirement that thing shall be done in the presence of the representative or read or stated or explained to the representative, and any requirement that the accused shall be examined shall be construed as a requirement that the representative shall examined. (4) Where a representative of a corporation does not appear, any such requirement as is referred to in sub-section (3) shall not apply, (5) Where a statement in writing purporting to be signed by the Managing Director of the Corporation or by any person (by whatever name called) having, or being one of the persons having the management of the affairs of the corporation to the effect that the person named in the statement has been appointed as the representative of the corporation for the purposes of this section, if filed, the court shall, unless the contrary is proved, presume that such person has been so appointed. (6) If a question arises as to whether any person, appearing as the representative or a corporation in an inquiry or trial before a Court is or is not such representative, the question shall be determined by the court." Thus, where a Corporation or a Company is an accused, it may appoint a representative for the purpose of enquiry or trial in a criminal court and the presence of such person is to be construed as the presence of the accused under and for the purpose of any requirement of the Code. Further, if question arises as to whether any person appearing as the representative of a Corporation in an enquiry or trial before a court is or is not such representative, the question has to be determined by the Court as contemplated under sub-section (b) of section 305 of the Code. 13. In that view of the matter, the Company could legally appoint its representative for the purpose of appearance of the enquiry and the trial. In the present case, it is stated that Sri Giriraj Prasad Gupta was authorised under the power of attorney to represent the Company. But on a perusal of the purported power of attorney executed by two of the Directors as quoted in Paragraph-7 (supra) clearly indicates that the power of attorney was executed for the purpose of signing of Vakaltnama, engage lawyer, agent, appear before all Government offices in the States of India representing the Company to sign undertakings, receive goods, stocks and takes all such legal steps as may be required from time to time. There is no specific mention, as to whether the power of attorney holder was authorised to take steps in the aforesaid criminal prosecution against his Principal, the accused Company and do all that is necessary to be done by the owner. If the company really intended that the power of attorney holder is to represent it in the present criminal cases, nothing prevented it from stating so in specific terms. In other words, it was required to execute a specific power of attorney for the purpose of the criminal proceeding against the Company. The power of attorney purportedly executed by the two Directors of the Company does not disclose that the holder thereof was authorised to represent the company in the aforesaid criminal proceedings and for taking steps on its behalf. It was executed for a general purpose to deal in Government offices and not in court matters, specifically pertaining to the present criminal cases instituted against the Company and therefore it could not have been otherwise acted-upon. The application under section 11(5)(a)(iv) also did not disclose that the same was filed by the power of attorney holder on behalf of the Company nor any affidavit was filed to that effect. Thus, such application could not have been and rightly not been entertained to be by a power of attorney holder on behalf of the company. 14. The learned Magistrate appears to have taken the view that the owner being required to take return the seized articles, it has to appear in person and make such application. It further appears that the learned Magistrate has not been able to appreciate that the accused being a company and thus a juristic person, it can only appear through its Managing Director as a representative as contemplated under section 305 of the Code of Criminal Procedure or a nominee as contemplated under section 17(2) of the Prevention of Food Adulteration Act. A reference to sub-section (3) of section 5 of the Code makes it abandently clear that the appearance of a representative of a company in any criminal proceeding would be construed as appearance of the company for the puipose of compliance with the requirement of the Code, However, the learned Magistrate is to satisfy himself, in terms of sub-section (6) of section 305 of the Code, whether or not the person appearing as the representative of the Company is or is not such representative. A reference may be made to the decision in Food Inspector, Cuttack Municipality, Cuttack v. D. P. Oil Mills Limited; 1995 Crl. L J. 3043 of this Court, wherein the scope of section 305 of the Code as well as section 17(2) of the Prevention of Food Adulteration Act has been explained. It has also been observed that in case the prosecutor does not know, whether the Corporation has nominated anybody under section 17(2) of the P. F. A. Act, the company has to aid the court as to or where the liability is to be fixed. 15. In view of the aforesaid analysis, the impugned order of the learned Magistrate to the extent it directs, the appearance of the Company and to make an application in that regard cannot be sustained in law and accordingly, the same is set aside. But however, if the petitioner makes a properly constituted application under section 11(5)(a)(iv) of the P. F. A, Act through its representative empowered/authorised under a duly executed power of attorney speci6cally for the purpose of the case, the same should be considered on its proper perspective in accordance with law and in the light of the observations made in the judgment. The Criminal Miscellaneous (revisions) are disposed of in the aforesaid terms. 16. Crl. revisions disposed of.

Author: P Mohanty

M/S Sarv Vyapi Agro Mills (P) Ltd. vs Jogesh Chandra Swain And Another on 7 November, 2000

Orissa High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.50842 of 2008 AJAI SINGH Versus STATE OF BIHAR ----------- 5. 28.06.2010 On repeated calls, none appears to press the bail petition. Accordingly, it is dismissed on account of non-prosecution. (C. M. Prasad, J.) Ravi/-

Ajai Singh vs State Of Bihar on 28 June, 2010

Patna High Court - Orders

ORDER 1. The respondents were initially appointed in Class IV posts. However, in 1988 since a few posts of typists were available, under the Staff Arrangement Scheme, the appellants on 29-11-1988 invited candidates from Class IV staff who had typing speed in Hindi/English of 25/30 words per minute to apply for ad hoc appointment as typists. It was made clear to all the candidates that they will be sent back to their original posts as soon as typists through the Railway Recruitment Board became available for those posts. 2. Accordingly, a typing test was held and the respondents were temporarily appointed as typists. It is the case of the appellants that the posts of typists were thereafter surrendered as a measure of economy and there were no available posts against which these 5 persons could be retained. Therefore, by an office order dated 7-10-1991 the respondents were reverted from the post of typists to the Class IV posts which they substantially held. 3. The respondents, however, challenged their reversion before the Central Administrative Tribunal. By the impugned judgment and order of the Tribunal the appellants were directed to reappoint the respondents. The Tribunal has given certain other directions as regards their position qua other daily-rated workmen. We fail to see how such directions could have been given when the initial appointment of the respondents was purely temporary and it was expressly subject to the condition that they would be reverted to their original Class IV posts as and when regular appointees through the Railway Recruitment Board would be available. The respondents contend that they could be reverted only on that one contingency of appointment of regularly selected typists. However, if the very posts against which the respondents have been appointed temporarily are themselves abolished, then there could be no question of a temporarily appointed person continuing to hold that non-existing post. The order of reversion to their original substantive post cannot be faulted in the present case. 4. If it is the grievance of the respondents that there are some other posts against which some other ad hoc or temporary appointments are made, they may make a suitable representation to the appellant, if they so desire, for consideration of their cases. The impugned order is, therefore, set aside and original applications are dismissed. The appeal is disposed of accordingly with no order as to costs.

Union Of India (Uoi) And Ors. vs Lakhpati Singh Verma And Ors. on 16 September, 1998

Supreme Court of India

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 2665 of 2010(G) 1. THE TROPICAL PLANTATION LTD., ... Petitioner Vs 1. THE ASST.COMMISSIONER (KVAT), ... Respondent 2. THE DEPUTY COMMISSIONER (APPEALS), 3. THE INSPECTING ASST.COMMISSIONER, For Petitioner :SRI.RAMESH CHERIAN JOHN For Respondent : No Appearance The Hon'ble MR. Justice P.R.RAMACHANDRA MENON Dated :28/01/2010 O R D E R P.R. RAMACHANDRA MENON, J. .............................................................................. W.P.(C) No. 2665 OF 2010 ......................................................................... Dated this the 28th January , 2010 J U D G M E N T The grievance of the petitioner is two fold; firstly in so far as the appeal before the appellate authority against the orders passed by the assessing authority are kept pending while coercive steps are being pursued against him and secondly Ext.P9 application preferred by the petitioner before the first respondent for giving effect to Ext.P8 order passed by the Tribunal in respect of the cause of action projected therein is still to be acted upon. 2. Heard the learned Government Pleader as well. 3. Considering the fact that the petitioner has approached the second respondent challenging Exts.P2 and P5 orders in respect of the assessment year 2006-07 by filing Exts.P3 and P6 appeals along with Exts. P4 and P7 petitions for stay, the second respondent is directed to consider and pass appropriate  W.P.(C) No. 2665 OF 2010 2 orders thereon in accordance with law. However, it is made clear that till such appropriate orders are passed on Exts.P4 and P7 petitions for stay, all further proceedings pursuant to Exts. P10 and P11 shall be kept in abeyance. Considering the grievance of the petitioner with regard to Ext. P9, the first respondent is directed to consider and pass appropriate orders on Ext. P9, in accordance with law, as expeditiously as possible at any rate within a period of two months from the date of receipt of a copy of the judgment. The Writ Petition is disposed of. P.R. RAMACHANDRA MENON, JUDGE. lk 

The Tropical Plantation Ltd vs The Asst.Commissioner (Kvat) on 28 January, 2010

Kerala High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM LA.App..No. 234 of 2008() 1. STATE OF KERALA ... Petitioner Vs 1. KRISHNA PILLAI PARAMESWARAN PILLAI ... Respondent 2. IASWARI AMMA, SUSEELA DEVI For Petitioner :GOVERNMENT PLEADER For Respondent :SRI.V.V.RAJA The Hon'ble MR. Justice PIUS C.KURIAKOSE The Hon'ble MR. Justice P.Q.BARKATH ALI Dated :28/05/2009 O R D E R PIUS.C.KURIAKOSE & P.Q.BARKATH ALI, JJ. ------------------------ L.A.A.No.234 OF 2008 ------------------------ Dated this the 28th day of May, 2009 JUDGMENT Pius C.Kuriakose, J. According to us, the judgment impugned in this appeal does not warrant any interference. The case pertains to acquisition of land in Panayam village for the purpose of railways pursuant to Section 4 (1) notification dated 7/7/1991. The land acquisition officer awarded land value at the rate of Rs.8581/- per Are, which was enhanced by the reference court to Rs.19760/- per Are. The evidence before the reference court consisted of Ext.A1 judgment and Ext.A2 sale deed, apart from the testimony of the claimant as AW-1. Absolutely no counter evidence was adduced on the side of the Government. Ext.A1 was the judgment in respect of a case relating to acquisition of the property in the same village pursuant to a notification which was five years earlier. Though the learned Subordinate Judge has not specifically relied on Ext.A1, we are of the view that Ext.A1 has some relevance since that property was in the same village. What the learned Subordinate Judge has done is to accept the  L.A.A.No.234/2008 2 oral testimony of AW-1 and refix the market value at Rs.19,760/- per Are. Even if Ext.A1 is relied on and addition is given for the passage of five years time, the value to be arrived at will be more or less same as the value now fixed by the reference court. 2. Under the above circumstances, we are of the view that the value fixed by the court below can be approved. The appeal will stand dismissed in limine. PIUS.C.KURIAKOSE,JUDGE P.Q.BARKATH ALI, JUDGE dpk 

State Of Kerala vs Krishna Pillai Parameswaran ... on 28 May, 2009

Kerala High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA COM PET No.2 of 1996 In the matter of Parshva Mining & Trading Co.Ltd. (In Liquidation) ----------- 41. 18.8.2011 Put up on 29th September, 2011. (Ramesh Kumar Datta,J.) Spal/

Parshva Mining & Trading Co.Lt vs Unknown on 18 August, 2011

Patna High Court - Orders

Court No. - 27 Case :- FIRST APPEAL FROM ORDER No. - 557 of 2003 Petitioner :- U.P. State Road Transport Corporation Thru G.M., Lucknow Respondent :- Smt. Munna & 2 Ors. Petitioner Counsel :- Prabhakar Tewari Respondent Counsel :- Q.M. Haque,G.P. Misra Hon'ble Devi Prasad Singh,J. Hon'ble S.C. Chaurasia J. List in the next week on the request of the learned counsel for the respondents. Order Date :- 8.1.2010 Rajneesh)

U.P. State Road Transport ... vs Smt. Munna & 2 Ors. on 8 January, 2010

Allahabad High Court

Court No. - 2 Case :- SERVICE BENCH No. - 9425 of 1990 Petitioner :- Ram Milan Respondent :- U.P.P.S.T.And Others Petitioner Counsel :- Surendra Kr Srivastava,Dr. L.P. Mishra,S.P. Shukla,V.K.Srivastava,Vinod Kuamr Respondent Counsel :- C.S.C. Hon'ble Uma Nath Singh,J. Hon'ble Devendra Kumar Arora,J. Learned State Counsel submitted that since the matter was not listed for actual date, he could not receive records from the department. List on 26.07.2010 for production of records. Order Date :- 14.7.2010 A. Katiyar

Ram Milan vs U.P.P.S.T.And Others on 14 July, 2010

Allahabad High Court

Court No. - 36 Case :- WRIT - C No. - 45492 of 2010 Petitioner :- F.R. Printers And Another Respondent :- State Of U.P. & Another Petitioner Counsel :- Ram Surat Saroj,NaVin Kumar Respondent Counsel :- C. S. C. Hon'ble Sheo Kumar Singh,J. Hon'ble Raiesh Chandra.J. As prayed, put up this matter as fresh on 6th August, 2010. Order Date :- 4.8.2010 Sachdeva

F.R. Printers And Another vs State Of U.P. & Another on 4 August, 2010

Allahabad High Court

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In Re: vs Veer Singh Advocate(Secretary ... on 11 August, 2010

Allahabad High Court

Court No. - 9 Case :- WRIT - C No. - 52837 of 2007 Petitioner :- Smt. Chitra Pahuja Respondent :- Union Bank Of India & Others Petitioner Counsel :- Gaurav Kumar SriVastaVa,S.K.SriVastVa Respondent Counsel :- Kushal Kant,S.C. Hon'ble Vi°ay Manohar Sahai,J. Hon'ble Mrs. J avashree Tiwari.J. List has been revised. No one appears to press this petition. The writ petition is dismissed in default. Stay order is Vacated. Order Date :- 9.7.2010 Monika

Smt. Chitra Pahuja vs Union Bank Of India & Others on 9 July, 2010

Allahabad High Court

Gujarat High Court Case Information System Print SCR.A/2664/2011 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION No. 2664 of 2011 ========================================================= NARENDRA RAMSINH - Applicant(s) Versus STATE OF GUJARAT & 2 - Respondent(s) ========================================================= Appearance : THROUGH JAIL for Applicant(s) : 1, MR KL PANDYA, APP for Respondent(s) : 1, None for Respondent(s) : 2 - 3. ========================================================= CORAM : HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 07/10/2011 ORAL ORDER The applicant-original accused of Sessions Case No.47 of 2005 for the offence punishable under Section 302 of the Indian Penal Code has filed present application for parole leave through jail on the ground to file appeal before the High Court. Heard Mr.K.L.Pandya, learned APP for the respondent State. Mr.Pandya read jail report and pointed out that the applicant has enjoyed interim bail and furlough. Therefore, he has contended that parole leave may not be granted to the present applicant. From the contents of the application I do not find any substance in the case. Hence this application stands dismissed. (Z. K. SAIYED, J) kks     Top

Author: Z.K.Saiyed,

Narendra vs State on 7 October, 2011

Gujarat High Court

JUDGMENT 1. This appeal under Clause 10 of the Letters-Patent of the High Court of Judicature at Patna has been preferred with respect to the order dated 24.11.99, passed by a learned Single Judge of this Court in CWJC No. 3201 of 1999 Bipin Bihari Prasad v. State of Bihar, whereby it has been held that the proceeding against Respondent No. 1 (the writ petitioner), under Rule 43(b) of the Bihar Pension Rules (hereinafter referred to as the Pension Rules) is bad in law in view of the provisions contained in proviso (a)(ii) to Rule 43 of the Pension Rules, which is to the effect that the impugned action is with respect to dereliction on the part of Respondent No. 1 said to have taken place four years prior to the institution of the proceeding. The State of Bihar has preferred the instant appeal. 2. A brief resume of facts will suffice. Respondent No. 1 herein was posted as an Assistant Engineer in the Western Kosi Embankment Team, Jamalpur, Darbhanga, in 1987-88. The Western Kosi Embankment got breached at two places during that period and, therefore, steps had to be taken to plug the breaches. Respondent No. 1 was called upon to make an estimate and submit the same for approval. After the work was completed and the bills had been paid, the concerned functionaries of the State Government found fault with the mode and manner in which the estimate was prepared and the bills had been passed. It was suspected that the estimate had been overblown which resulted in loss of revenue to the State of Bihar. In that view of the matter, the State Government had issued show-cause notice dated 12.5.81 (Annexure 1 to the writ petition), calling upon Respondent No. 1 to show cause with respect to the allegations against Respondent No. 1. It appears from the totality of circumstances that this show-cause notice was in terms of Rule 55A of the Civil Services, (Classification, Control & Appeal) Rules. 1930 (hereinafter referred to as 'CCA Rules'). Cause was shown by Respondent No. 1 by his communication dated 9.6.89 (Annexure 2 to the writ petition). The authorities thereafter referred the matter to the flying squad of the Engineering Department for verification which took some time. Before a final decision could be taken on the departmental proceeding so initiated in terms of Rule 55A of the CCA Rules, Respondent No. 1 superannuated from the service of the Bihar Government with effect from 30.6.97, The State Government, therefore, issued order dated 6.1.99 (Annexure 6 to the writ petition), converting the departmental proceedings to one under Rule 43(b) of the Pension Rules, on the heels of which the impugned order dated 12.1.99 (Annexure 8 to the writ petition) was issued whereby, in substance, the monthly pension of the petitioner has been reduced by 25%. 3. Aggrieved by this order dated 12.1.99 (Annexure 8 to the writ petition), the petitioner preferred the aforesaid CWJC No. 3201 of 1999, assailing the validity of the same on the ground that the alleged dereliction had taken place way back in 1987-88, the petitioner superannuated with effect from 30.6.97 the aforesaid order dated 6.1.99 (Annexure 6) is hit by the provisions of Clause (a)(ii) of the proviso to Rule 43 of the Pension Rules. The contention found favour with the learned Single Judge who has held in the impugned order that the proceeding under Rule 43, not having been initiated within four years of the institution of the proceeding under the Pension Rules, is bad in law. He has, therefore, set aside the aforesaid order dated 12.1.99 (Annexure 8), and passed consequential orders. 4. Mr. V.N. Sinha, learned GP IX, appearing for the appellant-State of Bihar, submits that the Hon'ble Single Judge has erred in taking the view that the proceeding in question is hit by Clause (a)(ii) of the proviso to Rule 43 of the Pension Rules. Departmental proceedings had already been initiated in terms of Rule 55A of the CCA Rules by communication dated 12.5.1989 (Annexure 1 to the writ petition). In his submission, once it is found that the departmental proceedings had already been initiated while the petitioner was still in service, the aforesaid provision of the Pension Rule is not in the facts and circumstances of the present case attracted. He relies on a Full Bench Judgment of this Court reported in 2000 (1) PLJR 665 Shambhu Sharan v. State of Bihar, He also relies on two judgments of this Court reported in 1998 (2) PLJR 744 Braj Kishore Prasad Srivastava v. State of Bihar 1999 (1) PLJR 766 Dr. Shyam Nand Singh v. State of Bihar which, in his submission, are to the same effect as the Full Bench. 4.1. Learned Counsel for Respondent No. 1 (the writ petitioner) submits in opposition that the explanation to Rule 43 defines departmental proceeding which is to the effect that the same shall be deemed to have been instituted when the charges framed against the petitioner are issued to him, or if the Government servant is placed under suspension from the earlier date. In his submission, the aforesaid communication dated 12.5.89 (Annexure 1) is in the nature of show-cause notice, and was not a charge-sheet, nor was he ever placed under suspension. 5. Having considered the rival submission, we are of the view that the contention advanced on behalf of the appellants must prevail. Learned Government. Pleader has rightly relied on the aforesaid Full Bench judgment which lays down to the effect that in a case where a disciplinary proceeding had already been started while the employee was in service even, if the person concerned attains the age of superannuation, the inquiry may be continued under Rule 43 of the Pension Rules, for the limited purpose of taking such action as provided under the said Rules even after such superannuation and for that purpose no specific or express order of the Government is necessary. It a appears that the judgment of the Full Bench was not brought to the notice of the Hon'ble Single Judge. In the conspectus of the entire proceedings, we are of the view that the aforesaid show-cause notice dated 12.5.89 (Annexure 1) was initiated in terms of Rule 55A which was a proceeding for minor penalty, which has had to be disposed of on the basis of representation. No specific charges are required to be framed and proved in a departmental proceedings with respect to minor penalty. In that view of the matter, the ratio of the aforesaid Full Bench judgment applies on all fronts to the present case. The departmental proceedings having been initiated while Respondent No. 1 was still in service, the same gets converted into one under Rule 43 of the Pension Rules by automatic operation of law, and a formal order of conversion does not in any way adversely affect the validity of the latter. However, as a measure of abundant precaution, the State Government had issued the order dated 6.1.99 (Annexure 6). converting the departmental proceeding into one under Rule 43 of the Pension Rules. We have no manner of doubt that in view of the legal position that such a formal order was not required to be issued but in fact was issued, does not render conversion of the proceeding bad in law. In that view of the matter, we disagree with the conclusion arrived at by the learned Single Judge that the proceeding under Rule 43(b) of the Pension Rules was bad in law, and conclude that the same was valid. 6. We would also like to notice the judgment of the Supreme Court relied on by the learned Counsel for Respondent No. 1, State of Bihar v. Mohd. Idris Ansari, (Supreme Court Section). It is manifest from a plain reading of the judgment that their Lordships were considering the validity of proceedings under the Pension Rules initiated after superannuation of the employee concerned. The judgment is an authority on the scope and ambit of Rule 43(b) and Rule 139 of the Pension Rules, and with respect to proceedings started thereunder after superannuation of the employee. On the contrary, we have already held hereinabove that the disciplinary proceeding against Respondent No. 1 in the present case had been initiated while he was in service. In that view of the matter, the aforesaid judgment of the Supreme Court in the case of Mohd. Idris Ansari (supra) does not apply to the facts and circumstances of the present case, and the issue is entirely covered by the aforesaid Full Bench judgment of this Court in the case of Shambhu Sharan v. State of Bihar. 7. Learned Counsel for Respondent No. 1 has also relied on proviso (c) to Rule 43(b) of the Pension Rules which is to the effect that the Bihar Public Service Commission shall be consulted before the final order is passed. We are unable to accede to this contention for two reasons. Firstly, this proviso applies in a situation where departmental proceedings have been instituted after the employee concerned has superannuated from the Government service. On the contrary, the position is altogether different in the present case, and we have already held hereinabove that the departmental proceedings against Respondent No. 1 had been initiated against him while he was in service. Therefore, proviso (c) to Rule 43(b) of the Pension Rules is not attracted in the present case. Secondly, Article 20(3) of the Constitution of India lays down that the Union Public Service Commission or the State Public Service Commission, as the case may be, shall be consulted on all the matters mentioned therein. This provision fell for consideration of the Supreme Court in the judgment State of U.P. v. Manbodhan Lal Srivastava and Ram Gopal Chaturvedi v. State of M.R. wherein it has been held that the provisions of Article 320(3) of the Constitution of India is directory in nature. The said judgment in the State of U.P. v. Manbodhan Lal Srivastava has been handed down by the Constitution Bench. Article 320(3) of the Constitution has lost must of its importance since the aforesaid decisions of the Supreme Court that while Article 311 confers a right upon the Government servant, Article 320(3)(c) does not confer any such right. The consultation prescribed by the sub-Clause is only to afford proper assistance to the Government in assessing the guilt or otherwise of the delinquent officer as well as the suitability of the penalty to be imposed. Article 311 is not controlled by Article 320(3). The omission of, or irregularity in, such consultation, does not give rise to any cause of action, the aggrieved officer has no remedy in a Court of law, nor any relief under the extra-ordinary powers conferred by Articles 32 and 226 of the Constitution can be granted. The Commission's function is purely advisory. The provision in question is quite similar to the provisions of Article 320(3) of the Constitution. In that view of the matter, we hold that failure on the part of the State Government to consult the Bihar Public Service Commission before passing the final order does not render the order in question illegal, apart from out earlier conclusion that the provision in question is not attracted to the facts and circumstances of the present case. 8. In view of .our conclusion hereinabove to the effect that conversion of the proceeding under Rule 43(b) of the Pension Rules was valid in law, we make it clear that it will be open to Respondent No. 1 (the writ petitioner) to prefer statutory appeal under Part XIII of the CCA Rules. The judgment of a learned Single Judge of this Court reported in 1997 (1) PLJR 841 Rajendra Prasad Singh v. State of Bihar and Ors., has been brought to our notice according to which, the appeal in such a case lies before the Governor of Bihar which has to be disposed of on merits, and the question of limitation, if any, shall not come in his way. 9. In the result, this appeal is allowed. The impugned order, dated 24.11.99, passed in CWJC No. 3201 of 1999 Bipin Bihari Prasad v. State of Bihar, is hereby set aside.

State Of Bihar And Ors. vs Bipin Bihari Prasad And Anr. on 16 August, 2000

Patna High Court

JUDGMENT Jawahar Lal Gupta, J. 1. The work of construction of Rail Level Platform at Dhandari Kalan had to be executed. The estimated cost was Rs. 1,96,44,0007-. Tenders were invited. The petitioner made an offer to do the job for an amount of Rs. 1,72,95,189/-. Respondent No.4 made an offer of Rs. 1,75,00,000/-. UItimately, the work was allotted to respondent No. 4. The petitioner alleges that the respondents were bound to allot the work to it as its offer was the lowest. Thus, it prays that the action of the respondents in making the allotment to respondent No. 4 be quashed. 2. We have heard Mr. D.S. Bali, learned counsel for the petitioner. He submits that in terms of the Circular dated January 15. 1999 the petitioner was entitled to the allotment of the work. 3. It is true that the petitioner's offer was slightly lower than that of the 4th respondent. However, it appears that vide letter dated January 3, 2002 the petitioner was directed to provide information regarding serviceable plants and machinery available with it. The details regarding the contractual payments received by it during the financial year were also sought. In reply, the petitioner had informed the respondents that the information has already been furnished vide letter dated January 12, 2002, The petitioner had not produced a copy of the letter dated January 3, 2002 by which the query was made. However, it has been shown to us during the hearing. A perusal of this letter shows that the respondent-authority had pointed out certain facts to the petitioner. It was mentioned that on scrutiny of the papers submitted by the petitioner along with the tender, it was seen that certain documents as required under the tender conditions had not been submitted. The details of documents sought by the respondents read as under: - "1. The list of serviceable plants and machinery available and proposed to be used for the work as per clause 2.3.2 of tender conditions. 2. Contractual payments received during each financial year during (the) last three years in original/attested by gazetted officer as per clause 2.3.2(A) of tender conditions, or Latest ITCC in original/attested by gazetted officer showing the contractual payments received during preceding three years as per clause 2.5.1 of tender conditions. 3. Constitution of the old firm/partnership deed/memorandum of article of association/power of attorney in original/attested by Notary Public with seal and revenue stamp thereon as per clause 2.4.1. tender conditions. 4. You have not submitted the details of works in hand as per Annexure-C (item 6). However, you are advised to submit details as per enclosed proforma." A copy produced by the counsel is taken on record as Mark 'A'. 4. The petitioner claims to have responded to this letter vide communication dated January 31, 2002. A copy of this letter has been produced. It is Annexure P-4. The petitioner merely stated that the information had already been submitted vide letter dated January 12, 2002. A copy of this letter is on record as Annexure P-5. It is after consideration of all the facts, etc. as disclosed by the petitioner, that the final decision to allot the work to respondent No. 4 was taken. 5. It is undoubtedly true that under the normal circumstances, the public authority should allot the work at the lowest cost. This is so because public funds must be carefully utilised. Yet, this rule cannot be absolute. The authority is entitled to consider all relevant circumstances including the capacity and capability of the contending parties. The cheapest may not always be the best. The quality and competence have to be kept in view. Has the authority followed this rule in the present case? 6. It is true that the petitioner had offered to do the work at a cost slightly lower than that for which the work has been allotted to respondent No. 4. But the authority appears to have examined the petitioner's suitability in the light of its capacity to execute the work. The authority had asked for relevant information. The reply was evasive. It is on consideration of the relevant facts that it has taken the final decision. Nothing has been produced before us to show that respondent No. 4 was not suitable or its experience was in any way less than that of the petitioner. Taking all the facts into consideration, we find that the action of the respondent-authority is not illegal so as to call for any interference under Article 226 of the Constitution of India. 7. No other point has been raised. 8. In view of the above the writ petition is dismissed in limine. Sd/- N.K. Sud, J.

Author: J L Gupta

Kumar Builders, Bathinda vs The Union Of India (Uoi) And Ors. on 22 March, 2002

Punjab-Haryana High Court

JUDGMENT D.K. Kapur, J. 1. This is an application under Section 454 of the Companies Act, 1956, in respect of M/s. Sipso Agencies (P) Ltd., a company in liquidation. This company was ordered to be wound up by the orders passed in C.P. No. 23 of 1973 which was filed by the Registrar of Companies, Delhi. The winding-up order was passed on 6th November, 1974. The applicant gave notices to the 6 respondents claiming that they were directors on the date of the winding-up order according to the records of the Registrar of Companies. It was stated that none of the respondents had applied for extension of time and some of them were not even served and hence it could be inferred that they were avoiding service. The official liquidator sought a direction from the court qua these persons. Two of the respondents had written to the official liquidator on this matter and their replies have been annexed as annexures " E " and " F ". The reply of Gajraj Singh is annexure " E ", in which he states that he ceased to be a director on 11th February, 1969, when he submitted his resignation. He claimed to have handed over the complete charge to Shri R. L. Kohly, respondent-No. 5, on 31st December, 1966. Similarly, there is a reply from respondent No. 2, Shri D. K. Mehra, stating that he had resigned on 14th January, 1969, and these facts had been noted in previous decisions of this court passed in C.P. No. 81 of 1969 on 24th November, 1969, and C.P. No; 53 of 1973 on 6th November, 1974. 2. Notices of this application were given to the respondents but no one filed a reply. It was stated before me at the last hearing that some of the directors had resigned earlier and judgments would be shown to me. In this connection Mr. Satish Chandra has shown me a judgment passed by the Judicial Magistrate, First Class, Delhi, in case No. 315/3, concerning respondents Nos. 3 and 4. He has also shown me some certified copies of other judgments. From these judgments and certified copies of other documents filed in those cases, it appears that the Registrar of Companies had accepted the position that respondents Nos. 3 and 4 had resigned in 1965. Thus, the claim of respondents Nos. 1 to. 4 is that they had resigned. Respondent No. 6 has also appeared before me and presented a written reply to the effect that he had resigned on 16th November, 1969. A similar written reply has been given on behalf of Gajraj Singh, respondent No. 1, to-day. An application, C.A. No. 458 of 1976, was moved on behalf of the respondent No. 2 and came before the court yesterday in which there was an affidavit stating that D. K. Mehra, respondent No. 2, had resigned on 14th January, 1969. Lastly, Shri R. L. Kohly, respondent No. 5, is present and he also states that he had resigned long ago though he cannot remember the date, but he will prove the same. Thus, the position of all the respondents is that they had resigned either in the year 1965 or 1969 or thereabouts. In any case, they all claim to have resigned long before the winding-up orders, which were passed on 6th November, 1974. 3. All the replies and documents filed are, in my view, of no effect in this case. Merely because all the directors had resigned in 1965 or 1969 does not mean that the court has become powerless to pass an order under Section 454 in accordance with the request of the official liquidator. In a previous case, I have expressed a view that an order can only be passed in respect of directors who were holding office within one year of the winding-up order, but on a closer examination of the section and the parallel provision in the English Act, I find that this interpretation does not seem to be sound. 4. I, now proceed to give my reasons for coming to the conclusion that persons who were directors even prior to one year before the winding-up order can be included within the category of persons against whom the official liquidator can obtain an order under Section 454. 5. The provisions of Section 454(2) require that a statement of affairs has to be submitted and verified by one or more of the persons who were at the relevant date the directors and by persons who were at that date the manager, secretary or other chief officer of the company. This is one part of the sub-section. The alternative part is : " or by such of the persons hereinafter in this sub-section mentioned, as the official liquidator, subject to a direction of the court, may require to submit and verify the statement". Thus, there are two groups of persons mentioned in the sub-section. The first category consists of persons who were directors on the relevant date and also the manager or other chief officer of the company on that date. The relevant date is defined in Sub-section (8) of Section 454 as being the date of appointment of the provisional liquidator or the date of the winding-up order. In the present case, I have also got the main winding-up petition, C.P. 53 of 1973, before me, and note that therein the winding-up order was passed on the petition of the Registrar of Companies oh 6th November, 1974. For the sake of completing the facts, I may mention that the ground on which the Registrar of Companies had sought the liquidation of the company was that there were disputes between the directors of the company who were shifting the responsibility for complying with these statutory requirements upon each other ; there was a complete deadlock in the management of the company and no balance-sheet had been filed after 31st December, 1966. It was further stated that enquiries by the office and through the police had revealed that the company had suspended its business over a year earlier. Among the facts stated in the petition was a claim that the assets of the company were Rs. 67,000 and odd and the liability was Rs. 42,000 or more. It was further stated in paragraph 10 that all the directors had been sent notices by the Regional Director, Northern Region, Company Law Board, Kanpur; and in response to those notices some replies had been given to the Regional Director. For instance, Gajraj Singh had stated that he handed over the charge of the company to Shri Kohly on 11th September, 1969, but Shri Kohly could not be served. Similarly, some of the other directors could not be served because they had left without address. Eventually, Shri Kohly was served on 16th December, 1972. During the winding-up petition, the ex-directors were made parties and Shri D. K. Mehra even at that stage wanted to say that he had resigned in 1969 and was no more liable in respect of the company sought to be wound up. Thus, it seems the common case of all the directors from the very beginning is that they had resigned earlier. 6. From these facts it is obvious that none of the directors can come into the first category mentioned in Section 454, because none of them appear to be the directors on the date of the winding-up order, which is the relevant date for this case. 7. The next question for consideration is whether the respondents can be included in the second category mentioned in the sub-section which consists of persons whom the official liquidator, subject to a direction of the court, may require to submit the statement. This class of persons has been sub-divided into four sub-classes. Firstly, there are persons who are or who have been officers of the company ; secondly, there are persons who have taken part in the formation of the company at any time within one year before the relevant date; thirdly, there are persons who have been in the employment of the company within that year and are in the opinion of the official liquidator capable of giving the information required and, fourthly, there are persons who have been employees of a company which was an officer of the company, within the said year. The question for consideration is whether there is any thing in the fourth sub-class which applies to this case, so as to bar an order being passed against the respondents who otherwise come into the first sub-class. 8. A little more analysis of the four classes included in this category is necessary. The first class consists of persons who are or who have been officers of the company. The directors are also within the category of officers, because the provision defining officers, Section 2(30), includes a director, managing agent, secretaries and treasurers, manager or secretary, etc., in the definition. Thus, there can be no doubt that a director is an officer. The first sub-class, therefore, includes persons who are directors before the relevant date. Thus, this second category is wide enough to enable an order being passed against all directors whether they have resigned earlier or not. However, the official liquidator can only get a statement of affairs from them if the court gives a direction to this effect. The only problem with regard to the application of this definition is whether it is inconsistent with the fourth sub-class which applies to certain officers within one year of the relevant date. Coming to the second subclass, it is quite clear that it refers to persons who had taken part in the formation of the company at any time within one year before the winding-up order or appointment of the provisional liquidator. There is no ambiguity in this class. The third sub-class consists of persons who have been in the employment of the company within that period of one year and who are, in the opinion of the official liquidator, capable of giving information. In this class may be included other employees of the company who were in the employment at least within a period of one year prior to the passing of the winding-up order. Finally, it is necessary to refer to the fourth sub-class which consists of certain officers within the same year. At first sight, there seems to be a contradiction between the first sub-class and the fourth sub-class; and I must confess that I have myself made this mistake in an earlier judgment. A close examination of the wording and that of the parallel English section, which is Section 235 of the Companies Act, 1948, explains the real distinction. I first reproduce the wording as given in the Act: "454. (2)(d) Who are or have been within the said year officers of, or in the employment of, a company which is, or within the said year was, an officer of the company to which the statement relates." 9. At first sight, this sub-section seems to refer to officers of the company which is being wound up, but this is not the correct and true meaning of this sub-section. In fact, it refers to officers employed by another company which is itself an officer of the company being wound up. In this connection, it is necessary to note that the term " officer " used in Section 2(30) includes firms and even corporate bodies which may be either managing agents, secretaries or treasurers. It is obviously not possible to call upon a corporate body to submit a statement of affairs on the footing that it is an officer. To meet this contingency this sub-clause provides for an order by the court directing the officers employed by a company, which is itself an officer of the company, submitting a statement of affairs. The wording of Section 235 of the English Act is in identical terms and this seems to be the interpretation placed on the section there also, although the definition of officer as given in Section 455 of the English Act is somewhat different. Thus, there is no contradiction between the first and fourth sub-classes. Consequently, ex-directors of a company, who resigned even more than one year before the winding-up order, can be directed to submit a statement of affairs. 10. In fact, the impossibility of getting a statement of affairs without giving a direction to a past director has been highlighted in the present case on account of the fact that all the directors claim to have resigned at least by 1969. The facts set out in the winding-up petition also show that the Company became more or less defunct in 1966, and may not have functioned at all after 1967. As the winding-up order had been passed in 1974, the choice with the court is either to say that no statement of affairs need be filed or to give a direction to the previous directors who were there in 1969, or earlier, for submitting a statement of affairs. Therefore, the choice with the court in the present case is an unavoidable one. I would normally not direct a person who had not been a director of the company for more than 5 or 6 years before the winding-up order to file a statement of affairs. In the circumstances of this case, where all the directors have claimed that they have resigned 5 or 6 years before winding-up orders, such a direction seems to be unavoidable. 11. It has been stressed by the learned counsel that I should go into the question as to who has got the books of account and should not pass a blanket order against all the respondents ; it is also stressed that some of the directors had genuinely resigned, and some are only raising this defense to avoid liability. It is urged that I should investigate this matter before passing an order under Section 454. In this connection, I find that the scope of the section is a limited one. The only direction sought by the official liquidator is an order against the directors directing them to file a statement of affairs. The section uses the words : "the official liquidator, subject to the direction of the court, may require to submit", which means that it is the official liquidator who is wanting the statement of affairs and he has to seek a direction from the court as to whether these are proper persons who should be asked to submit a statement of affairs. Having made this application, all I have to see is whether the respondents are the persons who are likely to give a statement of affairs concerning the company. As I cannot think of any other persons who can submit the statement, I would prefer to give a direction to all, rather than decide at this stage whether these persons are capable of giving the direction or not. Furthermore, a long drawn-out enquiry as to who has got the books and who is responsible for the defaults of the company is most uncalled for, and will naturally delay the proceedings beyond all reasonable bounds. Already, the winding-up order is more titan 2 years old. No statement of affairs has been submitted ; no books of account have been found, no assets are in the hands of the liquidator. If the enquiry is to be held now, it seems that the liquidation proceedings will be stultified and rendered otiose at this initial stage. I would, therefore, prefer to pass an order directing the respondents to file the statement of affairs. I make it clear that it is not necessary that all of them must file a statement of affairs but any one of them may file it, which will be sufficient compliance with the section. However, if none of them file a statement of affairs, then all will risk a prosecution, subject, of course, to any defense that may be open to them.

Author: D Kapur

Sipso Agencies P. Ltd. (In ... vs Gajraj Singh And Ors. on 4 August, 1976

Delhi High Court

IN THE HIGH couam er KARNATAKA AT BANQAQORE DATE? ?HIS THE 5?" DAY OF NOVEMBEE";OQS:% ' BEFGRE THE HON'BLE DR.JUsT:§3 K BaAxTBAv§TsA§A,_} CRIMINAL REVISION 9ET:T;éM NO.22.©F:?O¢5"V ' BETWEEN V " W 3m:wmwmmmmm,"* 310 RAMA NALK} _ 3;.' AGED ABOUT 41 gaARsP; Rio MUNDALLI VILLAGE BHATKaL'mALuK 3 _ av, ' 2 U?TARAYfiANNfiDA§fiISTR1CT"~y;PETITIONER {Bf 33$ §AM5Eé5$ g; ASK.j BRBU'wéGé?§A fiEBL3 'sfo_NAG&PPA HEELE RIG HEELS QILLAGE '»_BHATKAL"' ' V STTARAKANSADA ..RESPONDENT_jBy»éRx_s R HEGDE HUELAMANE, ADV.) «""éRL.é? IS FILED U/S 39? CR.P.C BY THE .7AbvocATa,FaR THE PETITIONER PRAYING T0 SET ASIDE TEE gusgagu? IN CRL.A.NO.59f01 DT.6.10.04 ON THE FILE er THE S.J., FAST TRACK COURT, KARWAR AND IN "..c.r3mL1244/00 GM THE FILE 0? THE JMFC, BHATKAL '=V sw,12.2.a1 AND ACQUI? THE PETITIONER. THIS FETITIQNT COMING ON FGR HEARING THIS _ DAY, THE COURT MADE THE FOLLOWING:

Author: Dr.K.Bhakthavatsala

Venkatramana S/O Rama Naik vs Babu Nagappa Heble S/O Nagappa ... on 6 November, 2008

Karnataka High Court

JUDGMENT Kurian Joseph, J. 1. The period of validity of a driving licence is the issue raised in this writ petition. In the impugned Ext.P2 award in O.P.(MV)No. 1092/1996 on the files of the Motor Accidents Claims Tribunal, Thalassery it was found that there is violation of the permit and policy conditions since the validity of the driving licence of the driver was only upto 9-12-1995. The accident took place on 6-1-1996. The renewal of licence is only on 15-1-1996. The contention of the learned Counsel for the petitioners - owner and driver, is that the licence is effective for a period of 30 days from the expiry. The contention of learned Counsel appearing for the respondent Insurance Company is that since the licence was renewed on 15-1-1996, the effect is only from the date of renewal and hence the driver involved in the accident which took place on 6-1-1996 did not have valid licence at that time and hence there is violation of permit/policy. In order to appreciate the rival contentions it is necessary to refer to two provisions -Sections 14 and 15 of the Motor Vehicles Act, 1988. Section 14 reads as follows:- 14. Currency of licences to drive motor vehicles. -- (1) A learner's licence issued under this Act shall, subject to the other provisions of this Act, be effective for a period of six months from the date of issue of the licence. (2) A driving licence issued or renewed under this Act shall. - (a) in the case of a licence to drive a transport vehicle, be effective for a period of three years: Provided that in the case of licence to drive a transport vehicle carrying goods of dangerous or hazardous nature be effective for a period of one year and renewal thereof shall be subject to the condition that the driver undergoes one day refresher course of the prescribed syllabus; and (b) in the case of any other licence,- (i) if the person obtaining the licence, either originally or on renewal thereof, has not attained the age of fifty years on the date of issue or, as the case may be, renewal thereof, - (A) be effective for a period of twenty years from the date of such issue or renewal; or (B) until the date on which such person attains the age of fifty years, whichever is earlier; (ii) if the person referred to in sub-clause (i), has attained the age of fifty years on the date of issue or as the case may be, renewal thereof, be effective, on payment of such fee as may be prescribed, for a period of five years from the date of such issue or renewal: Provided that every driving licence shall, notwithstanding its expiry under this Sub-section continue to be effective for a period of thirty days from such expiry. Section 15 to the extent relevant reads as follows: 15. Renewal of driving licences.-- Any licensing authority may, on application made to it, renew a driving licence issued under the provisions of this Act with effect from the date of its expiry: Provided that in any case where the application for the renewal of a licence is made more than thirty days after the date of its expiry, the driving licence shall be renewed with effect from the date of its renewal: A reading of Section 14 shows that a driving licence issued or renewed under the Act shall be valid and effective for the various periods stipulated under the sub-section. But the proviso to Sub-section(2) clearly stipulates that the licence either issued or renewed under the Act shall continue to be effective for a period of 30 days from the date of expiry of the period stipulated either in the licence originally issued or renewed thereafter. Section 15 however provides that driving licence is liable to be renewed on the application with effect from the date of the expiry. However, proviso to Section 15(1) makes it clear that once the licence is renewed on the basis of an application filed after 30 days from the date of expiry of the licence, then the renewal is only from the date of issue of renewed licence. The relevance for the 30 days provided under Section 15(1) proviso is the proviso to Section 14(2) regarding the continued effect of driving licence for a period of 30 days after the expiry of the period stipulated either in the licence originally issued or renewed thereafter. Therefore for the only reason that there is renewal of driving licence under proviso to Section 15, after thirty days of expiry of licence, it cannot be said that the effect of the licence ceases to exist before the 30 days period prescribed under Section 14(2) proviso. A driving licence is valid and effective for a period of 30 days after the date of expiry of the period shown in the licence. If the application for renewal is made within 30 days, the licence is valid and effective from the date of expiry shown in the licence, when renewed. If the application for renewal is after the expiry of 30 days from the date shown in the licence, the renewed licence is valid and effective only from the date of issue. 2. In the instant case the licence is admittedly valid upto 9-12-1995. Therefore, it has effect till 8-1-1996. Since the licence is renewed only on 15-1-1996 the licence does not have any effect from 8-1-1996 to 15-1-1996. As the date of accident is on 6-1-1996, the driver has a valid licence since the same is within the 30 days of the expiry of the validity. Therefore, there is no violation of the permit/policy conditions. Accordingly the writ petition is allowed setting aside Ext.P2 award dated 27-1-2001 in O.P.(MV)No. 1092/1996 on the files of the Motor Accidents Claims Tribunal, Thalassery to the extent it contains a declaration that the insurance is not liable to indemnify the insured.

Author: K Joseph

Rohini vs Kumaran on 28 February, 2006

Kerala High Court

ORDER P. Kunhamed Kutti, J. 1. This is a Petition filed by the petitioner in Crl. R.C. No. 1506 of 1962 on the file of this Court, under Sections 439 and 561-A of the Criminal Procedure Code for the Court, under Section 439 and 561-A of the Criminal Procedure Code for restoration to file of the said Crl. R.C. No. 1506 of 1962 dismissed by me on 12th November, 1963 2. That was Revision Case filed by the petitioner against the order of the learned Third Presidency, Magistrate; Saidapet, discharging the accused in a complaint filed by the petitioner under Sections 352, 448, 457, 427, 380, 506 and 120-B of the Indian Penal Code. The learned Magistrate examined in the case six witnesses and marked eight documents on the side of the petitioner and two documents on the side of the accused and came to the conclusion that sufficient material had not been furnished before him to justify a charge in respect of any of the offences against the accused. Against that order, the petitioner filed a Revision Petition in this Court. 3. The case was on the list for some days, and when it came up for hearing, the petitioner was absent and had no Counsel to represent him. In the circumstances. I looked into the papers and disposed of the case on merits holding that there was no justification to interfere with the order of discharge passed by the learned Magistrate. 4. Since the disposal was on merits, there is no reason to set it aside on the ground it was an ex pare disposal. This view has been consistently held by this Court in. Ranga Row v. Emperor 1912 Crl. L.J. 710, and in Subramaia Kandar v. Ramaswami Kandar (1948) 1 M.L.J. 406. In the last mentioned case Govinda Menon, J., held that a Revision dismissed for default of appearance could not be restored to file In Anthony Doss, In re (1963) M.L.J. (Crl.) 249, Sadasivam, J., had to consider a similar cases, where a Criminal Revision Petition was dismissed on. merits, when the petitioner and his Advocate were absent at the hearing. The learned Judge held that the petition could not be restored nor could the order be reviewed. He also observed that the High Court had no inherent power to alter or review its own judgment in a Criminal Case once it had been pronounced and signed. In the circumstances, it seems to me that there is no justification to set aside the order passed by me on merits in this case. 5. The petition is, therefore, dismissed.

Author: P K Kutti

C. Lakshmana Iyer vs Pubbi Setti Sethamma And Anr. on 15 January, 1964

Madras High Court

[Section 385(1)] [Section 385] [Complete Act]

Central Government Act

an> Title: Need to take effective steps to provide adequate potable water to Delhi. श्री सज्जन कुमार (बाहरी दिल्ली) : उपाध्यक्ष महोदय, राष्ट्रीय राजधानी दिल्ली में पीने के पानी का संकट बढ़ता ही जा रहा है। राजधानी सरकार पानी की आपूर्ति वभिन्न रुाोतों से करती है जिनमें भूजल रुाोतों से भी ट्रीटमेंट कर आपूर्ति की जा रही है किन्तु उत्तर प्रदेश सरकार से लखित समझौता न होने के कारण पानी की सप्लाई अचानक बंद की जाती है। भूजल की स्वच्छता के लिये राजधानी सरकार ने निरीक्षण किया है तथा निरीक्षण से पता चला है कि दक्षिण, पश्चिम तथा ग्रामीण क्षेत्रों में पानी की फ्लोराइड की मात्रा अंतर्राष्ट्रीय मापदंड के १ प्रति लीटर से २० गुना अधिक है जो कि स्वास्थ्य के उपयुक्त नहीं है और कई बीमारियों का मुख्य कारण है। अत: भूजल के पानी को पेय योग्य नहीं माना जायेगा जिस वजह से पानी की आपूर्ति पर अवश्य प्रभाव पड़ेगा। पानी की आपूर्ति राज्य का विषय है तथा राजधानी सरकार आपूर्ति के लिये प्रयत्नशील है किन्तु भूजल में फ्लोराइड की मात्रा अधिक होने से राजधानी सरकार चिन्तित है। भविष्य में राष्ट्रमंडल खेलों का आयोजन, अन्य खेलों का आयोजन तथा दिल्ली शहर को अंतर्राष्ट्रीय स्तर पर लाने को मद्देनज़र रखते हुए पानी का मामला समस्या से निपटने के लिये प्रभावकारी कदम उठाये जायें ताकि विदेशों में दिल्ली के पानी के विषय में कोई गलत संदेश न जाये। अत: मैं केन्द्र सरकार से आग्रह करता हूं कि इस पर गंभीरता से विचार कर राजधानी सरकार की समस्या से निपटने के लिये आवश्यक कार्यवाही की जाये। -------------

Need To Take Effective Steps To Provide Adequate Potable Water To ... on 5 December, 2006

Lok Sabha Debates

S. 15. Exclusion of time in certain other cases (1) ... ... ... ... ... ... ... ... ... ... (2) ... ... ... ... ... ... ... ... ... ... JUDGMENT S.N. Deedwania, J. 1. The Municipal Board, Nawa defendant-appellant has preferred this second appeal against the judgment and decree, dated September 5, 1969 of learned Munsif, Nawa in favour of the plaintiff respondent was affirmed. 2. Briefly stated the facts are these. Respondent Ganpatlal was an employee of the appellant and on 1-7-58 he was holding a post of a clerk. On 30-12-60, he was made a permanent employee of the appellant. Vide order, dated February 1, 1966, he was compulsorily retired with effect from the afternoon of February 18, 1966 (Ex. 7). The order is alleged to be Illegal and void because the respondent could only be removed or compulsorily mired from the service by the appointing authority i.e. the Municipal Board, Nawa and also because he was not compulsorily retired in accordance with the rules. The suit was resisted interalia on the ground that the respondent was a temporary employee. He submitted resignation vide letter dated June 3, 1965, which was accepted by the appellant. Another objection taken was that the unit was not within Imitation Both the courts below held that the suit was with limitation and the order of compulsory retirement dated February 1, 1966 (Ex. 7) was illegal and void. Learned appellate court held that the procedure for compulsory retirement of the Municipal employees was not followed. The Rajasthan Service Rules as amended from time to time are applicable to Municipal employees as provided under Rule 36 of the Rajasthan Municipal (Sub-ordinate and Ministerial Service) Rules, 1953 (hereinafter referred to and the Rules) The mandatory provisions of rule 244 of the Rajasthan Service Rules relating to compulsory retirement applicable to Municipal employees were not followed Therfore, order, dated February 1, 1966 (Ex. 7) could no be allowed to stand and was rightly struck down by the trial court. It further held that the respondent could have been compulsorily retired only of the appointing authority i. e. Municipal Board, Nawa. The appellate court considered the various resolutions namely Ex D/3 dated December 28, 1961 and Ex. D/6 dated May 1, 1963 and held that by these resolutions, a decision to compulsorily retire the respondent from the service was not taken. 3. I have heard the learned Counsel for the parties and perused The record of the case carefully. 4. It is argued in the apt instance that the appellate court was in error in coming to a conclusion that the suit was within limitation as two months period of notice could not be added to the limitation of 6 months prescribed under Section 271 of the Act. Under Section 271(1) of the Act, two months prior notice, is a condition precedent for filing a suit. Exclusion of this two months time is provided under Section 15(2) of the Limitation Act, 1963, which reads as under:(2)In compating the period of limitation for any suit of which notice has been given, or for which the previous consent or sanction of the Government or any other authority is required in accordance with the requirements of any law far the time being in force, the period of such notice or, as the case may be, the time required for obtaining such consent or sanction shall be excluded. Explanation-In excluding the time required for obtaining the consent or sanction of the Government or any other authority, the date on which the application was made for obtaining the consent or sanction and the date of receipt of the order of the Government or other authority shall both the counted Section 15 of the Limitation Act, therefore, provides that were a statutory notice has to be served by the plaintiff before instituting a suit, in computing the period of limitation, the period of notice in accordance with the requirements of the enactment must be excluded. It was thus observed in Jai Chand Sawhney v. Union of India 1970(I) SU (288: Under Section 15 of the Indian Limit it ion Act, 1908. where a statutory notice has to be served by the plaintiff before instituting any action, in computing the period of limitation, the period of notice in accordance with the requirements of the enactment must be excluded. The courts be low, therefore, rightly concluded that the suit was within imitation. 5. It is next vehemenly argued that the respondent was not compulsorily, retired. His services came to an end because of his resignation, The appellate court was in error in observing that the question of resignation was not pleaded in the written statement. I have considered the argument, which is cot tenable. In para 2 of the written statement, no doubt, it is pleaded that the respondent was removed on the basis of his resignation. However, it appears that this untenable case was not further adapted by the appellant. No issue was framed on this controversy. Toe issue was whether the order retiring the respondent was valid in view of para 3 of the written statement. The appellate court gave a definite finding that the respondent was net removed from service because o' any resignation on his part. The appellate court noticed para 2 of the written statement in its judgment and then thus observed No details and no particulars of such resignation have been given in the written statement when it was presented, when it was accepted aid by whom. Therefore, the pleading is vague. No issue has been raised over this pleading. Therefore, this point cannot be entertained. Of course it remains a fact that PW. 1 Ganpatlal at page 4 top of his statement admitted eSus rkjh[k 30&6&80 dks R;kx i= vo'; fn;k Fkk fdUrq HkwriwoZ ps;jeSu }kjk ml ;rk ds dkj.k etcwj gksdj ,slk fd;k x;k Fkk ftldk mYys[k eSus R;kx i= fn;k Fkk A There was no pleading by the defendant appellant that on such and such date and by such not such authority, this resignation was accepted. DW. 4 Bhanwarlal has stated at page 2 top. ^,y-lh-Mh- 5 x.kkiryky }kjk izLrqr fd;k x;k R;kx i= gS A But he does net state if this resignation was accepted. DW 1 Girirajsingh, DW 2 Mahaveer Prasad DW 3 Brijmohan & DW 5 Madansingh have stated nothing over the point. Therefore, the appellant can not help himself on the basis of Ex. D. 5. I am of the view that the appellate court committed no error in arriving at this finding, after noticing all the relevant evidence. It may be stated that the respondent gave the resignation on 3-6-65 but it is not case of the appellant that it was ever accepted-The respondent was not removed from service on 1-6-65 or soon after. He was removed from the service by an order, dated February 1, 1966 (Ex.7) No reference to the resignation of the respondent is made in this order. Mire over, it is specifically written in the order that as the work of the respondent has always been unsatisfactory, therefore, he is being compulsorily retired with effect from the after noon of 28-2-66. Thus, the appellant has totally failed to make oat a case that the resignation of the respondent was accepted and in consequence thereof his services came to end. There is no reason to hold that order, dated February 1, l966(Ex. 7) is not an order of compulsorily retirement. 6. It is an admitted position that procedure as provided in Rule 244 of the Rajasthan Service Rules was not followed before compulsorily retiring the respondent, Once, it is held that the respondent was compulsorily retired by order Ex. 7 without complying with the procedure as required by Rule 244 of the Rajasthan Service Rules, it is difficult to maintain, Ex. 7. 7. Ex. 7 suffers from another infirmity, in as much at the respondent could have been compulsorily retired only by the appointing authority The appellate court came to the conclusion after considering various documents that the appellant i.e Municipal Board, Nawa never took a decision to compulsorily retire the respondent and I see no reason to interfere with this finding. 8. I am, therefore, of the view that order Ex. 7 was rightly held to be illegal and void, and I see no reason la interfere with the judgment of the appellate court. 9. In the result, the appeal is dismissed with costs.

Author: S Deedwania

Municipal Board vs Ganpat Lal on 11 November, 1980

Rajasthan High Court

JUDGMENT Arthur Wilson, J. 1. This appeal has been brought against a judgment and decree of the Chief Court of the Punjab, which affirmed the decision of the District Judge of Delhi. The circumstances out of which the appeal arises can be briefly stated, and, as in their Lordships' opinion, the case must go back to the Chief Court for further consideration, their Lordships think it desirable to say nothing about the case which is not absolutely necessary. 2. In the year 1902, a case was pending, in which the National Bank of India was plaintiff and the Delhi Cotton Mills Company, Limited, defendant, and on the 21st April of that year, the Chief Court, on appeal, made a money decree in favour of the Bank for a sum of over Rs. 97,000 and interest. On the 25th June in the same year, the premises and mills of the Cotton Mills Company were purchased, as a going concern, by the present plaintiff, at public auction, for a sum very much larger than the amount of the Bank's decree. On the 15th August in the same year, the Bank, in execution of their decree, obtained an attachment of the premises purchased by the plaintiff, and possession was taken under that attachment. In the same month of August the present plaintiff filed a petition in the District Court alleging that the attachment was wrongful, and that he was compelled to pay the balance due under the Bank's decree. He paid into Court accordingly and thus released the property from the attachment. On the following day the now plaintiff filed a plaint against the Bank in the District Court, in which plaint he asked for two things-first for a decree for the amount which he had paid to release the property from attachment, and secondly for damages on the ground of the illegality of the attachment. 3. It is unnecessary to follow in detail the proceedings in the case. It is enough to say that on the 18th November, 1902, the District Court made an order deciding that the principal claim of the plaintiff, namely that relating to the sum paid to release the attachment was unsustainable in law. The learned Judge thus expressed himself: I therefore rule that the payment was entirely voluntary, and for plain, tiff's own interests, and that his remedy is under Sections 69 and 70 of the Contract Act against the Delhi Cotton Mills and I dismiss the case for recovery with costs. The case will proceed on the question of damages for illegal attachment. 4. Their Lordships are of opinion that so far as concerns the recovery of the money paid to discharge the attachment, this order of the District Court was a full determination, adverse to the plaintiff, of his claim in that respect. 5. On the 3rd December, 1902, the plaintiff petitioned that a decree might be drawn up embodying the dismissal of his claim for the money paid into Court. This petition was dismissed. 6. The claim for damages still remained, and evidence bearing upon it was proceeded with. On the 25th May 1903, the plaintiff asked to be allowed to withdraw his claim for damages under Section 373 of the Civil Procedure Code (that is to say with liberty to sue again) and again asked that a decree should be drawn up with reference to the claim dismissed. These applications were refused; and thereupon the plaintiff absolutely withdrew from the claim for damages, but not from that for the recovery of the money paid. 7. After that the defendant proceeded to give evidence upon all the issues which had been raised, the plaintiff not appearing. In the result the District Judge dismissed the whole case for default, under Section 102 of the Civil Procedure Code. 8. On appeal to the Chief Court, the majority of the learned Judges of that Court held that the suit having been dismissed under Section 102 of the Civil Procedure Code, no appeal lay, and against that decision the present appeal has been brought. 9. Their Lordships are of opinion that the case should not be allowed to stand as it does now. As to the principal claim of the plaintiff, that relating to the money paid to release the attachment, there was in substance a clear decision of the District Judge adverse to the plaintiff; after which, in substance" no question as to that claim remained open in the Court of first instance. 10. As to the second claim, that for damages, the plaintiff having unconditionally abandoned his claim, there remained nothing in substance to be tried. 11. The case in their lordships' opinion was one not proper to be dealt with under Section 103 of the Civil Procedure 12. Their lordships are of opinion that it is unnecessary to decide whether an appeal lies against a dismissal regularly made under Section 102, because they think that that section was not applicable to the present case. They think it necessary that the case should go back to the Chief Court to decide the appeal upon its merits. In the course of the argument, several minor points were raised which it seems desirable to notice. One was with reference to the evidence already taken in the case, and the use to be made of that evidence. A second point was, with reference to the refusal of the first Court to issue a Commission. The third was with reference to the refusal of the Court to allow the cross-examination of a learned gentleman who had appeared as Counsel in the earlier stages of the case. 13. These are matters upon which it appears undesirable for their lordships to express any opinion. Such matters can be dealt with by the Chief Court when considering the case on the merits. 14. Their lordships will humbly advise His Majesty that the decree of the Chief Court should be discharged with costs, and that the case should be remitted to that Court in order that the appeal to that Court may be heard and decided on its merits, and that the costs incurred in the District Court should abide the result of such appeal. 15. The respondents must pay the costs of this appeal.

Author: A Wilson

Kanhaya Lal vs The National Bank Of India on 9 March, 1910

Bombay High Court

Court No. - 38 Case :- WRIT - A No. - 37782 of 2010 Petitioner :- Pravindra Kumar Awasthi Respondent :- State Of U.P. & Others Petitioner Counsel :- Vinay Kumar Srivastava,Abhisekh Srivastava Respondent Counsel :- C.S.C. Hon'ble Shishir Kumar,J. Learned Standing Counsel appearing for the respondents may file a counter affidavit within four weeks. Petitioner will have two weeks, thereafter, to file a rejoinder affidavit. List after expiry of the aforesaid period. Implementation of the order impugned will be subject to the decision of the writ petition. Order Date :- 2.7.2010 NS

Pravindra Kumar Awasthi vs State Of U.P. & Others on 2 July, 2010

Allahabad High Court

ORDER 1. The question raised in this case is as follows: "Whether the term 'value of goods' used in Rule 14 of the Rajasthan Municipalities (Octroi) Rules, 1962 (hereinafter referred to as 'the Rules') includes the excise duty chargeable on the goods though has not been incorporated in the bills or invoice produced by the dealer." 2. The dispute in this case is about valuation of goods for the purpose of levy of octroi duty under the Rajasthan Municipalities (Octroi) Rules, 1962. The Division Bench of the High Court came to the conclusion that if the invoice of the seller did not include excise duty as an element of the value of the goods sold, the octroi duty will have to be calculated on the value as shown in the invoice. There is no way excise duty could be added back for the purpose of valuation of the goods. This view is based on the argument that taxation will be according to the full value "as given in the original bill or invoice". We are of the view that this argument is without any substance and the High Court should have rejected it. 3. The rule relating to determination of valuation of goods is as under: "14. Determination of the value of goods for assessment of octroi.--(1) Before the octroi duty is paid the original invoice (bijak) bearing the signature of the selling dealer or the despatching agent, if any, shall be produced and may be considered valid and accepted as evidence of the value of the goods. The original or its copy produced by the person bringing the goods shall be pasted on the bill-cum-receipt in Form 2. (2) All goods, on which an ad valorem octroi is leviable will be taxed according to their full value as given in the original bill or invoice (bijak). Note.--Full value includes all taxes or excise duty and charges but does not include, railway freight, commission or other incidental charges on the goods." 4. Excise duty is an indirect tax. The seller is entitled to include the excise duty in the value of the goods for the purpose of passing on the burden of the duty to the consumer. The rule has been drafted on the assumption that excise duty and other duties will be included in the value of the goods. The Note to Sub-section (2) of Section 14 puts the matter beyond doubt when it says "full value includes all taxes, excise duty and charges". Octroi duty is to be levied on the "full value" of the goods. If the assessee does not include excise duties or other taxes payable on the goods in his invoice then the invoice value will not be treated as "full value" of the goods. The amount of excise duty payable on such goods will have to be added to the invoice value of the goods. The construction suggested on behalf of the assessee and accepted by the High Court leaves open the door for tax evasion. All that the dealer has to do to avoid payment of full amount of octroi duty is to exclude excise duty and other taxes payable on the goods from his bill. It is not the case of the assessee that the seller did not pass on the burden of excise duty to the consumer but decided to bear the burden himself. 5. The view taken by the Division Bench in this case has already been overruled by a Bench of three Judges of the Rajasthan High Court where it has been held that for determination of value of goods on which ad valorem octroi duty is payable, "full value" will include excise duty even if such duty has not been included in the value shown in the original bill. We are in agreement with this view expressed in the case of Jasveer Singh Shiv Dayal and Party v. Municipal Board, Sawai Madhopur. 6. The appeal is allowed. The judgment under appeal is set aside. There will be no order as to costs.

Municipal Council, Alwar vs P.R. Daga And Anr. on 19 November, 1997

Supreme Court of India

IN THE HIGH COURT OF KERALA AT ERNAKULAM WA No. 1629 of 2007() 1. GAYATHRI M., W/O. HARIDAS, ... Petitioner 2. LATHIKA M., W/O. MURALEENATH, 3. SHEENA M.P., W/O. SANTHOSHKUMAR, 4. SMITHA N., W/O. BABY, 5. SASITH N., W/O. PRABHAKARAN, 6. SATHEEDEVI K., W/O. AJAYAKUMAR, Vs 1. THE KOZHIKODE CORPORATION, ... Respondent 2. STATE OF KERALA, 3. KUDUMBASREE STATE MISSION, For Petitioner :SRI.DEVAPRASANTH.P.J. For Respondent : No Appearance The Hon'ble MR. Justice K.S.RADHAKRISHNAN The Hon'ble MR. Justice ANTONY DOMINIC Dated :09/07/2007 O R D E R K.S.Radhakrishnan & Antony Dominic, JJ. ======================== W.A.No.1629 of 2007 ======================== Dated this the 9th day of July, 2007. JUDGMENT Radhakrishnan,J. Counsel for the appellants submitted that they are proposing to make a representation before the Government referring to Ext.P8 order. Representation if so advised may be filed within two weeks from today. In the event of such, the second respondent will consider the same and pass orders in accordance with law after taking into consideration Ext.P8 also. Orders would be passed within a period of three months from the date of receipt of the representation after hearing the appellants and the Kozhikode Corporation. Writ Appeal is disposed of as above. K.S.Radhakrishnan, Judge. Antony Dominic, Judge. ess 9/7 

Gayathri M. vs The Kozhikode Corporation on 9 July, 2007

Kerala High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.19312 of 2011 Md. Enayat Rasool @ Anayat Rasool Versus The State Of Bihar & Ors ----------- 2. 15.7.2011 As prayed for, defect no.15 shall be considered at the time of admission. PNM (Shailesh Kumar Sinha, J.)

Md. Enayat Rasool @ Anayat Rasool vs The State Of Bihar & Ors on 15 July, 2011

Patna High Court - Orders

ORDER R.J. Kochar, J. 1. The petitioner, a statutory corporation established under the Bombay Road Transport Corporation Act, 1950, engaged, inter alia, in the activity of transporting passengers from one destination to another has filed this petition, being aggrieved by the award and order dated July 6, 1992 passed by the Labour Court, Solapur directing the petitioner to reinstate the respondent No. 1 workman with 50% back wages. The facts of the petition are as follows: 2. The respondent workman was employed by the petitioner corporation in 1975 as a Driver. He was charge sheeted and dismissed from employment after holding a domestic enquiry in accordance with the rules framed by the petitioner. The show cause notice which was issued to the respondent workman was for absence from duty with effect from November 28, 1984 to November 30, 1984; December 28, 1984 to December 6, 1984 and December 11, 1984 to January 16, 1985 without prior notice, information and permission. He did not take part in the domestic enquiry also, and therefore, the petitioner was compelled to hold the enquiry ex-parte in the absence of the respondent workman. After the dismissal, the respondent workman raised an industrial dispute for reinstatement with full back wages and continuity of service. The said dispute was referred for adjudication to the Labour Court. The Labour Court found the order of dismissal not proper and legal and held that the extreme punishment of dismissal for the period of absence was shockingly disproportionate and, therefore, quashed and set aside the order of dismissal directing reinstatement of the respondent workman with 50% back wages. 3. The petitioner being aggrieved by the said order challenged the same under Article 227 of the Constitution of India. It is clear from the record that the interim stay of the order impugned herein was not granted and Rule was issued only on the question of back wages. In view of rule being restricted only to the question of back wages, the order of reinstatement has been given effect to by the petitioner. It is an admitted fact that the respondent workman is presently working with the petitioner corporation. 4. Shri Sawant, the learned advocate for the petitioner, submits that even the grant of 50% back wages to the respondent workman is not legal, proper and justifiable. He has pointed out the past record of the workman that he was in the habit of remaining absent from time to time unauthorisedly and without prior intimation. During his 15 years of service, he was punished for 7 times for absenteeism. He has also pointed out that once in the year 1979, he was even dismissed from employment for absenteeism but in the departmental appeal filed by the respondent workman the appellate authority took a lenient view and reappointed the respondent workman. The learned advocate for the petitioner, therefore, submits that though the corporation had always taken a lenient view, there was no improvement in the attendance of the respondent workman, and therefore, finally the corporation was left with no alternative but to resort to the extreme punishment of dismissal. The past record of the workman is reflected in para 7 of the impugned order. There is no dispute about the said past record of the respondent workman and his absence from time to time. Shri Dalvi, the learned advocate for the respondent workman, however has stated that the respondent workman had in fact, submitted his leave applications and that there were number of difficulties for which the respondent workman was remaining absent. I do not find any substance in the said submissions advanced on behalf of respondent workman. He has also submitted that by depriving the workman of 50% back wages, he has been sufficiently punished and he has also not filed any counter petition for the same. I do not agree with the said submissions. The petitioner industry is a different one in nature. It caters to the needs of the public at large which comprises the passengers who cannot afford to avail the facility of rich transport. The drivers who are employed to drive the public vehicles, if remained absent in the manner in which the respondent workman has remained, it does, cause great inconvenience to the people and there is great inconvenience caused to the management also to arrange for alternate driver, who may not be available on the spot. The inconvenience caused on account of abrupt or sudden absence of the employees is obvious, particularly, the drivers engaged to drive the public vehicles. The petitioner corporation has not resorted to the extreme punishment at the very first instance of absenteeism of the respondent workman. The petitioner has tolerated him for quite some time and ultimately when there was no improvement in his behaviour, the petitioner dismissed the respondent workman. During the tenure of 15 years if the respondent workman was punished for as many as 7 times for remaining absent unauthorisedly, in my opinion, on the 8th time he has been rightly dismissed from employment. Since our Court has interfered with the punishment under Section 11-A of the Industrial Disputes Act and ordered reinstatement, which has been accepted by the petitioner corporation, that is the end of the matter. In any case, I am not at all inclined to put the premium of 50% back wages which would cause monetary burden on the public which has already suffered hardships and inconvenience on account of the habitual absenteeism of the respondent workman. In fact the respondent workman should have shown improvement in his attendance when he was punished for 7 times. In spite of the said punishment, the respondent workman did not show any improvement, and therefore, the petitioner was left with no alternative but to resort to the extreme punishment of dismissing the workman in the year 1985 when the respondent workman again remained absent for the period stated hereinabove. 5. According to me, the petitioner should not even be burdened with the amount of 50% back wages. Since the petitioner has reemployed the respondent workman and he is still in service, I am not inclined to put an additional burden of 50% back wages on the petitioner corporation. I, therefore, quash and set aside the order of the Labour Court so far as grant of 50% back wages is concerned. It is however made clear that the petitioner shall grant and treat the respondent workman in continuous service without any break for all purposes from the initial date of employment condoning the break given to him in the year 1979. 6. Shri Sawant, the learned advocate for the petitioner makes a statement that if the respondent workman is (not) given continuity of service, he will be duly given continuity of service for all purposes. 7. I, therefore partly allow the petition by confirming the order of the Labour Court so far as reinstatement of the respondent workman is concerned. The order of the Labour Court so far as it relates to payment of 50% back wages is concerned the same is quashed and set aside. 8. It is however made clear that since at the time of admission of this petition, the respondent workman was only treated as re-employed and was not given continuity of service, he will be duly given the benefit of continuity of service for all purposes including his pay scale and difference in wages, paid and actually payable as a result of continuity of service, if any. 9. With these directions the petition is disposed of with no orders as to costs. Certified copy of this Order is expedited.

Author: R Kochar

Divisional Controller, ... vs Rajjak Abbas Shaikh And Ors. on 15 November, 1999

Bombay High Court

JUDGMENT R.M. Lodha, J. 1. Heard Mr. Deepak Chitnis, learned Counsel for the petitioners and Mr. M.N. Bhatkal, learned counsel for the respondent Nos. 1 and 2. 2. The petitioner was initially employed as clerk with Union Bank of India-respondent No. 1 (hereinafter referred to as "Bank") in the year 1964. She was promoted as officer in December, 1975. At the time of promotion the petitioner was working at Tardeo Branch. She was transferred to L. D. Ruparel Marg Branch at the close of business on 25th August, 1983. On 5th August, 1985 she was transferred to Veer Nariman Road branch from L. D. Ruparel Marg. The petitioner was chargesheeted of certain acts and omissions while working as an officer at Tardeo branch. The allegation against the petitioner was that an amount of Rs. 2,42,374.35 was allowed to be fraudulently withdrawn from the accounts maintained by M/s. Kapasi Co-operative Housing Society at Tardeo Branch for the period from 1981 onwards. According to the charges, 91 cheques which were forged were passed for payment by the petitioner although the signatures of the drawer of cheques did not tally with the specimen signatures on record at the branch. After holding the enquiry, the Disciplinary Authority by order dated 31st December, 1985/9th August, 1986 imposed major penalty of reduction upon the petitioner by six stages in the time scale of pay. The said order of punishment passed by the Disciplinary Authority came to be challenged by the petitioner in appeal under the Union Bank of India Officer Employees (Discipline and Appeal) Regulations, 1976 (for short, "Bank Regulations"). The Appellate Authority by order dated 14th November, 1986 dismissed the appeal holding that penalty imposed upon the petitioner was commensurate with the misconduct committed and found guilty. The Appellate Authority was of the view that there was no reason to interfere with the order of Disciplinary Authority. By means of this writ petition, the petitioner seeks to challenge the order of the Appellate Authority dated 14th November, 1986 affirming the order of the Disciplinary Authority dated 31st December, 1985/9th August, 1986. 3. In response to the writ petition, the counter has been filed by the Bank. Inter alia plea of the Bank is that against the order of the Appellate Authority affirming the order of Disciplinary Authority, the petitioner filed review petition before the reviewing authority and during the pendency of review petition, the writ petition has been filed; the said reviewing authority by order dated 21st September, 1988 rejected the review petition but the said order was not challenged immediately thereafter and only in the year 2001 chamber summons was taken out seeking amendment in the writ petition proposing to challenge the order dated 21-9-1988 passed by Reviewing Authority but the said chamber summons has been rejected and as a result of which the order dated 21-9-1988 is not under challenge. The stand set up by the bank is that the order of the Disciplinary Authority as well as the order of Appellate Authority have merged in the order of the Reviewing Authority and the said order of Reviewing Authority being not under challenge, the petition is liable to be dismissed without going into merits. Be it noted that the counter was filed by the Bank on 25th October, 1989 along therewith copy of the order of Reviewing Authority dated 21-9-1988 was also annexed. The petitioner did not take any steps in challenging the order dated 21-9-1988 as soon as copy of the counter was served upon the petitioner. It was only in the year 2001 when the writ petition was called out for hearing that the petitioner took out chamber summons No. 36 of 2001 seeking leave of the Court for amendment in the writ petition by proposing to challenge the order of Reviewing Authority dated 21-9-1988. The Chamber summons was dismissed on 23-4-2001 by the following order :-- "1. Heard Mr. Chitnis for the petitioner and Mr. Bhatkal for the respondent No. 1. 2. This Chamber summons has been taken out by the petitioners seeking amendment in the writ petition as per Schedule annexed thereto. By way of amendment, the petitioners seek to challenge the order dt. 21-9-1988 passed by the reviewing authority. The Chamber summons has been taken out on 22-3-2001 i.e. more than 12 years after the order was passed by the reviewing authority. 3. In support of the Chamber summons the petitioner has in fact admitted that copy of the order dated 21-9-1988 passed by the reviewing authority was received by her on 12-12-1988 and that she had given the said order to her erstwhile Advocate. It is stated that the erstwhile Advocate did not advise her to challenge the said order passed by the reviewing authority dt. 21-9-1988. In the affidavit-in-support, it is further mentioned that her erstwhile Advocate Mr. P.R. Dalmia expired on 22-1-2001 and thereafter, she engaged the services of M/s. Chitnis Vaithy and Co. to represent her in the said matter. 4. In this background, it is prayed that the petitioner be permitted to amend the writ petition by challenging the order dated 21-9-1988 passed by the reviewing authority. 5. In opposition to the Chamber summons taken out by the petitioners, the respondents have filed the affidavit-in-reply and have set out the defence that at such a belated stage, the proposed amendment does not deserve to be granted. 6. We find ourselves in agreement with the objection raised by the respondents and are of the view that the proposed amendment does not deserve to be granted after a lapse of more than 12 years. There is no dispute that the petitioner was served with the order dated 21-9-1988 passed by the reviewing authority as early as on 12-12-1988. Not only that in the counter affidavit filed by the respondents in opposition to the writ petition, way back on 25-10-1988, it was stated therein that the reviewing authority vide order dated 21-9-1988 has dismissed the petitioners review application challenging the order of the disciplinary authority. Thus, it is clear that way back in the year 1988, itself, not only by way of counter affidavit filed by the respondents in opposition to the writ petition the petitioner was informed that the reviewing authority has dismissed the review application vide order dt. 21-9-1988 but, also the said order dt. 21-9-1988 was served upon the petitioner on 12-12-1988. Even on 27-1-2000 when the writ petition was called out for hearing and final disposal, the present Advocate appearing for the petitioner, appeared but still no steps were taken by him and now, on 22-3-2001 the present Chamber summons seeking amendment in the writ petition has been taken out which being grossly belated does not deserve to be granted. We accordingly dismiss the Chamber Summons." 4. The petitioner challenged the order dated 23-4-2001 in Special leave to Appeal (Civil) No. 11242 of 2001 before the Supreme Court. The Special Leave Petition was dismissed by the Apex Court on 17-9-2001 by following order :-- "Heard the learned counsel for the parties. Impugned order passed by the High Court refusing to grant amendment in the writ petition does not call for any interference at this stage. The special leave petition is dismissed." 5. The question before us is whether the order of Disciplinary Authority dated 31st December, 1985/9th August, 1986 and the order of the Appellate Authority dated 19-11-1986 have merged in the order of the Reviewing Authority dated 21-9-1988 and if yes, in the situation like this when the order of Reviewing Authority dated 21-9-1988 is not under challenge as petitioner's chamber summons seeking amendment in the Writ Petition by challenging the order of reviewing order dated 21-9-1988 has been rejected, whether the writ petition is liable to be dismissed without going into merits. 6. Mr. Chitnis, learned counsel for the petitioner invited our attention to Rule 18 of Bank Regulations and submitted that as the Reviewing Authority has neither modified the orders of the Disciplinary Authority and the Appellate Authority nor decided to enhance the punishment, the orders of the Disciplinary Authority and the Appellate Authority cannot be said to have merged into the order of Reviewing Authority. According to Mr. Chitnis in the order of affirmance passed by Reviewing Authority, the order of Disciplinary Authority and that of Appellate Authority cannot be said to have merged. He relied upon the judgment of the Apex Court in State of U. P. v. Mohammad Nooh, AIR 1958 SC 86, in support of his proposition. 7. On the other hand, Mr. Bhatkal, learned counsel appearing for the bank relied upon the seven Judge Bench judgment of the Apex Court in S.S. Rathore v. State of Madhya Pradesh, , and submitted that the order of Disciplinary Authority and the order of Appellate Authority have merged in the order of the Reviewing Authority and since the order of reviewing authority dated 21-9-1988 is not under challenge, merits of the contentions raised in the writ petition do not deserve to be gone into and the writ petition deserves to be dismissed on this ground alone. 8. We have reflected over the matter and considered the Bank Regulations of 1976 and the judgments of the Apex Court cited at Bar. The Bank Regulations have been made in exercise of the powers conferred by Section 19 of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 in consultation with the Reserve Bank of India and with the previous sanction of the Central Government. The Regulations apply to all officer employees of the Bank and inter alia it provides for the penalties which may be imposed on the officer employee for an act of misconduct or for any other good and sufficient reason. The Bank Regulations provide for authority to institute disciplinary proceedings and impose penalties and procedure for imposing major penalties as well as minor penalties. Regulation 7 reads thus:-- "7. Action on the inquiry report; (1) The Disciplinary Authority if it is not itself the Inquiring Authority, may, for reasons to be recorded by it in writing, remit the case to the inquiring Authority for fresh or further inquiry and report and the inquiring Authority shall thereupon proceed to hold the further inquiry according to the provisions of Regulation 6 as far as may be. (2) The Disciplinary Authority shall, if it disagrees with the findings of the Inquiring Authority on any Article of Charges, record its reasons for such disagreement and record its own findings on such charge, if the evidence on record is sufficient for the purpose. (3) If the Disciplinary Authority having regard to its findings on all or any of the Articles of Charge, is of the opinion that any of the penalties specified in Regulation 4 should be imposed on the Officer Employee it shall, notwithstanding anything contained in Regulation 8, make an order imposing such penalty. (4) If the Disciplinary Authority having regard to its findings on all or any of the Articles of Charge, is of the opinion that no penalty is called for, it may pass an order exonerating the Officer Employee concerned." 9. An officer employee may appeal against an order imposing upon him any of the penalties specified in Regulation 4 or against the order of suspension referred to in regulation 12 under Regulation 17. Regulation 17 reads thus :-- 17. Appeals:-- (i) An Officer Employee may appeal against an order imposing upon him any of the penalties specified in Regulation 4 or against the order of suspension referred to in Regulation 12. The Appeal shall lie to the Appellate Authority. (ii) An appeal shall be preferred within 45 days from the date of receipt of the order appealed against. The appeal shall be addressed to the Appellate Authority and submitted to the authority whose order is appealed against. The authority whose order is appealed against shall forward the appeal together with its comments and the records of the case to the Appellate Authority. The Appellate Authority shall consider whether the findings are justified or whether the penalty is excessive or inadequate and pass appropriate orders. The Appellate Authority may pass an order confirming, enhancing, reducing or setting aside the penalty or remitting the case to the authority which imposed the penalty or to any other authority with such direction as it may deem fit in the circumstances of the case. "Provided that:-- (i) if the enhanced penalty which the Appellate Authority proposed to impose is a major penalty specified in Clauses (e), (f), (g) and (h) of Regulation 4 and an inquiry as provided in Regulation 6 has not already been held in the case, the Appellate Authority shall direct that such an enquiry be held in accordance with the provisions of Regulation 6 and thereafter consider the record of the inquiry and pass such orders as it may deem proper. (ii) if the Appellate Authority decides to enhance the punishment but an enquiry has already been held as provided in Regulation 6, the Appellate Authority shall give a show-cause notice to the Officer Employee as to why the enhanced penalty should not be imposed upon him and shall pass final order after taking into account the representation, if any, submitted by the Officer Employee." 10. The Regulations provide that Reviewing Authority may call for record of the case within six months of the date of final order and after reviewing the case pass an appropriate order. Regulation 18 which empowers power of review to the Reviewing Authority reads thus :-- "18. Review : Notwithstanding anything contained in these Regulations, the Reviewing Authority may call for the record of the case within six months of the date of the final order and after reviewing the case pass such orders thereon as it may deem fit. Provided that:-- (i) if any enhanced penalty, which the Reviewing Authority proposes to impose, is a major penalty specified in Clauses (e),(f), (g) and (h) of Regulation 4 and an enquiry as provided under Regulation 6 has not already been held in the case, the Reviewing Authority shall direct that such an inquiry be held in accordance with the provisions of Regulation 6 and thereafter consider the record of the inquiry and pass such orders as it may deem proper. (ii) if the Reviewing Authority decides to enhance the punishment but an inquiry has already been held in accordance with the provisions of Regulation 6, the Reviewing Authority shall give show cause notice to the Officer Employee as to why the enhanced penalty should not be imposed upon him and shall pass an order after taking into account the representation, if any, submitted by the Officer Employee." 11. A close reading of the aforesaid Regulations leave no manner of doubt that a delinquent officer employee has been given right of appeal under regulation 17 to the Appellate Authority against the order of Disciplinary Authority and such orders may be assailed before the Reviewing Authority in review under regulation 18. The Bank Regulations, thus, provide for appeal and review against the order of Disciplinary Authority. In S.S. Rathore, the seven Judge Bench of the Apex Court ruled that powers of adjudication ordinarily vested in Courts are being exercised under the law by tribunals and other constituted authorities and in respect of many disputes the jurisdiction of the Court is now barred and there is a vesting of jurisdiction in tribunals and authorities and therefore, there is no justification in drawing distinction between the Courts and tribunals in regard to the principle of merger. The Apex Court took into consideration its earlier judgments viz., Sita Ram Goel v. The Municipal Board, Kanpur and Ors., , State of U. P. v. Mohammad Nooh AIR 1958 SC 86, Madan Gopal Rungta v. Secretary to the Government of Orissa , Collector of Customs, Calcutta v. East India Commercial Co. Ltd. and Somnath Sahu v. The State of Orissa . Sita Ram Goel's case has been overruled by the seven Judge bench of the Apex Court in S. S. Rathore. In Mohammad Nooh, the Apex Court in paragraph 12 and 13 of the report held as follows :-- "12. It is not disputed that our Constitution is prospective in its application and has no retrospective operation except where the contrary has been expressly provided for. It has been held in a series of decisions of the High Courts, some which arc referred to in the judgment under appeal, that Article 226 and Article 227 have no retrospective operation and transactions which are past and closed and the rights and liabilities which have accrued and vested would remain unaffected. The correctness of this principle has not been questioned by the High Court when dealing with the present case and has not been disputed before us. It is, therefore, conceded that if the matter had rested with the order of dismissal passed by the District Superintendent of Police on April 20, 1948, and the order passed by the Deputy Inspector General of police on June 7, 1949, dismissing the appeal and confirming the order for the dismissal of the respondent, an application for a writ under Article 226 would not lie in this High Court to set aside those orders as this was not one of the High Courts that had writ jurisdiction before the Constitution. It is, however, contended that the order of dismissal dated April 20, 1948, had merged in the order passed on appeal on June 7, 1949, and that both the orders merged in the order passed by the inspector General of police on April 22, 1950, on the revision application. It is said that the revisional jurisdiction is a part of the appellate jurisdiction and the principle on which a decree of the Court of first instance in a civil suit merges in the decree on appeal applies with equal force to an order made on an application for revision and consequently both the orders passed by the District Superintendent of police and that passed on appeal by the Deputy inspector General of Police merged in the order passed on revision by the Inspector General of Police on April 22, 1950. To put it shortly, the contention of the respondent is that the order of dismissal passed on April 20, 1948, became final only on the passing of the order in revision on April 22, 1950, and as that order was passed after the date of the commencement of the Constitution, its validity could be called in question on an application under Article 226. 13. There appear to be two answers to the foregoing contention. As we have already observed an order of dismissal passed on a departmental enquiry by an officer in the department and an order passed by another officer next higher in rank dismissing an appeal therefrom and an order rejecting an application for revision by the head of the department can hardly be equated with any propriety with decrees made in a Civil Suit under the Code of Civil Procedure by the Court of first instance and the decree dismissing the appeal therefrom by an appeal Court and the order dismissing the revision petition by a yet higher Court, as has been sought to be done by the High Court in this case, because the departmental tribunals of the first instance or on appeal or revision are not regular Courts manned by persons trained in law although they may have the trappings of the Courts of law. The danger of so doing is evident from what has happened in the very case now before us, in the next place, while it is true that a decree of a Court of first instance may be said to merge in the decree passed on appeal therefrom or even in the order passed in revision, it does so only for certain purposes, namely, for the purposes of computing the period of limitation for execution of the decree as in Batuk Nath v. Munni Dei, 41 Ind. App 104 = AIR 1914 PC 65 (H), or for computing the period of limitation for an application for final decree in a mortgage suit as in Jowad Hussain v. Gendan Singh, 53 Ind. App. 197 = AIR 1926 PC 93 (I), But as pointed out by Sir Lawrence Jenkins in delivering the judgment of the Privy Council in Juscurn Boid v. Pirthichand Lal, 46 Ind. App. 52 = ILR 46 Cal 670 at pp. 678 and 679 = AIR 1918 PC 151 at pp. 152-153 (J), whatever be the theory under other systems of law, under the Indian Law and procedure an original decree is not suspended by the presentation of an appeal nor is its operation interrupted where the decree on appeal is merely one of dismissal. There is nothing in the Indian Law to warrant the suggestion that the decree or order of the Court or tribunal of the first instance becomes final only on the termination of all proceedings by way of appeal or revision. The filing of the appeal or revision may put the decree or order in jeopardy but until it is reversed or modified it remains effective. In that view of the matter the original order of dismissal passed on April 20, 1948 was not suspended by the presentation of appeal, by the respondent nor was its operation interrupted when the Deputy Inspector General of Police simply dismissed the appeal from that order or the Inspector general simply dismissed the application for revision. The original order of dismissal, if there were no inherent infirmities in it, was operative on its own strength and it did not gain any greater efficacy from the subsequent orders of dismissal of the appeal or the revision except for the specific purposes hereinbefore mentioned. That order of dismissal having been passed before the Constitution and rights having accrued to the appellant State and liabilities having attached to the respondent before the Constitution came into force, the subsequent conferment of jurisdiction and powers on the High Court can have no retrospective operation on such rights and liabilities. Even if the order of dismissal of the respondent was a nullity on the ground that it was passed by disregarding the rules of natural justice, the High Court could not properly be asked to exercise its newly acquired jurisdiction and powers under Article 226 to correct errors, irregularities or illegalities committed by the inferior departmental tribunal before the commencement of the Constitution, for then there will be no limit to its going backward and that will certainly amount to giving the provisions of Article 226 a retroactive operation. This aspect of the matter does not appear to have been pressed in the High Court or adverted to by it. It is only on this ground that we are constrained, not without regret, to accept this appeal." 12. Mohammad Nook's case came up for consideration before Apex Court in Madan Gopal Rungta (supra). The Constitution Bench stated thus:-- "We are of the opinion that the principle of Mohd. Nook's case, 1958 SCR 595 = AIR 1958 SC 86, cannot apply in the circumstances of the present case. The question there was whether the High Court would have power to issue a writ under Article 226 in respect of a dismissal which was effective from 1948. simply because the revision against the order of dismissal was dismissed by the State Government in April 1950 after the Constitution came into force. It was in those circumstances that this Court held that the dismissal having taken place in 1948 could not be the subject-matter of an application under Article 226 of the Constitution for that would be giving retrospective effect to that Article. The argument that the order of dismissal merged in the order passed in appeal therefrom and in the final order of revision was repelled by this Court on two grounds. It was held (firstly) that the principle of merger applicable to decrees of Courts would not apply to orders of departmental tribunals, and (secondly) that the original order of dismissal would be operative on its own strength and did not gain greater efficacy by the subsequent order of dismissal of the appeal or revision and therefore the order of dismissal having been passed before the Constitution would not be open to attack under Article 226 of the Constitution. We are of opinion that the facts in Mohd. Nooh's case, 1958 SCR 595 = AIR 1958 SC 86 were of a special kind and the reasoning in that case would not apply to the facts of the present case." 13. Before yet another Constitution Bench of the Apex Court in Collector of Customs, Calcutta v. East India Commercial Co. Ltd., Calcutta and Ors. (supra). Mohammad Nooh was relied upon by the Respondent. In para 7 of the Report, the Apex Court observed :-- "7. The main reliance however of the respondent both in the High Court and before us is on the decision in the State of Uttar Pradesh v. Mohammad Nooh, 1958 SCR 595 = AIR 1958 SC 86. That was a case where a public servant was dismissed on April 20, 1948 before the Constitution had come into force, his appeal from the order of dismissal was dismissed in May 1949 which was also before the Constitution came into force. His revision against the order in appeal was dismissed on April 22, 1950, when the Constitution had come into force, and the question that arose in that case was whether the dismissed public servant could take advantage of the provisions of the Constitution because the revisional order had been passed after the Constitution came into force. In that case, this Court certainly held that the order of dismissal passed on April 20, 1948, could not be said to have merged in the orders in appeal and in revision. It was pointed out that the order of dismissal was operative of its own strength as from April 20, 1948 and the public servant stood dismissed as from that date and therefore it was a case of dismissal before the Constitution came into force and the public servant could not take advantage of the provisions of the Constitution in view of the fact that his dismissal had taken place before the Constitution had come into force. As was pointed out in Madan Gopal Rungta's case , Mohammad Nooh's case, 1958 SCR 595 = AIR 1958 SC 86, was a special case, which stands on its own facts. The question there was whether a writ under Article 226 could be issued in respect of a dismissal which was effective from 1948. The relief that was being sought was against an order of dismissal which came into existence before the Constitution came into force and remained effective all along even after the dismissal of the appeal and the revision from that order. It was in those special circumstances that this Court held that the dismissal had taken place in 1948 and it could not be the subject-matter of consideration under Article 226 of the Constitution, for that would be giving retrospective effect to the Article. The argument based on the principle of merger was repelled by this Court in that case on two grounds, namely, (i) that the principle of merger applicable to decrees of Courts would not be applicable to departmental tribunals, and (ii) that the original order would be operative on its own strength and did not gain greater efficacy by the subsequent order of dismissal of the appeal or revision. In effect, this means that even if the principle of merger were applicable to an order of dismissal like the one in Mohammad Nooh's case, 1958 SCR 595 = AIR 1958 SC 86, the fact would still remain that the dismissal was before the Constitution came into force and therefore the person dismissed could not take advantage of the provisions of the Constitution, so far as that dismissal was concerned. That case was not concerned with the territorial jurisdiction of the High Court where the original authority is within such territorial jurisdiction while the appellate authority is not and must therefore be confined to the special facts with which it was dealing. We have therefore no hesitation in holding consistently with the view taken by this Court in Musaliar's case as well as in Amritlal Bhogilal's case, , that the order of the original authority must be held to have merged in the order of the appellate authority in a case like the present and it is only the order of the appellate authority which is operative after the appeal is disposed of. Therefore, if the appellate authority is beyond the territorial jurisdiction of the High Court it would not be open to it to issue a writ to the original authority which is within its jurisdiction so long as it cannot issue a writ to the appellate authority. It is not in dispute in this case that no writ could be issued to the appellate authority and in the circumstances the High Court could issue no writ even to the original authority. We therefore allow the appeal, set aside the order of the High Court and dismiss the writ petition with costs." 14. The seven Judge Bench of the Apex Court in S.S. Rathore while considering Mohammad Nooh in para 14 of the Report held : "14. The distinction adopted in Mohammad Nooh's case AIR 1958 SC 86 between a Court and a tribunal being the appellate or the revisional authority is one without any legal justification. Powers of adjudication ordinarily vested in Courts are being exercised under the law by tribunals and other constituted authorities. In fact, in respect of many disputes the jurisdiction of the Court is now barred and there is a vesting of jurisdiction in tribunals and authorities. That being the position, we see no justification for the distinction between Courts and tribunals in regard to the principle of merger. On the authority of the precedents indicated, it must be held that the order of dismissal made by the Collector did merge into the order of the Divisional Commissioner when the appellant's appeal was dismissed on 31-8-1966." 15. In view of the authoritative pronouncement by Severn Judge Bench of the Apex Court, the legal position is well crystalised that the doctrine of merger is equally applicable to the tribunals and authorities having powers of adjudication and in discharge of quasi-judicial functions. The view to the contrary is no longer good law. Mohammad Nooh's case relied upon by the learned counsel for the petitioner has been considered and explained by two Constitution Benches of the Apex Court in Madan Gopal Rungta and Collector of Customs and the seven Judge Bench of the Apex Court in S.S. Rathore and we need not say anything further except reiterating that Mohammad Nooh's case was a case of special kind, turned on its facts and confined to that case alone. 16. Applying the aforesaid legal position, no doubt is left that order passed by the Disciplinary Authority on 31st December, 1985/9th August, 1986 and the order passed by the Appellate Authority in exercise of his powers under Regulation 17 merged in the order of the Reviewing Authority passed on 21-9-1988. It is the order of Reviewing Authority dated 21-9-1988 that holds the field and is the only operative order. The submission of the learned counsel for petitioner that Reviewing Authority having only affirmed the order of Disciplinary Authority and the order of Appellate Authority, the principle of merger is not attracted, is only noted to be rejected. Where review petition is filed before Reviewing Authority under Regulation 18, the Reviewing Authority may reverse the order/orders under review; it may modify the order/orders; it may enhance the penalty or may simply dismiss the review petition. In law, the order of confirmation passed by Reviewing Authority is quite as efficacious as an operative order as an order of reversal or modification. 17. As the order of the Disciplinary Authority and the order of the Appellate Authority have merged in the order of the Reviewing Authority and that order is only operative order which is not under challenge as the application of the petitioner in challenging the order of Reviewing Authority has already been dismissed by this Court vide order dated 23-4-2001 and the said order has not been interfered with by the Apex Court in Special Leave Petition filed by the petitioner, we are of the considered view that merits of the matter cannot be gone into and the writ petition has to be dismissed on that ground alone. 18. We, accordingly, dismiss the writ petition. Rule is discharged. No costs.

Author: R Lodha

Radha D. Agarwal vs Union Of India (Uoi) And Ors. on 4 March, 2002

Bombay High Court

[Complete Act]

Central Government Act

Court No. - 50 Case :- CRIMINAL REVISION DEFECTIVE No. - 345 of 2010 Petitioner :- Smt. Dharmwati Respondent :- State Of U.P. & Another Petitioner Counsel :- Harish Chandra Mishra Respondent Counsel :- Govt. Advocate Hon'ble S.C. Agarwal,J. Ref:- Delay Condonation Application No. 219372 of 2010. Issue notice to the opp. party no. 2. Counter affidavit may be filed within four weeks on delay condonaiton application. Rejoinder affidavit, if any, may be filed within a week thereafter. List on 14.9.2010 for consideration on delay condonation application. Order Date :- 4.8.2010 Gss

Smt. Dharmwati vs State Of U.P. & Another on 4 August, 2010

Allahabad High Court

Crl. Misc. No.M-27818 of 2009 (O&M) Vinita Sharma & another vs. State of Punjab & others Present: Mr. R.S.Manhas, Advocate for the petitioners. Mr. A.S.Brar, Sr. DAG, Punjab. **** December 02, 2009 (AJAY TEWARI) sonia JUDGE Learned counsel for the petitioners states that in view of the stand taken by the petitioner (Annexure R-2), this petition has been rendered infructuous. Consequently, this petition is dismissed as has been rendered infructuous.

Present: Mr. R.S.Manhas vs Unknown on 2 December, 2009

Punjab-Haryana High Court

Gujarat High Court Case Information System Print LPA/36/2011 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No. 36 of 2011 In SPECIAL CIVIL APPLICATION No. 13379 of 2010 To LETTERS PATENT APPEAL No. 47 of 2011 In SPECIAL CIVIL APPLICATION No. 13390 of 2010 ========================================================= PARMAR ASHOK RAMSINGBHAI - Appellant(s) Versus BHAVNAGAR MUNICIPAL CORPORATION - Respondent(s) ========================================================= Appearance : MR GK RATHOD for Appellant(s) : 1,MR MUKESH H RATHOD for Appellant(s) : 1, MR HS MUNSHAW for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE V. M. SAHAI and HONOURABLE MR.JUSTICE G.B.SHAH Date : 24/02/2011 ORAL ORDER(Per : HONOURABLE MR.JUSTICE V. M. SAHAI) Appeals are ADMITTED. (V. M. SAHAI, J.) (G.B.SHAH, J.) Umesh/     Top

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

Parmar vs Bhavnagar on 24 February, 2011

Gujarat High Court

Court No. - 20 Case :- BAIL No. - 2316 of 2010 Petitioner :- Ram Lakhan Yadav Respondent :- The State Of U.P. Petitioner Counsel :- Atul Verma,Saurabh Kumar Srivastava Respondent Counsel :- GoVt.AdVocate Hon'ble Ra° Mani Chauhan,J. Learned A.G.A. files counter affidavit, which is taken on record. Learned counsel for the applicant prays for and is granted two weeks' time to file rejoinder affidavit. List thereafter. Order Date :- 10.5.2010 Renu

Ram Lakhan Yadav vs The State Of U.P. on 10 May, 2010

Allahabad High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM Crl.MC.No. 3117 of 2010() 1. C.SIVARAJ, S/O.CHITHAMBARA GOUNDER, ... Petitioner Vs 1. STATE OF KERALA, ... Respondent For Petitioner :SRI.LIJI.J.VADAKEDOM For Respondent :SRI.P.A.RABEEZ The Hon'ble MR. Justice V.RAMKUMAR Dated :05/08/2010 O R D E R V. RAMKUMAR, J. = = = = = = = = = Crl.M.C.No. 3117 of 2010 = = = = = = = = = = = Dated: 5th day of August, 2010 ORDER Petitioner, who is the 4th accused in Crime No.74/2008 of Vaikom Police Station for offences punishable under Sections 342 and 364A read with 34 IPC and whose case is now pending before the J.F.C.M Court, Vaikom as C.P. No.23/2008, seeks a direction to the said Magistrate to release the petitioner on bail on the date of his surrender itself. 2. Admittedly, non-bailable warrants of arrest are pending against the petitioner. The circumstances under which those non-bailable warrants of arrest came to be issued against the petitioner are not discernible to this Court. It is only proper that the petitioner surrenders before the J.F.C.M Court, Vaikom and seeks regular bail.  Crl.M.C.No. 3117 of 2010 2 Accordingly, this Crl.M.C. is disposed of permitting the petitioner to surrender before the learned Magistrate and file an application for regular bail within a period of two weeks from today. In case, the petitioner complies with the above condition, his bail application shall be considered and disposed of on merits preferably on the same date on which it is filed notwithstanding the pendency of any non-bailable warrants against him. Dated this the 5th day of August, 2010 V. RAMKUMAR, (JUDGE) dmb 

C.Sivaraj vs State Of Kerala on 5 August, 2010

Kerala High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.33521 of 2009 SHRIMATI RENU DEVI & ANR Versus STATE OF BIHAR ----------- 4. 24.9.2010 Let this case be placed for admission. ( Mandhata Singh, J.) Sudip

Shrimati Renu Devi &Amp; Anr vs State Of Bihar on 24 September, 2010

Patna High Court - Orders

Gujarat High Court Case Information System Print SCA/9115/2008 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 9115 of 2008 ========================================= VIPUL MAYA GARCHAR & 1 - Petitioner(s) Versus STATE OF GUJARAT & 4 - Respondent(s) ========================================= Appearance : MR NIRAV C THAKKAR for Petitioner(s) : 1 - 2. GOVERNMENT PLEADER for Respondent(s) : 1, None for Respondent(s) : 2 - 5. ========================================= CORAM : HONOURABLE THE ACTING CHIEF JUSTICE MR. M.S.SHAH and HONOURABLE MR.JUSTICE D.H.WAGHELA Date : 10/07/2008 ORAL ORDER(Per : HONOURABLE THE ACTING CHIEF JUSTICE MR. M.S.SHAH) Leave to amend petition and also to add names of two representatives of the persons likely to be affected by any direction which may be issued in this petition. Notice returnable on 4th August, 2008. Direct service is permitted. (M.S. Shah, Actg. C.J.) (D.H. Waghela, J.) */Mohandas     Top

Author: Mohit S. D.H.Waghela,&Nbsp;

Vipul vs State on 10 July, 2008

Gujarat High Court

W.P.(C) No.18624 of 2020 . 3. 27.8.2020 Heard Mr. T.K. Nayak, leaned counsel for the petitioner and Mr. D. Bharadwaj, learned Standing Counsel for the School & Mass Education Department through Video Conferencing Mode. According to Mr. Nayak, the petitioner is an approved employee of an aided educational institution and is receiving Block Grant. However, the authorities are not extending the benefits of the Orissa Education (Leave of Teachers and other Members of the Staff of Aided Educational Institutions) Rules, 1977, the Orissa Aided Educational Institutions Employees Retirement Benefit Rules, 1981 and the Orissa Aided Educational Institutions Employees General Provident Funds Rules, 1983 to such employees receiving Block Grant. In this context, he relies on the decision of this Court in the case of Ritanjali Giri @ Paul v. State of Orissa & others reported in 2016 (I) ILR CUTTACK 1162. He further submits that though highlighting all his grievances, the petitioner has filed a representation on 5.2.2020 under Annexure-3 before opposite party no.1, however, till date nothing has been done in the matter. Further, he prays that a direction be given to the said opposite party to dispose of the said representation within a stipulated time period. Considering the submissions made and without expressing any opinion on the merits of the case, this Court directs the opposite party no.1 to take a decision on the representation dated 5.2.2020 in accordance with law within a period of three months from the date of receipt of copy of this order and communicate the result of such exercise to the petitioner. The writ application is accordingly disposed of. Learned counsel for the parties may utilize the soft copy of this order available in the High Court's Website or print out thereof at par with certified copy in the manner prescribed vide amit Court's Notice No.4587 dated 25.3.2020. ............................... Biswajit Mohanty, J.

WP(C)/18624/2020 on 27 August, 2020

Orissa High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10199 of 2011 1. Raj Vimal under the Guardianship of his father Sri Tarkeshwar Prasad Gupta, resident of Bakerganj, P.S. Pirbahore, Patna-800004. 2. Ranjeet Kumar under the Guardianship of his father Sri Arun Kumar Singh, resident of village - Khajpura, P.O. B V College, District-Patna. 3. Navneet Aryan under the Guardianship of his father Shyam Balak Ram, resident of Road No.7, Quarter No.21/800, L B S Nagar, Bailey Road, Patna-23. Versus 1. Central Board of Secondary Education, Delhi, through its Chairman. 2. The Chairman, Central Board of Secondary Education, Delhi. 3. The Controller of Examination, Central Board of Secondary Education, Delhi. 4. The Regional Officer, Regional Office, Central Board of Secondary Education, 8th Floor, BSFC Building, Fraser Road, Patna-1. with CWJC No.10232 of 2011 1. Monu Yadav under the Guardianship of his mother Meena Devi, resident of Anita Niketan, Shastri Nagar, Patna-14. 2. Utkarsh Kranti under the Guardianship of his father Lal Mohan Ram, resident of C/o Sri B K Singh, In front of Group 'D' Quarters, Shastri Nagar, Patna-14. 3. Prince Kumar under the Guardianship of his mother Bimla Devi, resident of House of Chandeshwar Singh, Aashram Gali, Bailey Road, Patna-14. 4. Santosh Kumar Thakur under the Guardianship of his father Ram Shreshth Thakur, resident of House of Gautam Kumar Singh, North Sheikhpura, P O - B V College, Patna-14. 5. Amar Singh under the Guardianship of his father Abhimanyu Kumar Singh, resident of Lt. Upendra Singh, IGIMS, Patna. 6. Gauhar Kamil under the Guardianship of his father Md. Kamil Akhtar Siddiqui, resident of H No.45, Old Azimabad Colony, P S - Sultanganj, Patna - 800 006. Versus 1. Central Board of Secondary Education, Delhi, through its Chairman. 2. The Chairman, Central Board of Secondary Education, Delhi. 3. The Controller of Examination, Central Board of Secondary Education, Delhi. 4. The Regional Officer, Regional Office, Central Board of Secondary Education, 8th Floor, BSFC Building, Fraser Road, Patna-1. with CWJC No.11314 of 2011 Mayank Mani under the Guardianship of his fataher Sri Nagmani Prasad Shrivastawa resident of Janta Cinema Road, Behind Cinema Road, Post and District - Gopalganj, currently residing at opposite of 2 Hope Narayani Apartment, Patel Chowk, C/o Shri Jai Kumar Sharma, Bailey Road, Khajpura, Patna-14. Versus 1. Central Board of Secondary Education, Delhi, through its Chairman. 2. The Chairman, Central Board of Secondary Education, Delhi. 3. The Controller of Examination, Central Board of Secondary Education, Delhi. 4. The Regional Officer, Regional Office, Central Board of Secondary Education, 8th Floor, BSFC Building, Fraser Road, Patna-1. with CWJC No.12727 of 2011 Rozy Singh under the Guardianship of her Father Vinay Kumar Singh son of Sri Sheo Ashray Singh, resident of village & P.O. Dharampura, P.S. Daudpur, District - Saran (Bihar). Versus 1. Central Board of Secondary Education, Delhi, through its Chairman. 2. The Chairman, Central Board of Secondary Education, Delhi. 3. The Controller of Examination, Central Board of Secondary Education, Delhi. 4. The Regional Officer, Regional Office, Central Board of Secondary Education, 8th Floor, BSFC Building, Fraser Road, Patna-1. with CWJC No.11817 of 2011 Bimla Chandra Sinha, under the Guardianship of his mother Niloo Sinha, minor son of Sri Braj Kishore Prasad Sinha, resident of Mohalla - Mahatma Gandhi Nagar, South of Budha Dental College, P S - Patrakar Nagar, District & Town - Patna. Versus 1. Central Board of Secondary Education, Delhi, though its Chairman. 2. The Chairman, Central Board of Secondary Education, Delhi. 3. The Controller of Examination, Central Board of Secondary Education, Delhi. 4. The Regional Officer, Regional Office, Central Board of Secondary Education, 8th Floor, BSFC Building, Fraser Road, Patna-1. ----------- rkp ( Ajay Kumar Tripathi, J.) For the petitioners : M/S. Y. V. Giri, Sr. Advocate, Raju Giri, Ashish Giri and Sudhir Kumar. For the CBSE : Mr. Vinay Krishna Tripathy. ____ 05. 19.8.2011 Many writ applications came to be filed by the students who sat in 10+2 Examination conducted by the CBSE 3 in the year 2011. Since there was large scale failure reported in mathematics as well as some other papers, big hue and cry was raised by the candidates not only before the CBSE for re- evaluation/re-totalling but even in the media as well as writ applications came to be filed thereafter. Since a large number of students were directly affected by the result also included certain candidates who had done well in the competitive examinations, the Court decided to set up a committee to do a random check of the answer-sheets of the candidates in various subjects especially those of the petitioners, who were before this Court. A committee of three persons was set up. Two names came to be recommended by the Court who have a name and reputation in the field and one person came to be nominated by the Chairman, CBSE. This was based on the direction issued by the Court on 29.7.2011. The committee has tendered a report in sealed cover to Court for its perusal. The committee has meticulously done their job and given a report and have also opined that on random examination of the answer scripts marks have been awarded quite accurately and according to the marking scheme. If this is the opinion of the members of the committee who have nothing to do with CBSE then there is no reason to disbelieve their finding and embark on any other investigation or enquiry in this regard. The committee has 4 specially examined the answer-sheets of all the petitioners and no infirmity which can be said to be glaring in any manner has been pointed out. In view of the same, learned counsels representing the petitioners would not like to push the matter any further. Matter is allowed to rest. Writ applications are dismissed. The report tendered to the Court is being returned to the counsel appearing on behalf of the CBSE for their record.

Rozy Singh vs The Cental Board Of Secondary on 19 August, 2011

Patna High Court - Orders

Court No. - 6 Case :- WRIT - C No. - 38743 of 2010 Petitioner :- Veer Sain Respondent :- Preceding Officer, Learned Labour Court, Ghaziabad &Another Petitioner Counsel :- M.K. Singh Sengar,I.S. Tripathi Respondent Counsel :- C.S.C. Hon'ble Prakash Krishna.J. Notice on behalf of respondent No. 1 has been accepted by the learned standing counsel. Issue notice to respondent No.2. Order Date :- 7.7.2010 IB (Prakash Krishna,J)

Veer Sain vs Preceding Officer, Learned ... on 7 July, 2010

Allahabad High Court

> Title: Need to look into the problems being faced by the opium growers in Madhya Pradesh. डॉ. लक्ष्मीनारायण पाण्डेय (मंदसौर):  महोदय, ओपियम की खेती ऐसी है जो केंद्र सरकार के वित्त मंत्रालय के नारकोटिक्स विभाग द्वारा जारी किए गए लाइसेंस के अधीन होती है। मध्य प्रदेश के रतलाम, मंदसौर तथा नीमच जिले, राजस्थान के कतिपय जिले जिनमें झालावाड़, चित्तौड़ और प्रतापगढ़ क्षेत्र  प्रमुख हैं तथा उत्तर प्रदेश के जिले हैं, जहां अफीम की काश्त लाइसेंस के आधार पर होती है, वहां फसल में भयंकर रोग लगा है जबकि निर्धारित औसत सरकार को ही देनी होती है। अगर सरकार को निर्धारित औसत नहीं देते हैं तो उनका लाइसेंस निरस्त हो जाता है और वे अगले वर्ष खेती करने योग्य नहीं रह जाते हैं। इस दशा में प्राकृतिक प्रकोप के कारण फसल में जो रोग लगे हैं उनका कोई उपचार नहीं हो सका है। मैं चाहता हूं कि जो औसत केंद्र सरकार को दी जाने वाली है उसमें कमी की जाए क्योंकि इस खेती में हजारों किसान लगे हुए हैं। केवल मध्य प्रदेश में 50,000 किसान हैं, राजस्थान और उत्तर प्रदेश में लाखों परिवार इसमें लगे हुए हैं। इन परिवारों पर किसी प्रकार का संकट न आए। वे आगामी वर्ष के लिए फिर से लाइसेंस प्राप्त कर खेती कर सकें और अपने तथा अपने परिवार का भरण पोषण कर सकें। अन्यथा किसानों के सामने मरण स्थिति पैदा हो जाएगी और वे आत्महत्या करने को मजबूर हो जाएंगे। सरकार का वित्त मंत्रालय का नारकोटिक्स विभाग इस तरफ  ध्यान दे।

Need To Look Into The Problems Being Faced By The Opium Growers In ... on 18 February, 2009

Lok Sabha Debates

Gujarat High Court Case Information System Print CR.A/850/2001 5/ 5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 850 of 2001 For Approval and Signature: HONOURABLE MR.JUSTICE Z.K.SAIYED ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= HANIFSHA ABDULSHA DIWAN & 1 - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR GC RAY for Appellant(s) : 1 - 2. MR RC KODEKAR, APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 01/08/2011 ORAL JUDGMENTThe appellants - original accused have filed this Appeal under Section 374 of Cr. P.C., challenging the Judgment and order dated 18th August, 2001, passed by the learned Additional Sessions Judge, Vadodara, in Sessions Case No. 06 of 1999, whereby the learned Additional Sessions Judge (i) has held the appellant No.1 - original accused No.1 guilty of the offence under Sections 323 of I.P. Code and awarded sentence to suffer rigorous imprisonment for 3 (three) months and to pay a fine of Rs. 500/-, and in default of payment of fine the appellant - accused was directed to undergo S.I. for further 7 (seven) days; and (ii) has held the appellant No.2 - original accused No.2 guilty of the offence under Sections 323 of I.P. Code and awarded sentence to suffer simple imprisonment for 3 (three) months and to pay a fine of Rs. 500/-, and in default of payment of fine the appellant - accused was directed to undergo S.I. for further 7 (seven) days. The facts of the prosecution case are that on 29.6.1998 at 9.00 hours in the morning the complainant along with his wife was present in his house, at that time Hanifsha Abdulsha Divan and his wife Jubedaben Divan (appellants - accused herein) were giving filthy abuses to the complainant and his wife. It is alleged that the complainant and his wife have asked them not to give abuses and thereupon appellant - accused No.1 assaulted on the complainant and his wife with stick and caused injury to his wife. The complainant, therefore, raised shouts and on hearing the shouts, the people from nearby came and have intervened and scolded them. Thereafter, the complainant lodged his complaint before the Police station. The investigation was carried out by the P.S.I., Tilakvada. The offences under Sections 316, 504, 323, 506(2) of I.P. Code and under Section 135 of the Bombay Police Act have been registered against the appellants - accused. Thereafter, after necessary investigation, the charge-sheet was submitted in the Court of learned JMFC, Dabhoi. As the offence was exclusively triable by a Court of Sessions, the learned Magistrate committed the said case to the Court of Sessions. Thereafter, the charge against the accused was framed. The accused pleaded not guilty to the charge and claimed to be tried. To prove the case against the accused, the prosecution has examined the witnesses and also produced and relied upon the documentary evidence. Thereafter, further statement of the accused was recorded under Section 313 Cr. P.C. in which the accused have denied the charges alleged against him. After hearing the parties, the learned Judge has held the appellants - accused guilty for the offence under Section 323 of I.P. Code and awarded sentence as narrated above. Being aggrieved by the aforesaid Judgment and order of conviction rendered by the learned Additional Sessions Judge, Vadodara, the original accused has preferred the present appeal. Heard learned Advocate Mr. G.C. Ray, learned Advocate for the appellants - original accused and learned A.P.P. Mr. R.C. Kodekar, appearing on behalf of the State. Learned Advocate, appearing on behalf of the appellant - accused, has contended that the appellants - accused have not committed any offence as alleged against them in the charge. He has contended that without properly appreciating the evidence in its true perspective and without considering the defence raised by the accused, the trial Court has booked the accused just for the sake of conviction. He has contended that the prosecution has not produced any documentary evidence to establish the case against the appellants - accused. He has contended that there are material contradictions in the evidence of witnesses. He has contended that the witnesses have not supported the case of prosecution. Learned Advocate has also contended that he is not arguing much on the merit of the matter, but, looking to the facts of the case and looking to the fact that the matter is very old, the offence alleged to have been occurred in 1998 and, therefore, after about 14 years it will not be appropriate to send the appellants - accused, that too, one of the accused is a lady accused, in jail. He has contended that the offence alleged against the appellants - accused is not serious in nature and it is a compoundable offence. He, therefore, urged that looking to the facts of the case some lenient view may be taken and instead of sending the appellants - accused in Jail, at the most, fine imposed by the learned Judge against the appellants may be enhanced. Learned APP has supported the Judgment and order passed by the learned Judge and contended that looking to the seriousness of offence, no interference of this Court is called for. Learned APP has read the oral as well as documentary evidence produced on the record and contended that looking to the evidence produced on the record, the prosecution has proved its case beyond reasonable doubt and the learned Judge has rightly held the appellant - accused guilty of the offence alleged against him. Looking to the facts of the case, no interference is required to be called for. I have gone through the Judgment and order passed by the learned Judge and also gone through the oral as well as documentary evidence produced before me. I have also considered the submissions made by the learned Advocates for the parties. I have gone through the record and proceedings of the case. I have also gone through the evidence of the prosecution witnesses and other material evidence. I have also considered the Judgment of the trial Court. From the evidence on record, it clearly appears that the learned Judge has not committed any error in holding the appellant - accused guilty of the offences charged against them. However, looking to the facts and evidence on record, in my opinion, the contention raised by the learned Advocate for the appellants requires some consideration. The learned Judge has held the appellants - accused guilty of the offence under Section 323 I.P. Code and awarded sentence of 3 months with fine. The offence alleged to have been occurred in the year 1998 and after about 14 years, it will not be appropriate to send the appellants - accused in jail. In my view, it would be, therefore, appropriate that instead of sending the appellants - accused in jail, fine imposed by the learned Judge against the appellants - accused is enhanced, the same would serve the ends of justice. In view of above, this Appeal is partly allowed. The Judgment and order of conviction and sentence dated 18.8.2001 passed by the learned Additional Sessions Judge, Vadodara, in Sessions Case No. 6 of 1999 is hereby confirmed. However, the sentence is reduced and modified to the extent that the appellants - accused are convicted for the offence under Section 323 of I.P. Code and they are ordered to pay fine of Rs.1000/- each, instead of imprisonment for 3 months and to pay a fine of Rs.500/- each i/d to further undergo SI for 7 days. It is made clear that if the appellants fail to pay fine of Rs.1000/- each, then the order of sentence, awarded by the learned Judge, shall remain. The appellants are directed to deposit the amount of fine before the trial Court within a period of four weeks, failing which the trial Court shall issue non-bailable warrant against them to effect their arrest. On depositing the amount of fine, the bail bonds of the appellants stand discharged. R&P to be sent back to the trial Court immediately. (Z.K.SAIYED, J.) sas     Top

Author: Z.K.Saiyed,

Hanifsha vs Unknown on 1 August, 2011

Gujarat High Court

an> Title: Need to take steps to curb the practice of Child labour in the Country. SHRI SUNIL KHAN (DURGAPUR): With credible estimates ranging from 60 to 115 million, India has the largest number of working children in the world. Whether they are sweating in the heat of stone quarries, working in the fields sixteen hours a day, picking rags in city streets, or hidden away as domestic servants, these children endure miserable and difficult lives. They earn little and are abused much. They struggle to make enough to eat and perhaps to help feed their families as well. They do not go to school; more than half of them will never learn the barest skills of literacy. Many of them have been working since the age of four or five, and by the time they reach adulthood they may be irrevocably sick or deformed-they will certainly be exhausted, old men and women by the age of forty, likely to be dead by fifty. Most or all of these children are working under some form of compulsion, whether  from their parents, from the expectations attached to their caste, or from simple economic necessity. At least fifteen million of them, however, are workings virtual slaves and these are the bonded child labourers of India. This report is about them. “Bonded child labour” refers to the phenomenon of children working in conditions of servitude in order to pay off a debt. The debt that binds them to their employer is incurred not by the children themselves, but by their relatives or guardians-usually by a parent. In India, these debts tend to be relatively modest, ranging on average from 500 rupees to 7,500 rupees depending on the industry and the age and skill of the child. The creditors-cum-employers offer these “loans” to destitute parents in an effort to secure the labour of a child, which is always cheap, but even cheaper under a situation of bondage. The parents, for their part, accept the loans. Bondage is a traditional worker-employer relationship in India, and the parents need the money-perhaps to pay for the costs of an illness, perhaps to provide a dowry to a marrying child, or perhaps-as is often the case-to help put food on the table. Supreme Court of India in its Judgment dated 10th  December, 1996 in writ petition (Civil) No. 465/1986 that simultaneous action in all district of the country, withdrawal of children working in hazardous industries, contribution of Rs. 20, 000/ per child to a welfare fund to be established for the purpose.             I urge upon the Government to follow the Supreme Court orders.

Need To Take Steps To Curb The Practice Of Child Labour In The Country. on 6 December, 2006

Lok Sabha Debates

JUDGMENT Rakesh Tiwari, J. 1. Heard counsel for the parties and perused the record. The petitioner who was appointed as Police Constable has come up in this writ petition against the order of termination of his services dated 12.9.2007 passed by the Senior Superintendent of Police, Agra. The counsel for the petitioner submits that since the fundamental right of the petitioner as guaranteed under Article 311(2) of the Constitution has been violated, hence he has come up in this writ petition before this Court. 2. He also submits that Rule 8(2) of the Uttar Pradesh Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991 provides that no Police Officer shall be dismissed, removed or reduced to rank except after proper inquiry and disciplinary proceedings as contemplated in the enquiry. 3. The counsel for the petitioner further submits that the petitioner has not been afforded an opportunity of hearing before passing the impugned order of termination hence, the principle of natural justice has been violated. 4. In support of the aforesaid contention he has placed reliance upon the following rulings. 1. (2002) 1 UPLBEC-705 Pradeep Kumar Singh v. U.P. State Sugar Corporation and Anr. And 2. (2006) 3 UPLBEC 2569 Sadan Lal v. State of U.P. and Ors. 5. In paragraph 13 of the judgment rendered in Pradeop Kumar Singh (supra) the Court has placed reliance upon the judgment of the case of Whirlpool Corporation v. Registrar of Trade Markets, Mumbai and Ors. in which it was held- Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is thwart if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operator as a bar in at least three contingencies, namely where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. 6. In case of Sadan Lal (supra) the Court allowed the writ petition by setting aside the termination order of the petitioner holding that the services of the petitioner were terminated without issuing any charge sheet and without giving an opportunity of hearing and held that such termination is illegal and is in violation of the relevant provisions of law. In that case the Court has not touched the question of alternative remedy available to the petitioner. 7. Thus the Apex Court itself in the case of Whirpool Corporation held that remedy under Article 226 of the Constitution is discretionary. Though alternate remedy may not be a bar but where a statutory remedy is provided the High Court may not entertain a writ petition. 8. In my opinion, the petitioner can also raise all these questions i.e. violation of the Fundamental rights, violation of the principle of natural justice and not affording of opportunity of hearing before the Revisional Court as well as before the U.P. Public Services Tribunal. 9. The allegations against the petitioner are that the Chowki Incharge has taken Rs. 5,000/- in collusion with the petitioner in a criminal case, which is quite serious in nature. 10. Moreover, the appeal is provided under Section 20 of the Uttar Pradesh Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991. The appeal is a continuation of proceedings. The petitioner has not only a statutory remedy of appeal under Section 20 of the aforesaid Rules but has also a remedy of revision under Section 23 of the aforesaid Rules if he is aggrieved by the decision of his appeal under Section 20 of the aforesaid Rules. Even thereafter the petitioner has an efficacious and alternative remedy of approaching the U.P. Public Services Tribunal if he is aggrieved by the order under revision, hence this Court is not inclined to interfere in this matter. 11. For the reasons stated above, the writ petition is dismissed on the ground of alternative remedy. No order as to costs.

Author: R Tiwari

Pushpendra Singh Son Of Sri Mahesh ... vs State Of U.P. Through Principal ... on 1 October, 2007

Allahabad High Court

IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Cr.Misc. NO. M 30248 of 2008 DATE OF DECISION : 6.3.2009 Parveen Bawa ......PETITIONER VERSUS State of Haryana ......RESPONDENTS PRESENT: Mr. HS Sullar, Advocate Mr. PM Anand, Addl.A.G. Hry Mr. PK Gupta, Advocate. M.M.S.BEDI,J. March 6 ,2009 ( M.M.S.BEDI ) TSM JUDGE This order will dispose of the present petition for bail pending trial filed by Parveen Bawa, who is the wife of Yashpal. The case of the prosecution is that husband of the petitioner Yash Pal and her three sons had reached the matrimonial house of the complainant Janak Ram pursuant to the call given by Rishu Bawa wife of Janak Ram and attacked Janak Ram , his father Raj Kumar and brother Jitender , resulting in the death of Raj Kumar and Jitender. So far as the petitioner is concerned, she is a lady and is alleged to have raised a lalkara and also participated in the occurrence by giving kick blows while the others had inflicted injuries with their respective weapons held by them. Taking into consideration the fact that the petitioner is a lady and was not armed with any weapon and she having been in custody since July 2007, can be granted the concessio of bail. The petition is allowed and the petitioner is ordered to be released on bail on furnishing bail bonds/surety bonds to the satisfaction of the trial Court.

Parveen Bawa vs State Of Haryana on 6 March, 2009

Punjab-Haryana High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 30011 of 2010(B) 1. PENTAGON HEALTH CARE PVT.LTD. A-17 ... Petitioner Vs 1. THE COMMERCIAL TAX INSPECTOR ... Respondent For Petitioner :SRI.V.M.KURIAN For Respondent : No Appearance The Hon'ble MR. Justice C.K.ABDUL REHIM Dated :30/09/2010 O R D E R C. K. ABDUL REHIM, J. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= W.P.(C) No. 30011 of 2010 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 30th day of September, 2010 JUDGMENT Issue pertains to detention of a scanning machine transported from the State of Maharashtra to Caritas Hospital, Thellakom, Kottayam. According to the petitioner, they are running a scanning unit under the name and style "Life Scan" at Caritas Hospital. The machinery in question was imported from China by M/s.Siemens Ltd., on the basis of Ext.P5 order placed by the petitioner. Ext.P7 is the Bill of Entry, which will reveal that M/s. Siemens Ltd. had imported the goods at Navi Mumbai Port. According to the petitioner, the transport was effected from the port at Mumbai as a sale in the course of import. The transport was intercepted at the Commercial Tax Check Post at Bangara, Manjeswar, on issuing Ext.P8 notice under section 47(2) of the Kerala Value Added Tax Act, 2003. The  W.P.(C) No. 30011/2010 2 reason for detention mentioned is that even though the address shown in Form No.16 which accompanied the transport was that of the petitioner at Angamaly, the goods are consigned for delivery at 'Life Scan' CT Centre, Caritas Hospital, Thellakom, Kottayam. It is further mentioned that there was no document to prove that the transaction was a sale in the course of import, coming within the purview of section 5(2) of the KVAT Act. Under the above circumstances, the petitioner was requested to furnish security to the tune of Rs.11,85,821/-. 2.It is contended that the petitioner is a company incorporated, having its registered office at Angamaly. 'Life Scan' is the branch name of the petitioner's concern situated at Caritas Hospital, Thellakom. Ext.P1 receipt as well as Ext.P2 bank statement are produced to show that 'Life Scan' is owned by the petitioner company. Ext.P3 is an agreement dated 4-3-2010 executed by the petitioner company with the Caritas Hospital, which will indicate that the petitioner has been provided with space for establishing  W.P.(C) No. 30011/2010 3 a scan centre on the basis of a licence fee to be paid. The petitioner has also produced Form 16 declaration, which accompanied the transport, in which it is clearly mentioned that the ownership is vested with the petitioner company and the place to which the goods were transported is their unit at Thellakom, Kottayam. On the basis of the above documents, learned counsel for the petitioner contended that there is clear evidence to show that the goods in question was imported and the sale was effected in the course of import. Therefore, the reason mentioned for detention was not at all sustainable, is the contention. 3. Learned Government Pleader appearing for the respondents, on the basis of the instructions, submitted that at the time of transport the goods were not accompanied with any document which will indicate that the goods in question was imported form the foreign country, and also to the effect that the transport was pursuant to a sale in the course of import. It is pointed out that the question as to whether the transport was genuine and as to whether there  W.P.(C) No. 30011/2010 4 was any attempt of evasion in payment of tax due are matters which need be decided on finalizing the enquiry. Learned Government Pleader submitted that the petitioner is not a registered dealer and therefore they should be insisted for providing adequate security either by way of Bank Guarantee or by way of any security as provided under Rule 9(2) of the KVAT Rules. On the other hand, the petitioner requested for a direction to the respondents to release the goods, on the petitioner furnishing simple bond without sureties. 4. Considering the fact that the detention need be followed by an enquiry, I am not proposing to enter upon any findings regarding the liability for imposition of penalty under section 47(6). At the same time, I am of the opinion that the goods being an imported scanning machine worth more than Rs.1.2 crores need not be detained pending finalization of such enquiry. Furnishing any form of security, equivalent to the value demanded under Ext.P8, will definitely cause severe prejudice to the petitioner.  W.P.(C) No. 30011/2010 5 Therefore, I am of the opinion that the goods can be directed to be released, on the petitioner furnishing a security bond without sureties and also furnishing an undertaking in a form of an affidavit to the effect that they will keep the scanning machine in tact without parting with ownership or possession and without removing the same from the cite at Caritas Hospital, Thellakom P.O., Kottayam till finalization of the enquiry. 5. In the result, the writ petition is disposed of directing the respondents to release the goods along with vehicle detained under Ext.P8, on the petitioner furnishing Security Bond as provided under the KVAT Rules, without sureties, for the amount demanded in Ext.P8. The petitioner will also furnish an undertaking in the form of an affidavit sworn to by the Managing Director of the petitioner company before a Notary Public, to the effect that the petitioner will not part with ownership or possession of the goods under transport and that they will not remove the same from the cite at Caritas Hospital,  W.P.(C) No. 30011/2010 6 Thellakom P.O., Kottayam until finalization of the proceedings under section 47. 6. The competent authority under section 47 of the KVAT Act is directed to expedite the enquiry and to finalize the same, after affording an opportunity of hearing to the petitioner, as early as possible, at any rate within a period of two months from the date of release of the goods. C. K. ABDUL REHIM, JUDGE. mn.

Pentagon Health Care Pvt.Ltd. ... vs The Commercial Tax Inspector on 30 September, 2010

Kerala High Court

'V ' __ faggot-,..V_WidoW' "si-'« ' ' MnGeorg'c. I)':-§Quza, ' Residingat Ne, V V . Pa.mgrove, Read, 'I.-'.3a1':1ga1i':3::f:'_c=,-'1~«-~ 560 046. ...RESPON']DENT " of the Constitution of India with a prayer to quash A ' /the impugiled order dated 24.02.2007 passed by by IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 2nd DAY OF APRH. 2009 BEFORE V R THE HON'BLE MR. JUSTICE B.s.PAz§t§; fj " \ WRIT PETITION NO.6765:/2OC7_(§M;'-'Cf'C%,. BETWEEN : Smt.Pushpa, Aged 40 years, V A V , D/o.Late Sri.PersUram;Naid"i3, _ And Late " Residing at Bangalore---- 560 035.' 4, ...PE'I'ITIONER (Efy Paztilen, Adv. (abse:r1t)) AND: A %% % Mrs. ifiéozfge D'S-»o__1i2a, ' "'1"}<3c;xf, ' ~ 1; " Shalter Aggaxtmcnt, This writ: petition is filed under Articles 226 and XXVI Addl. City Judge, Mayo Hall, Bangalore dismissing the Execution Petition No.15013/2005 i.e., Annexure 'G'. This writ petition coming on for ~ hearing, this day, the Court made the followmgfl ff ORDER X Notice issued to the mspefident .13' a postal Shara 'Address£:&:}:'~~{i_cc<é~;:¢ié¢é:ci-:",:4.' i§I'0_step'¥.s 7a1*xe taken by the petitioner. 2. 'twice, there is no on both the occasiofis. ._ ' gietition is dismissed for default S d /.1. Judge

Author: B.S.Patil

Smt Pushpa vs Mrs George D'Souza on 2 April, 2009

Karnataka High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA FA No.517 of 1982 BIPAT RAUT & ORS Versus DEO SHARAN RAJ & ORS ----------- Sanjeev/- (Mungeshwar Sahoo, J.) 30. 25.11.2010. Perused the office note dated 16.11.2010. Heard the learned counsel for the appellant on I.A. No.2498 of 2004. This is a substitution application which is within time. Accordingly, this substitution application is allowed and the legal representatives of the deceased respondent No.2, namely, Narain Raut as mentioned in detail in paragraph 2 of the substitution application are substituted in place of the deceased respondent No.2. The appellant shall take steps for appeal notice on the newly substituted respondents in ordinary process within two weeks. Heard the learned counsel for the appellant on I.A. No.2499 of 2004. This application has been filed on behalf of the appellant for expunging the name of the appellant No.1 on the ground that his legal representative are already on record as appellant No.2 to 4. The substitution application is allowed and the name of the appellant No.1 is expunged. Heard the learned counsel for the appellant 2 on I.A. No.6138 of 2009. This application has been filed for expunging the name of respondent No.6, namely, Mostt. Manturni on the ground that her legal representatives are already on record as respondent No.7 to 10. Accordingly, the application is allowed and the name of the respondent No.6 is expunged. The learned counsel for the appellant submitted that another substitution application being I.A. No.626 of 2010 has been filed on 25.01.2010. The office is directed to list this said application under the heading for Orders on Petition.

Bipat Raut &Amp; Ors vs Deo Sharan Raj &Amp; Ors on 25 November, 2010

Patna High Court - Orders